BREAKING: Federal judge rules in favor of two landowners in Atlantic Coast Pipeline case

Marvin Winstead Jr. (Photo: Lisa Sorg)

Marvin Winstead Jr.’s pine tree will survive another day. US District Court Judge Terence Boyle ruled today that Winstead and fellow defendant Ron Locke do not have to allow Atlantic Coast Pipeline contractors on their property to begin tree-cutting — at least for now.

Earlier this week in Elizabeth City, Judge Boyle heard arguments from both attorneys for Atlantic Coast Pipeline, LLC, a company formed by co-owners Dominion Energy and Duke Energy, and lawyers for the landowners over tree-cutting and access to land.

ACP, LLC had asked Boyle to force Winstead and Locke to allow them access to their properties, even though they had not yet negotiated payment for the condemned land. ACP wants to exercise eminent domain on 2.27 acres of Locke’s farm and more than 11 on Winstead’s — including the family’s 100-year-old pine tree that lies in the pipeline’s path.

In his 14-page ruling, Boyle, a George H.W. Bush nominee, determined that neither Winstead nor Locke had not been given a reasonable opportunity to negotiate with ACP, LLC.

In Winstead’s case, surveyors allegedly trespassed on his property. Although Winstead did receive an offer from ACP, LLC in January 2016, he testified Wednesday that a surveyor’s crew chief subsequently told him his land wasn’t even on the pipeline route.

Locke testified that he had tried to communicate with ACP, LLC about compensation, but that the company had failed to contact him.

Eminent domain is a power usually reserved for government to build projects, such as roads, that are in the public interest. However, there is a legal precedent for private companies to use the authority as long as the project is also in the public interest.

While Boyle found in favor of Winstead and Locke, the rest of his order supported ACP, LLC’s claims. Those include that the company would suffer “irreparable harm” if access isn’t granted, and that it is in the public interest that ACP gain that access to build the pipeline.

Boyle also ruled that ACP, LLC can invoke eminent domain on property belonging to 11 other landowners in Northampton, Halifax, Nash and Cumberland counties, and start construction on those tracts.

However, Boyle wrote in his ruling, “to protect the landowners,” ACP, LLC must deposit an amount three times the appraised value of each parcel it plans to condemn with a federal district court clerk. If the appraised value is less than $3,000, then ACP, LLC must deposit $9,003.

The utilities also must obtain a bond twice the appraised value of the parcels.

The payments are only for security, Boyle wrote, and not the compensation itself.

Also today, as Policy Watch reported, ACP, LLC asked the Federal Energy Regulatory Commission for a deadline extension to begin its tree-cutting. That timbering was supposed to be finished by March 31.

Courts & the Law, Defending Democracy, News

Cooper appoints Elections, Ethics Board after more than a year of vacancy

Gov. Roy Cooper appointed eight members today to the State Board of Elections and Ethics Enforcement after leaving it vacant for more than a year.

He was required to choose from a list of 12 nominees — six provided by the state chair of the Democratic Party and six provided by the state chair of the Republican Party.

Here are the eight members with edited descriptions provided by the Governor’s office:

  • Andy Penry of Raleigh as a Democratic member. Penry is an attorney at Penry Riemann.
  • Joshua Dale Malcolm of Pembroke as a Democratic member. Malcolm is the chief legal officer, general counsel and assistant secretary to the UNC Pembroke Board of Trustees. Malcolm currently serves as a justice on the Supreme Court of the Lumbee Tribe of North Carolina.
  • Valerie Johnson of Durham County as a Democratic member. Johnson is an attorney at Copeley Johnson and Groninger.
  • Stella Anderson of Watauga County as a Democratic member. Anderson is a professor in the Department of Management for the College of Business at Appalachian State University.
  • Stacy “Four” Eggers, IV of Boone as a Republican member. Eggers is an attorney with Eggers Law.
  • John Randolph Hemphill of Raleigh as a Republican member. Hemphill is an attorney with Hemphill, Gelder and Monroe.
  • John Malachi Lewis of Mt. Pleasant as a Republican member. Lewis is the deputy counsel for the North Carolina Republican Party.
  • Ken Raymond of Winston Salem as a Republican member. Raymond owns and manages Triad Notary Service.

Lawmakers passed a measure in December 2016 merging the State Board of Elections and the State Ethics Commission.

They have since changed the structure of the merged Board three times. House Bill 90, the most recent change which became law today, requires a 9-member board — four Democrats, four Republicans and one unaffiliated member.

Those eight members Cooper appointed will select two unaffiliated nominees for Cooper to appoint to the ninth spot on the state Board.

Board spokesman Pat Gannon said that naming those two nominees would be the newly appointed Board’s first order of business at its first scheduled meeting.

A meeting date has not yet been set, but state law directs that it be held within 14 days. Meetings are open to the public.

“We congratulate the new members of the state Board and are very grateful they chose to serve at this important time,” said Kim Westbrook Strach, executive director of the Board. “We look forward to getting to work immediately to tackle issues that have come up in the absence of a State Board and continue preparations for the 2018 elections.”

Cooper is still pursuing litigation over HB90 and the law that created the merged agency, Senate Bill 68. You can read more about that and the Board’s responsibilities here.

Mail-in absentee voting for the May 8 primary election begins Monday. One-stop early voting starts in a little over a month.

NCGOP Executive Director Dallas Woodhouse congratulated Cooper on “appointing eight respected and qualified nominees.”

“We look forward to working with all eight members of the board appointed today, and the yet to be named member reserved for a person not aligned with any political party,” he said in an email.

He said the Board’s duty would be to make the “new era of bipartisan ethics and elections enforcement successful.”

“I know our nominees are committed to finding consensus and expanding voting opportunities that are fair for all,” he added. “However we got here, it is time to set aside the political battles over the Board and for both Republicans and Democrats to make the new structure work. North Carolina Republicans will do all we can to make that happen.”

The North Carolina Democratic Party declined to comment about the appointments.

Secretary of State Elaine Marshal congratulated the new Board members in an emailed statement.

“I look forward to working with them on a smooth transition of the Lobbying Compliance Division and its functions,” she said. “We have begun discussions with the Department of Administration and the other stakeholder agencies on how to transfer the Lobbying Compliance Division. We are confident this process will proceed promptly and efficiently.”

This is a breaking news story and will be edited as updates become available.


Two days after contentious court hearing, Dominion asks FERC for more time to cut trees for pipeline

File photo by Lisa Sorg

The trees had to be cut down immediately. In fact, it should have been done yesterday. There was no wiggle room, attorneys for the Atlantic Coast Pipeline argued to a federal judge on Wednesday, and delays would cause “irreparable harm” to the utilities.

But now Dominion and Duke Energy, co-owners of the ACP, have decided that, well, maybe the issue isn’t so urgent after all.

According to documents filed today, ACP, LLC has asked the Federal Energy Regulatory Commission for a deadline extension to cut trees that are on private property in the path of the pipeline. This is a major about-face, because earlier this week, ACP, LLC had taken several landowners to court, asking a federal judge to force them to provide access to their property for tree-cutting.

The landowners have so far refused to allow ACP, LLC contractors onto their land; nor are they willing to negotiate with the utilities on fair compensation for the land that will be taken by eminent domain.

The harvesting, ACP lawyers argued, had to be complete by March 31; otherwise, the utilities would have to wait until November to comply with a migratory bird plan they had submitted to FERC and the US Fish and Wildlife Service.

At the hearing, as Policy Watch reported yesterday, landowners’ lawyers rebutted with several counter-arguments.

One, for several years, ACP, LLC had hired unlicensed surveyors and land agents to do preliminary work — work that had to be redone by certified contractors, argued Catherine W. Cralle-Jones, attorney for landowner Marvin Winstead.

And in at least one case, more than six months passed between ACP contractors’ initial contacts with landowner Ronald Locke, and any follow up.  “There is no emergency,” argued Charles Lollar, attorney for Locke.

Then the landowners’ attorneys asked an obvious question: Had ACP asked FERC or USFWS for a deadline extension?

No, ACP attorney Richard D. Holzheimer, Jr. replied, they hadn’t asked.

“Those trees will be felled now or in November,” Holzheimer rebutted. “The landowners want to delay this to harm us.”

If FERC agrees, the trees on the disputed land will stand until at least November. As for the harm to the company, it appears not to be so irreparable after all.


Commentary, News

The Week’s Top Five on NC Policy Watch

Photo credit: Ryan Monroe

1. NC students take a stand against gun violence, express deep concerns about school safety

Tallulah Cloos, 18, sometimes ponders ideal hiding spots if an active shooter were ever to terrorize her Buncombe County high school.

It’s not easy, she says. A.C. Reynolds High, located just southeast of Asheville, has a wide campus with an abundance of open spaces.

“I thought it was a weird thing to think about,” she says. “But some of my friends told me they were having these same thoughts. It’s sad that we have to think about this, but it’s necessary.”

Cloos isn’t the only one. Multiple North Carolina teens who spoke to Policy Watch this week talked of harrowing conversations inside school about how they would respond to a campus shooter, one month after a gunman wielding an assault rifle allegedly killed 17 at a Parkland, Fla., high school.

“I would like to say, ‘No, this would never happen at Riverside,’” said Joala Downey, a 17-year-old at Durham’s Riverside High School. “But honestly I’m not sure. My friends, we all just try to be positive. No one wants to think this will ever happen to them, but I don’t think the kids in Parkland thought this would ever happen to them.”

The anniversary of the Parkland shooting triggered an avalanche of campus protests across North Carolina and the United States Wednesday. Students at an estimated 3,000 U.S. schools walked out of classes for 17 minutes to memorialize those killed at the Florida school and to demand gun reforms from state and federal policymakers. [Read more…]

2. Landowners in the path of proposed Atlantic Coast Pipeline look to federal judge for relief | Read more

3. The most important political battle of 2018 continues to fly under the radar | Read more

4. The Board of Elections battle: Where things stand | Read more

5. New report: School segregation is on the rise in NC and it’s harming our kids| Read more


Beautiful but potentially lethal, beryllium found in groundwater at Allen plant

Allen coal ash basins (Map: Duke Energy)

Last week, Policy Watch published a story about groundwater contamination in wells around four of Duke Energy’s coal ash ponds. We covered Marshall and Cliffside on Monday; today, we look at the contamination at the Allen plant. Next week, we’ll publish results of the contamination at Sutton, Buck, Roxboro and Dan River. 

The Allen plant sits along the Catawba River and Lake Wylie in Gaston County, shortly upstream from the Charlotte Yacht Club. With five coal-fired units ranging from 57 to 61 years old, Allen has two ash ponds, one active, and the other inactive.

Combined, those ponds contain at least 11 million tons of coal ash, according to Duke Energy data from 2014. And beneath the ponds, the groundwater is contaminated with at least nine pollutants, some of them at levels far exceeding state standards. The results at Allen and 11 other plants were in 20,000 pages of data released by Duke Energy, as required by federal coal combustion residuals rules.

The wells are not used for drinking; however, groundwater can travel into surface water and drinking water wells.

One of these contaminants is beryllium, a known carcinogen. A silver-white and lightweight metal, beryllium is commonly found in coal, particularly that sourced from Appalachia. The chemical composition of coal is determined by a region’s geology; coal from the Powder River Basin in Wyoming, for example, has different properties than that in the Eastern US. Variations can occur even within the same coal bed.

(Beryllium is also found in computer motherboards and other electronics, which is why it’s important to keep that equipment out of landfills. It’s also used in the manufacture of golf clubs.)

Beryllium concentrations were detected in some samples as much as nine times the state’s groundwater standard. Arsenic, another carcinogen, was found at eight times the standard.

Selenium, which is also naturally occurring, nonetheless has been linked at high levels to coal ash. Duke University scientists found high levels of selenium in fish tissue in two lakes that received discharges from coal-fired power plants. When eaten, selenium at high levels can harm other aquatic life and birds that feed on it.

The highest level of selenium in a groundwater well near Allen was 1,970 parts per billion. The groundwater standard is 20 ppb.

The data was made public as part of the federal coal combustion residuals rules. However, Duke Energy has been conducting groundwater tests for many years and making the data publicly available. “It’s important to note than no tests have shown an unsafe impact to drinking water,” said Duke Energy spokesman Bill Norton. “While we believe dewatering and closing our basins will safely address any groundwater contamination, we will continue monitoring the thousands of test wells placed all around our sites during and long after the closure process. if the monitoring shows we need to take additional measures to ensure our neighbors’ safety, then we will do so.”

The EPA is using the recent tests results to determine whether to close more than 1,000 ash basins nationwide, but Norton noted that Duke is already planning to close the coal ash basin at Allen and all of its plants. At most plants, the basins will be fully excavated and the coal ash recycled or moved offsite; but at several, the coal ash will stay onsite in a capped and lined landfill. The basins are unlined, which allows them to leak. Lined landfills are supposed to help protect against leaks.


53 wells sampled434 samples
ContaminantMaximum contaminant level, groundwater and drinking waterRange of exceedances, lowest to highest (ppb)Number of exceedances% of samples that exceeded maximum contaminant levels
Antimony1 part per billion2.1 – 10.551
Arsenic 10 ppb4.6 – 88.381.8
Beryllium 4 ppb4.4 – 35.5163.6
Boron700 ppb702 – 234011526.4
Cadmium 2 ppb3.1 – 8.5153.4
Chromium10 ppb10.4 – 210173.9
Cobalt 1 ppb1.1 – 475020146.3
Selenium 20 ppb678 – 1970112.5
Thallium 0.2 ppb.21 – 3.1214.8