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Supreme CourtThe state Supreme Court today bypassed the Court of Appeals and took five controversial cases for direct review, exercising its rarely-used discretion and raising eyebrows over the timing, with contentious partisan elections soon getting underway.

The issues raised in the cases — school vouchers, coal ash, class certification — are hot buttons, and some of the parties involved have deep-pockets — including Duke Energy and U.S. Tobacco Cooperative

The high court took those cases despite having yet to render opinions in several high-profile cases — including the redistricting case, which has been pending since argument in January, and two cases concerning the Racial Justice Act, pending since argument in April.

Here are the cases:

Hart v. North Carolina:  This is the appeal of Superior Court Judge Robert Hobgood’s August ruling that the state’s newly-enacted school voucher program was unconstitutional because it:

1) appropriates to private schools grades K-12, by use of funds which apparently have gone to the university system budget but which should be used exclusively for establishing and maintaining the uniform system of free public schools;

2) appropriates education funds in a manner that does not accomplish a public purpose;

3) appropriates educational funds outside the supervision and administration of the state board of education;

4) creates a non-uniform system of education;

5) appropriates taxpayer funds to educational institutions that have no standards, curriculum and requirements for teachers and principals to be certified;

6) fails to guard and maintain the rights of the people who privilege the education by siphoning money from the public schools in favor of private schools; and

7) allows funding of non-public schools that discriminate on account of religion.

The case had just gotten underway in the Court of Appeals before the Supreme Court’s order today.

Cape Fear River Watch v. N.C. Environmental Management Commission:  This is Duke Energy’s appeal of Superior Court Judge Paul Ridgeway’s March ruling requiring the company to immediately eliminate the source of groundwater contamination at its coal ash pits — in advance of any clean-up plans it might later adopt.  In its opening brief in the Court of Appeals, Duke Energy argues that the Coal Ash Management Act passed by the General Assembly in August overruled the lower court’s decision.

Fisher v. Flue-Cured Tobacco Cooperative Stabilization (U.S. Tobacco Cooperative): This is an appeal of the certification of a class comprised of some 800,000 past and present tobacco farmers (per U.S. Tobacco Co-op’s brief) claiming to be entitled to and seeking payment from a $340 million reserve fund held and maintained by the cooperative.

Arnesen v. Rivers Edge Golf Club: Five cases are consolidated in this appeal, in which purchasers of vacant lots in Brunswick County sued the developer, mortgage broker, appraisers, attorneys, and BBT Bank, alleging a scheme to sell the lots at artificially inflated prices through “high-pressure, misleading sales tactics, fruadulent appraisals, unscrupulous lending practice and other conduct.”  Purchasers of the lots are appealing orders from the Business Court dismissing certain claims and defendants.

Cubbage v. N.C. State University Endowment Fund: This case concerns the pending sale of the Hofmann State Forest by the N.C. State Endowment Fund, which plaintiffs say was negotiated in secret and failed to comply with the N.C. Environmental Policy Act because the fund never obtained an Environmental Impact Statement. Wake County Superior Court Judge Shannon Joseph dismissed the case last November.

Commentary

ACoal Ashs noted in this space yesterday morning, federal regulators have been forced in recent days to put the kibosh on yet another sweetheart arrangement between Duke Energy and the McCrory administration that would have allowed the company to begin to address some of the problems in its coal ash “ponds” by draining the toxic liquid directly into rivers and streams. What could go wrong, huh?

This morning the editorial page of the Fayetteville Observer rightfully (if rather politely) criticizes the plan and issues a word of thanks to federal officials at the EPA for stepping in and putting up a big stop sign:

In late August, DENR told Duke it could begin draining all of its 33 ash ponds across the state. Three weeks later, the EPA intervened, pointing out that this would likely violate Duke’s wastewater discharge permits and allow massive amounts of polluted water to be dumped, with virtually no monitoring for the impact on water quality.

Ponds at Duke’s shut-down Cape Fear power plant, which sits upstream from water-treatment plants for Lee, Harnett and Cumberland counties, hold an estimated billion gallons of coal-ash-contaminated wastewater. According to the EPA, DENR would have allowed Duke to dump it all in the river.

A Duke vice president complained that being forced to comply with its permits may make it impossible to meet a cleanup timetable.

We’re grateful that the EPA stepped in, but sorry to see DENR again being so casual about our health and safety. We hope the feds continue to watch closely.

Let’s hope the McCrory administration doesn’t give a lot of folks good reason to get a lot less polite with their criticism in the days ahead. We’re not, however, holding our breath on that front.

Commentary

In case you missed it on Friday, Michael Biesecker at AP had another troubling story on Duke Energy’s seemingly metastasizing coal ash mess. This is the lead:

Federal environmental officials spurred North Carolina regulators to reverse a policy allowing Duke Energy to drain massive amounts of polluted wastewater from its coal ash dumps directly into the state’s rivers and lakes, according to documents.

The Southern Environmental Law Center released documents Friday showing that the North Carolina Department of Environment and Natural Resources quietly gave Duke approval on Aug. 28 to start emptying liquids from all of its 33 coal ash dumps across the state through existing drain pipes at the facilities.

Good grief! What’s next? Direct pipelines into the backyards of all of Duke’s residential customers? Meanwhile, this is from Dan Besse’s Monday morning update for the League of Conservation Voters:

Around the state…Recalculating?

Users of GPS devices can attest to the high annoyance factor of the perpetual “recalculating…” messages received when they take a wrong turn.

Perhaps that helps explain our aggravation at Duke energy’s latest “whoops” on coal ash. According to Duke, it appears that they ‘miscalculated’ the amount of toxic coal ash they have stored at leaking pits around the state by, oh, about six million tons or so. Read More

Commentary

Coal ash clean upThe Charlotte Business Journal reports that Duke Energy has decided to change its present course and bury the coal ash at another one of its South Carolina sites in a lined landfill.

Hallelujah.

As has been noted multiple times by environmental experts, moving toxic coal ash to lined landfills is the only realistic option when it comes to keeping this nasty substance out of our water supplies. And the longer Duke dithers and delays, the greater the risk that another Dan River disaster (or, God forbid, another Kingston, Tennessee calamity) will hit our state.

Fortunately, the main, high technology devices involved in moving the ash are something called a bulldozer and a dump truck. The problem is that it takes a heckuva lot of them working for heckuva long time to get the job done (which, of course, costs a heckuva lot of money).

To  which all a body can say in response is: “Tough. Duke, you made the mess along with gigantic profits on the tab of ratepayers. It’s time to get to work and repay some of the debt you owe to society.”

Let’s hope this new development from south of the border is a harbinger of something more than just a small step for the future of our environment.

News
Env NC press

Upper Neuse Riverkeeper Matthew Starr addresses the media alongside a family directly impacted by Duke Energy’s leaking coal ash pond at the Lee power plant near Goldsboro.

Advocates and activists for stronger action on coal ash than is included in the new state law that officially took effect today gathered outside the Old State Capitol in downtown Raleigh this morning to deliver more than 40,000 signatures to Governor Pat McCrory. The signatures represented roughly one North Carolinian for each ton of coal ash spilled into the Dan River at Duke Energy’s Eden facility in February.

Speakers at the event organized by the group Environment North Carolina were flanked by volunteers who held aerial photos of each of the ten coal ash dumps that will be left essentially unaddressed by the new legislation.

Kim Brewer, a former resident of Dukeville near the Buck Steam Plant in Rowan County assailed the new law as doing “nothing” to help her community. “There’s hexavalent chromium in our wells, and my two daughters were born with serious birth defects. My neighbors have suffered from brain tumors, cancer and respiratory problems that we believe are connected to coal ash pollution. We deserve a full cleanup. I don’t want any other family to go through what we’ve been through.” Read More