The most conspicuous failure in this year’s largely unsuccessful legislative session was the adjournment—or more correctly congressional-style recess— last weekend without the passage of a bill responding to the massive coal ash spill into the Dan River in February and the revelation that the other 32 Duke Energy coal ash ponds at 14 sites across the state are all leaking into the groundwater.
Both Senate President Pro Tem Phil Berger and House Speaker Thom Tillis pledged before the session began that a coal ash bill was a top priority for lawmakers this summer and Governor Pat McCrory announced a plan of his own before the session began. Though his plan lacked many specifics, McCrory too was making it clear that something had to be done to respond to the coal ash crisis.
The Senate passed a relatively weak bill that was criticized for leaving much of the decision making about coal ash regulation with the weakened Department of Environment and Natural Resources and a new politically appointed coal ash commission created by the legislation.
The Senate plan also did not ban Duke Energy from ultimately passing on the cost of coal ash clean up to ratepayers and maybe most importantly allowed the company to cap many of the ash ponds and leave them in place, a decision sharply criticized by many environmental advocates.
The House passed a bill that in some ways was even weaker. It included most of the Senate’s questionable provisions and fudged on the deadlines in the Senate plan for Duke to complete clean ups of the ponds.
The two sides appointed a conference committee to work out the differences between the two bills and then the real fireworks began out of the public eye.
Finally, not long before the recess when it was clear the two sides could not reach a final agreement, Senate leaders issued a press release blasting three of the four House negotiators for “going rogue” and insisting on tougher rules that no one had seen before, most notably a provision that would not allow coal ash ponds below the water table to be designated as low priority sites and capped in place.
In other words, the House conferees were demanding that Duke Energy clean up the ash ponds that posed the most direct threat to the groundwater, something Duke has been resisting all along.
The three “rogue” conferees included two members of the Republican House leadership, Rep. Ruth Samuelson and Rep. Chuck McGrady, along with Democratic Rep. Rick Glazier. Republican Mike Hager, a former Duke Energy employee, was also on the negotiating committee, but refused to support the tougher language about cleaning up the ponds.
But it turns out the three House members pushing for a tougher bill were not going rogue at all. In fact, in a reportedly raucous private meeting, House Republicans pledged their support for the new provision over the strenuous objections of Hager and all but certainly the behind the scenes pressure from the powerful and well-connected Duke Energy lobbyists.
As to the charge that the new provision forcing the cleanup of more of the ash ponds came out of nowhere, that has become standard operating procedure for this session of the General Assembly. Almost every bill considered by the House and Senate in the last weeks of the session included many provisions that were never heard before.
Senator Rules Chair Tom Apodaca, the most outspoken critic of the “rogue” House negotiators, is a master of backroom legislative deals and manipulating legislation at the last minute.
House Speaker Paul Stam admitted this week that he was completely unaware the budget that he supported included a clause that means growth in public school enrollment will no longer be built into the budget every year.
New provisions are nothing new. But Senate leaders are now appalled by the idea, mostly likely because the Duke lobbyists don’t like it.
At this point the fate of the long-awaited coal ash bill reminds uncertain. House leaders want to consider it in an August 14th session while the folks running the Senate would rather wait until the scheduled November 17th session to take it up.
Reportedly, the conferees have been talking in recent days and cooler heads may prevail. The question is which plan they will come up with when all is said and done.
Both proposals are too weak, allow too many ponds to remain in place, and let Duke off the hook for the ongoing damage and contamination their coal ash pits are causing, but at least the last House plan would make the company empty more of the polluting ponds.
The worry of course, is that in the end legislative leaders will cave to the political power and campaign contributions of the company. It is an election year after all.
Here’s hoping the “rogues” prevail and there’s less coal ash seeping into our water.