Justice Department subpoena’s DENR, but McCrory may walk away unscathed

Following the U.S. Justice Department’s announcement that a criminal investigation will be launched into the North Carolina Department of Environment and Natural Resources (DENR) after the release of over 82,000 gallons (more or less depending on your source) of coal ash into the Dan River, it remains to be seen how the federal investigation will affect North Carolina’s Gov. Pat McCrory, a former employee of Duke Energy for 28 years.

Although the specific aim of the Justice Department’s investigation cannot be disclosed, a letter attached to the subpoena that was sent to the DENR states, “An official criminal investigation of a suspected felony is being conducted by the United States and a federal grand jury.”

After the coal ash spill was discovered on February 2^nd, it was not until February 3^rd that the spill was disclosed to the public and even then, Duke Energy and the DENR “failed to disclose the massive scale of the problem – one that has been described as the third largest such coal ash spill in the nation.”

Given the DENR’s questionable reactions following the Duke Energy coal ash spill into the Dan River and North Carolina Gov. Pat McCrory’s reported close ties to his former employer, a complex picture has emerged that puts DENR’s regulatory relationship with Duke Energy in more of a ‘friendly’ role, a role that could be deemed by the U.S. Department of Justice as illegal.  

Assuming that the Department of Justice finds evidence that the DENR was criminally negligent in carrying out its regulatory function with Duke Energy, the root cause (Gov. Pat McCrory) could end up walking away from this incident with a few political bumps and bruises. That is, if Gov. Pat McCrory was responsible for the DENR’s ‘cozy’ relationship with Duke Energy, an expanded investigation by the Justice Department may be the only way to reveal the former’s legal transgressions.

Regulatory agencies like the DENR don’t act in a vacuum. Orders, directives, guidance, etc. come down from superiors (e.g., the governor) that shape the regulatory environment, be it business friendly, passive, or aggressive in its pursuit of regulatory transgressions.

Under Pat McCrory, a fairly clear picture has taken shape showing a DENR more concerned with protecting the interests of Duke Energy than with protecting the interests of the citizens of North Carolina.

And lost in this discussion are the residents of Southside Virginia and North Carolina who must deal with the consequences of Duke Energy’s mistakes. As usual, it’s these largely unheard voices that must bear the brunt of this latest environmental disaster.