The Senate passed a massive fracking bill Thursday which would lift North Carolina's fracking moratorium and allow drilling to begin as early as July, 2015. S786, or the Energy Modernization Act, could be heard in the House next week. One of the most egregious provisions in the bill which made disclosing fracking trade secrets a Class 1 felony was reduced, in an amendment by Sen. Chad Barefoot, R- Wake, to being punishable as a Class 1 misdemeanor, the difference between months and days of community punishment. Senate Democrats had proposed no punishment for disclosure of trade secrets yesterday but were voted down, though they did manage to get in a provision that would require more frequent water testing. An amendment from Sen. Josh Stein, D-Wake that would measure air pollution from fracking, was shut down today as well.
Under the federal Clean Water Act, citizens can sue a polluter to enforce environmental law. Yet, before they do so, they must give 60 days' notice to the polluter to ostensibly give that polluter the opportunity clean up its act, explained Torrey. However, a state agency can file its own lawsuit, and if it does so on the exact same claims raised in the 60 day notice letter, then those groups cannot file own suit in federal court. "Each time we sent 60 day notice letters, on approximately the 59th day, the DENR would file its own enforcement action," said Torrey, explaining this effectively blocked the environmental suits. Emails between Duke Energy and state regulators — obtained through a public records request by the SELC — show that, behind the scenes, the DENR engaged in closed-door negotiations with Duke Energy and communicated with them before intervening in the legal actions of environmental groups. For example, when the DENR filed a suit to block the SELC suit over the Asheville site, an email from the DENR dated March 22 states, "All is well" and indicates that Duke's lawyer was present at DENR's office. Less than a week after they received a 60 day notice from SELC regarding the Riverbend plant, DENR began negotiating with Duke Energy on a settlement, an April 1 email shows.