North Carolina Town Sues Duke Energy For Damages Caused By “Climate Deception”

Carrboro, North Carolina, is a town with about 21,000 residents located just west of Chapel Hill. It is nowhere near any oceans but claims it has suffered millions of dollars in damages to its 47 miles of roads and town buildings because of more frequent and extreme weather events related to an overheated environment. CleanTechnica readers would not be terribly surprised if that were true. Carrboro is seeking to recover damages for those past harms as well as future ones.

Rather than take its lumps like every other community affected by rain, hail, drought, or wildfires, Carrboro is trying something different. Last December, it sued Duke Energy, alleging the utility has funded and promoted a decades-long deception campaign to diminish the connection between fossil fuels and climate change.

Recently, it amended its lawsuit to add a claim for at least $20 million in damages to its buildings, equipment, and vehicles suffered when Tropical Depression Chantal swept over the town in July of this year, leaving more havoc in its wake. “When you’re dealing with something like the existential threat of climate change, that requires us to make bold moves,” Carrboro’s mayor, Barbara Foushee, told The Guardian.

Decades Of Deception

The idea to bring a lawsuit followed a report by the Energy and Policy Institute last November, which found some of the utility companies that comprise today’s Duke Energy Corporation — including Duke Power, Carolina Power & Light, and Public Service Indiana — were warned about the climate crisis decades ago.

“Although Duke has understood the dangers of climate change for decades, the company actively participated in a far reaching, decades long campaign of deception reinforced the public’s reliance on coal and natural gas. That reliance by the public led to higher greenhouse gas emissions that became the condition precedent to heat waves, heavier rain, more powerful storms, and flooding,” according to Inside Climate News.

Last week, lawyers for Carrboro and Duke Energy spent more than six hours arguing their positions to state court judge Mark A. Davis, who is considering a motion to dismiss the matter filed by attorneys for Duke Energy. The question Davis has to answer is whether the case should proceed to a trial before a jury.

Matthew Quinn, an attorney representing Carrboro, claimed the case is similar to tobacco litigation. “Our theory is that Duke’s massive deception got everybody hooked on fossil fuels, like Philip Morris” and cigarettes, he told the court. At trial, he said the town would present climate attribution scientists — experts who study the link between extreme weather events and climate change — to prove causality to a jury.

Not surprisingly, Duke Energy argued the complaint is baseless and should be dismissed. “There are other emissions sources. There is no way to trace a statement by Duke to a pothole in Carrboro,” its attorney, Hunter Bruton, told the judge. “These are novel claims.”

A Deliberate Campaign Of Lies

The alleged deception began in earnest in the 1990s, Carrboro says in its complaint.  That’s when several energy groups, funded in part by Duke Energy, knew fossil fuel emissions were warming the planet but launched a public relations campaign designed to mislead the public into believing that climate change was not real.

Duke was an influential member of the Global Climate Coalition, which falsely claimed in a 1994 edition of Climate Watch Bulletin that “new scientific evidence” showed fossil fuels might help maintain “an essential atmospheric balance” and that “cutbacks in fossil fuel use may actually enhance the greenhouse effect,” the complaint says.

It also alleged that Duke was an active participant in the Edison Electric Institute, a trade organization which knew as early as 1968 that fossil fuels were altering the planet’s atmosphere. In 1991, the Edison Electric Institute ran ads in magazines disputing climate change with messages like, “How much are you willing to pay to solve a problem that may not exist?” and, “If the earth is getting warmer, why is Kentucky getting colder?”

The Edison Electric Institute commissioned a study in 1984 that included two hypothetical news stories from the future — one in which fossil fuel emissions continued unabated and caused devastating impacts, and another in which emissions were reined in and a safer future was secured, the lawsuit says.

Despite these warnings, Duke continued to build out fossil fuel infrastructure, oppose legal limits to planet heating pollution, and support efforts to promote doubt about climate science, the complaint filed by Carrboro alleges.

Duke Energy & Climate Confusion

“They tried to sow confusion about climate change and the fact that there’s a threat that we face in the future,” Howard Crystal, legal director of the Energy Justice Program at the Center for Biological Diversity, told The Guardian. Crystal is an advisor to the town of Carrboro. “The deception continues to be a problem today, now in the form of ‘greenwashing’,” he said.

On social media, Duke has portrayed itself as a leader in bringing on “cleaner energy solutions” despite having one of the largest planned gas buildouts of any company in the US. “They’re still expanding fossil fuels and suppressing renewables — in flat defiance of scientists demanding that we do the exact opposite,” said Jim Warren, executive director of NC Warn. According to one study, Duke Energy in 2021 had the third-largest emissions footprint of any business in the United States.

In the day-long arguments to Judge Davis, attorneys for Duke pursued the useful kitchen sink defense — throw everything you can think of against the wall and hope some of it sticks. “The only way to get exacerbated climate change is to have exacerbated emissions,” they argued. “They have to prove the campaign caused someone to increase emissions.”

Creative Legal Theories

Carrboro’s legal team is breaking new ground in the climate litigation space. It is alleging that damage done to town property constitutes a public and private nuisance because the town no longer has the “use and enjoyment of its property.” The utility’s actions also amount to trespassing by Duke Energy because the floods, wind, heat waves, and storms from climate change “enter and damage” town property.

ICN reports that the lawyers for Duke Energy seemed exasperated by such claims. “We don’t control the weather or the rain or the heat, which they’re alleging is the trespass,” they said.

Matthew Quinn, the attorney representing the town, said Duke Energy must be held responsible for the consequence of their devious behavior, Quinn concluded. “Their position is there are no legal consequences and they can say anything about their business model and parties like Carrboro can’t pursue damages. There is legal redress,” Quinn argued. “Causation should not be misunderstood, and Carrboro’s extreme damages should not be minimized.”

The Proper Role Of Courts

Climate litigation is becoming fairly common these days, with several states and many cities having made legal claims similar to those by the town of Carrboro. The basic information about how the fossil fuel industry suppressed information about carbon emissions is well known.

The industry conspired, colluded, and schemed to hide the truth from the public and disparage climate scientists whenever possible. Almost everyone is now aware of the extent of the lying that has gone on for decades. But the question in a court of law is not whether industry executives are a bunch of despicable shitheels. That is no longer an issue. The question in this case and many others is whether the courts are the right place to have this debate.

Many judges are gun shy about these cases because they feel the questions presented are policy issues that should be addressed by the legislative and executive branches of government. During the hearing last week, Judge Davis asked pointedly whether the case was about monetary damages or actually a legal maneuver designed to get the court to do what the North Carolina legislature and governor should do.

Davis issued no ruling last week. Instead, he asked attorneys for both sides to submit legal memos that address the issue of “traceability,” that is whether the damages suffered by Carrboro can be linked to the deception campaign outlined by the town in its complaint.

That’s a smart move. He is fully aware that his decision will be appealed no matter what he decides. An appeals court will look to see whether the trial judge covered all the bases properly before rendering a decision.

It is one thing to say that Duke Energy has been run by a bunch of scumbags for decades. It is quite another to say their despicable actions were a proximate cause of Tropical Depression Chantal dumping Biblical amounts of rain on Carrboro earlier this year. We will update this story once Judge Davis issues his ruling.

Cover photo: By Clean Technica