The Town of Carrboro presented its legal rationale for continuing a 2024 lawsuit against Duke Energy on Thursday, laying out its standing for suing over damage suffered to the town’s infrastructure caused by climate change, about which Carrboro contends the utility company deceived the public.
Deliberations over whether to approve Duke Energy’s motion to dismiss the case took place across five hours in the Wake County Courthouse, with the town and energy corporation’s representation running the legal qualifications and validity of their arguments by Judge Mark A. Davis of North Carolina’s Business Court.
The civil lawsuit, which was filed last December, focuses on Duke Energy’s efforts to promote fossil fuel energy options while downplaying the impact on climate change and convincing the public fossil fuels were safer than alternative energy options. Attorney Matt Quinn, who is representing the local government, said such efforts — ranging from funding anti-renewable propaganda to deliberately transitioning from fossil fuels at a slow rate — caused “material changes” in people’s preference of fossil fuels for energy and personal use. The town is seeking financial damages for property damage suffered in extreme weather, which it claims has gotten worse and more frequent as a result of climate change.
The case is one of the first of its kind, where a public entity like a government seeks to use common tort law to receive damages from an energy company or utility — and, concurrently, hold a large-scale polluter publicly accountable for their contributions to global warming through carbon emissions. As such, Thursday’s hearing featured Judge Davis asking detailed questions to understand both parties’ arguments through the lens of legal standing, whether the case could be pre-empted by federal laws and if it should be dismissed over a political nature.
While pressed by both Davis and Duke Energy’s representatives about whether the case was about the company’s emissions or regulations, Quinn conceded it is a chief factor into why the local government believes climate change has worsened. But the town’s representation maintained the stance of focusing on Duke Energy’s deception of the public when it came to knowing the environmental cost of increasing fossil fuel use. Quinn compared it to the 1999 litigation between the federal government against tobacco companies, where the cigarette manufacturers deceived the public regarding nicotine addiction and adverse health effects of smoking — saying because of Duke’s efforts to argue fossil fuels were safe while downplaying renewable energy options, people are now paying the price with physical threats from extreme weather. If the case proceeds, Quinn said, the plaintiffs aim to have climate attribution experts testify about Duke Energy’s specific impacts on climate change and the differences if more committed changes to renewable energy were made.
When asked by Davis whether Carrboro is arguing that Duke Energy should presently be using 100% renewable methods, Quinn was quick to state the goal of the lawsuit is not to directly regulate the energy giant and step on the toes of state or federal law.
“In our complaint, we considered the question Your Honor is asking,” Quinn said. “And what we’ve alleged is: we’d be materially further along [in using renewable energy options] and the climate crisis would be much less acute if Duke had not engaged in this deception. That’s going to be a topic in discovery if, in your mind, that should happen.”
While Duke Energy has made some efforts to expand renewable energy, the Town of Carrboro alleges those efforts are not being invested into enough and fossil fuel methods were prioritized by the utility company even with the knowledge of creating global warming. (Photo via Duke Energy.)
During the hearing, Duke Energy’s argument of pseudo-regulation was one of its interpretations for why the case should be dismissed. Attorney Sterling Marchand contended Carrboro’s representation kept shifting its scope of people deceived by the business — from customers, to the country, to the world — and argued how Carrboro could single out the utility company when specific carbon emissions cannot be traced like other pollutants. The representation also questioned how the level of public perception around fossil fuels could be quantified based on Duke’s messaging and credited the North Carolina Utilities Commission, a state-run body that takes feedback from the public, for directing energy policy.
“They have a ton of allegations about emissions, they have a bunch of deceptions – many of which are not even attributable to Duke – and then they talk about global climate change,” said attorney Hunter Bruton during Duke Energy’s initial rebuttal. “Today, despite talking about regulators in the complaint, they concede no regulator’s decision would have been different but for Duke’s deceptions. That means that, as a utility, Duke Energy would’ve provided the exact same energy mix, would’ve contributed the exact same emissions, despite the fact that there’s an alleged deception. Therefore: [the resulting] climate change would have been the exact same as it was because, in North Carolina [as] a single utility provider, Duke Energy listens to the Utilities Commission.”
Davis wrapped up the courtroom session by having the parties add a supplemental briefing to the calendar in four weeks, after which he will share his ruling on whether to grant Duke Energy’s motion to dismiss or let the lawsuit proceed.
Carrboro Mayor Barbara Foushee (at podium) and other Carrboro Town Council members and climate advocates announce the town government’s lawsuit against Duke Energy on Dec. 4, 2024. (Photo via the Town of Carrboro.)
Throughout the hearing, several Town of Carrboro leaders visited the courtroom — including Mayor Barbara Foushee, Mayor Pro Tem Danny Nowell, Council Members Randee Haven-O’Donnell and Cristobal Palmer, and Town Manager Patrice Toney. After the proceedings, Nowell said he was not surprised by the angles of Duke Energy’s response to Carrboro’s approach. He added, though, that he believes the town has “clear” ground to stand on for taking this action on behalf of Carrboro residents.
“We know Duke [Energy] knew about the climate crisis earlier than they indicated, they knew about their contribution to the climate crisis earlier than they indicated, and they pivoted to a greenwashing campaign that obscured their knowledge of their emissions role in the climate crisis,” Nowell said. “Obviously, [climate change] is a global issue and obviously there’s a certain sense of systemic, complicated causality. But in this instance, we’re talking about Duke Energy — which is one of the largest corporate polluters in the world — intentionally deceiving the public and profiting off of a climate crisis earlier than most of the rest of us did.
“It feels gratifying,” he added about seeing the lawsuit through to this point. “We want to see our case go through the process, we wanted to have our moment — and the other moments we expect to have — in court. I think we took a fairly bold step because we are resolved on our commitment to the values that we expressed in this case and I think we’re equally resolved now. And it’s hard to imagine that our resolution will flag any time soon.”
Duke Energy released a statement through a spokesperson after the hearing on Thursday, saying: “We are committed to our customers and communities and will continue working with policymaker, regulators and other state leaders to deliver reliable and increasingly clean energy while keeping rates as low as possible.”
Featured photo via the Town of Carrboro.
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