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Fact Check: Did pols force voters to pay for coal ash cleanup?

Posted October 24, 2014 5:30 a.m. EDT
Updated July 13, 2018 2:49 p.m. EDT

This is a still image from the LCV Victory Fund's "Pay for it" ad, which targets state House Speaker Thom Tillis, a Republican U.S. Senate candidate.

— Coal ash cleanup is a messy topic, both literally and in terms of policy, and it becomes all the more so when injected into political campaigns. 

Ash refers to material left over after coal is burned to generate power, and while it is largely inert, the coal ash does contain toxins and heavy metals that are harmful to fish and humans. A Feb. 2 spill from a shuttered Duke Energy plant on the Dan River raised awareness in North Carolina of the fact that the power company stores ash in unlined pits at 14 locations throughout the state, virtually all of them perched along rivers and streams. 

The spill also brought to the forefront a series of lawsuits by environmental groups that sought to force Duke to clean up its pits and raised questions about how the state did or did not facilitate those suits. It also led to calls for state legislation that would force the company to clean up the pits, and after long and contentious negotiations – and nearly walking away from the bill entirely – lawmakers passed Senate Bill 729

That coal ash bill is now at issue in more than one campaign ad.

A League of Conservation voters ad, for example, starts out by talking about "lots of scary ads" in the U.S. Senate campaign and then turns its attention to the coal ash spill and the remaining pits around the state. 

"Thom Tillis is willing to make us pay – to have us clean up their coal ash dumps," say people featured in the ad.

Tillis, a Republican and the state House speaker, is running against Incumbent Democratic U.S. Sen. Kay Hagan.  

A second ad from N.C. Families First also makes use of the coal ash spill. It targets state Sen. Chad Barefoot, R-Wake, who is running against Sarah Crawford, a Democrat. 

"Duke Energy's toxic coal ash is polluting our rivers, but they're not paying to clean it up. We are. That's because Chad Barefoot voted to let Duke Energy raise our electric bill to pay for their mess," says the ad in the state Senate campaign. 

THE QUESTION: The implication of both these ads is that power customers will be paying more on their electric bills as a result of legislative action. Is that the case? 

THE BACKUP: Both the League of Conservation Voters and N.C. Families First have issued backup materials that mainly cite news reports about the bill.

N.C. Families first cites, among others, a WRAL News story that notes that "those voting against the measure cited the cost issue as a major factor in their opposition. Rep. Pricey Harrison, D-Guilford, said power customers could see their rates rise $20 to $30 per month if they were asked to cover all the costs."

In addition to news reports, the League of Conservation Voters cites its own "Legislative Watch" newsletter, which said the bill "fails to assign financial responsibility for cleanup to Duke Energy and its stockholders, leaving the likelihood that ratepayers will end up paying billions to correct Duke's coal ash management errors."

The key phrases in both those reports and others cited by the backup materials are the hedges: "customers could see" and "the likelihood that ratepayers will end up paying billions." 

THE BILL: Senate Bill 729 as it passed addresses coal ash costs in two ways.

The bill creates a Coal Ash Management Commission and imposes a fee on utilities that have coal ash ponds to fund that commission's work. However, the bill specifically says that the utilities may not pass along the cost of that fee to consumers. 

Second, the bill imposes a moratorium until Jan. 15, 2015, on Duke seeking any sort of rate increase related to coal ash cleanup. 

The company has to ask for permission to raise its rates from the North Carolina Utilities Commission, a quasi-judicial body that oversees power companies, pipelines and the like. Commission members are appointed by the governor and confirmed by the General Assembly, and their process for approving or denying rate increases is left unaltered by the bill.

THE HISTORY: Since shortly after the Feb. 2 spill, Duke has said that shareholders and the company's insurers would pick up the cost of the spill into the Dan River, but executives have also said they may ask the Utilities Commission to raise rates for costs associated with cleanup of other ponds.

"The ad doesn’t assert as fact that the bill will make customers pay," Dan Crawford, a spokesman for the League of Conservation Voters, said of his group's spot.

Rather, he said, the ad says, "Tillis 'is willing' to have customers clean up the coal ash dumps. Duke Energy’s CEO has made clear that the company intends to pass cleanup costs on to customers, and SB 729 allows Duke to pursue that option once the moratorium expires in January."

As a point of clarity: Dan Crawford is married to Sarah Crawford, the candidate running against Barefoot. 

TUSSLE ON TIME WARNER CABLE: The N.C. Families First ad has become the focus of a common type of election-year complaint in which those targeted by commercials urge broadcasters to pull an attack ad because it is false.

On Thursday, the state Republican Senate Caucus claimed victory, saying it had gotten Time Warner Cable to pull N.C. Families First's anti-Barefoot spot.

"Time Warner Cable determined an ad sponsored by North Carolina Families First (NCFF), a liberal Super PAC dumping millions into state legislative races across North Carolina, falsely accuses Barefoot of allowing Duke Energy to charge ratepayers for cleanup of the Dan River coal ash spill," according to Ray Martin, the caucus director. 

Actually, the ad never claims that voters will be faced with cleaning up the spill, which would have been blatantly false. It does use images of the spill, however. 

Officials with Time Warner Cable were not able to immediately confirm that their company had, in fact, pulled the ad in question. A lawyer for N.C. Families First said that, to his knowledge, his group's ad was still in rotation on Time Warner Cable channels. 

In a letter to Richard Ambrose, Time Warner Cable Media's vice president for enterprise political media, N.C. Families First general counsel Michael Weisel argues there is no misrepresentation in the ad.

"Chad Barefoot and his colleagues in the State Senate wrote the coal ash bill so that Duke would be able to ask for a rate increase as quickly as January 15, 2015 – now less than 90 days away," Weisel wrote. 

He goes on to point out that Sen. Mike Woodard, D-Durham, attempted to amend the Senate version of the bill to require that Duke shareholders pay coal ash cleanup costs rather than ratepayers. That amendment fell victim to a parliamentary procedure known as a "substitute amendment," which killed the Woodard language without senators having to directly take a vote on the change.  

THE CALL: It's unclear at this point if or why Time Warner pulled the Barefoot ad, but it's irrelevant for the purposes of this fact check. We'll let the lawyers battle it out over what the meaning of "is" is. 

The question is not the conclusion that someone who applies a Talmudic reading of the ads' language might reach. Rather, the question is what voters who are adrift in a sea of negative ads might take away.

Yellow light

That said, these two ads merit two different rulings. Viewers should use caution as they approach the League of Conservation voters ad, which is a bit tricky because it references the coal ash spill immediately before talking about the clean up costs. The proximity of those two mentions could lead to confusion over who is paying for the spill versus who is paying for the ponds that haven't spilled. But the ad does go on to say there is the potential for voters to clean up "coal ash dumps," not the spill itself. 

Also, the ad hedges significantly when it says that Tillis "is willing" to let ratepayers to pick up the cleanup tab for the coal ash ponds. That's a step short of saying rate payers will, for certain, be shouldering that cost. Therefore it gets a yellow light on our fact-checking scale, and that light only just barely turned from green.

Red light!

The N.C. Families First ad goes further, and viewers should hit the brakes when they encounter it.

It says "Chad Barefoot voted to let Duke Energy raise our electric bill to pay for their mess." The bill Barefoot voted for imposed a temporary moratorium on Duke's ability to seek a rate increase related to cleanup costs. It did not alter the process through which power companies have been able to seek rate increases – the company still has to convince the state's Utilities Commission that a rate increase is warranted.

Yes, this means lawmakers didn't slam the door on a potential future rate hike, but neither did they explicitly clear the way for one or allow Duke to act without further state supervision. For the average viewer, this ad does more than merely raise the specter of a possible rate hike but says their power bills are definitely going up as a result of Barefoot's vote. That's not the case, and therefore this ad gets a red light on our fact-checking scale.