US judge delays criminal sentencing of Duke Energy

A federal judge took the opportunity to share what he described as a “light moment” on Tuesday after agreeing to delay by one month the criminal sentencing of Duke Energy related to coal-ash pollution.

U.S. District Court Judge Malcolm J. Howard had read sealed documents provided by Duke Energy, in which attorneys laid out concerns that could arise out of an expected plea agreement related to nine criminal charges stemming from illegal coal ash discharges.

Once convicted of a crime under the Clean Water Act, the utility would be disqualified from entering into new or modified contracts with the federal government. The expected probation period is five years.

That could mean trouble, Duke officials say, for military bases in Duke Energy territory — Fort Bragg and Camp Lejeune, were mentioned in court — as well as federal courthouses, post offices and large office complexes scattered through Research Triangle Park and elsewhere.

Duke officials had asked for the delay of a sentencing hearing that had been set for later this week in Greenville so they could try to work out a waiver with the U.S. Environmental Protection Agency.

Howard, the federal judge who presided over the 20-minute hearing, asked about the possibility of the lights going out in Fort Bragg, whose contract with Duke Energy expires in September.

Banumathi Rangarajan, the assistant U.S. attorney whose investigation into Duke led to nine misdemeanor charges against the utility for polluting four of the state’s rivers with coal ash, told Howard she did not expect the worst.

“No power will be shut off, your honor,” she said.

Howard granted the delay, not for the reasons requested by Duke, which were filed under seal with the federal court. Instead, the judge said figuring out the logistics for keeping a company on probation for five years had been a difficult task that needed more thought.

The sentencing was rescheduled for May 14 in Greenville. Then the judge brought out lyrics for a song that he had been reminded of while reading documents in preparation for the Tuesday hearing.

One of his aides had taken a minute “to consult Mr. Google,” then produced the lyrics for “The Nights the Lights Went Out In Georgia,” a so-called “Southern Gothic” song written in 1972 by songwriter Bobby Russell and sung by Vicki Lawrence.

The judge singled out one line and recited it.

“Don’t trust your soul to no backwoods Southern lawyer;

“Cause the judge in the town’s got bloodstains on his hand,” Howard said, with a touch of song in his voice.

Then with a smile, he looked down from the bench at the attorneys in his courtroom and added: “I don’t think that applies to any of my Southern lawyers’ friends.”

Then he pointed them to the copies of the song he had printed for them and recessed the hearing for a month.

This story was originally published April 14, 2015 at 1:58 PM with the headline "US judge delays criminal sentencing of Duke Energy."