When Gov. Pat McCrory sued legislative leaders last week to block their appointments to the new commission that will determine how Duke Energy cleans up its coal ash across the state, he hired a law firm with extensive connections to the company.
Robinson, Bradshaw & Hinson, headquartered in Charlotte like Duke Energy, is one of North Carolina’s most prominent law firms. It has represented the utility in lawsuits. It is counsel for the company’s $800 million in exempt facility bonds. Several of its top lawyers have held high-level positions at the utility.
Some environmentalists have raised concerns about the reach of the country’s largest utility company into state government. And Senate leader Phil Berger, a Republican from Eden, which was the site of the Dan River coal ash spill in February, has criticized McCrory for suing over the makeup of the coal ash commission the legislature created this summer.
“The governor’s primary concern appears to be a desire to control the coal ash commission and avoid an independent barrier between his administration and former employer,” Berger said earlier this fall. His office had no further comment this week.
Bob Stephens, the governor’s general counsel, issued a statement Wednesday in response to a request for comment: “This lawsuit is about protecting the North Carolina Constitution by stopping the creation of unaccountable commissions controlled by special interests who report to no one – especially the people of North Carolina,” Stephens said.
He defended the choice of the firm, saying it has extensive experience in high-profile litigation, including cases involving constitutional law.
With a company as big as Duke Energy, and a firm as large and connected as Robinson, Bradshaw in the same city, it’s hardly surprising that they overlap. Duke Energy has used attorneys from several of the biggest firms in the state over the years.
Michael Weisel, a politically connected Raleigh attorney who specializes in business law and governmental relations, says it is to be expected.
“As a major North Carolina law firm, it would be extremely unusual for Duke Energy not to have been a client at one time or another,” Weisel said. “In fact, if they had not been, it might raise questions.”
The Dan River spill was more than an environmental mess. It became a political problem for McCrory, who worked for nearly 30 years at Duke Energy, and inherited a simmering controversy when he took office in 2013. A coalition of clean-river advocacy groups, which in 2013 sued to enforce pollution regulations, contended the state hadn’t monitored the industry aggressively enough. After the spill, a federal criminal grand jury began looking into the relationship between Duke and the N.C. Department of Environment and Natural Resources.
The governor has stressed his independence from the utility company – through public statements and an executive order escalating cleanup plans – while refusing to sign the legislature’s coal ash regulatory bill because he said it encroached on executive branch authority. The bill became law without his signature. It requires the commission to determine how extensive cleanup has to be at each of the 32 coal ash ponds.
McCrory’s lawsuit seeks to unseat the six Coal Ash Management Commission members chosen by the legislature. The nine-member board held its first meeting, an orientation session, on Friday.
The lawsuit is also broader than that. Joined by former Govs. Jim Martin, a Republican, and Jim Hunt, a Democrat, McCrory’s legal challenge contends the legislature violated provisions of the state constitution, including separation of powers, when it created three commissions responsible for carrying out executive branch functions and gave itself the authority to appoint a majority of members. McCrory also cites two other such commissions that have been proposed but not yet passed by the General Assembly.
Test of three-judge panel
As a constitutional challenge, the lawsuit will be one of the first cases to go before a three-judge panel, appointed by the chief justice of the N.C. Supreme Court. That requirement was written into law this year, led by Republican legislators irked at judges’ rulings against laws they have passed.
Weisel, who also practices and teaches constitutional law, says how the three-judge panel tackles the legal issues is more significant than the parties involved. The judge panels haven’t been tested in court to determine whether they are constitutional themselves.
“The questions that lawsuit seeks to resolve are constitutional in nature, involving separation of executive and legislative function, going far beyond Duke Energy,” Weisel said. “Given the potential constitutional question of judicial and legislative separation concerning a three-judge panel, Duke Energy really takes a back seat to other important issues.”
The three attorneys from the firm assigned to McCrory’s lawsuit will be paid hourly rates. So far, they have been paid a total of about $58,000, according to the governor’s office.
Two of the partners handling the lawsuit represented Gov. Martin and his administration in a federal class-action case challenging state government employment practices.
Robinson, Bradshaw is the third-largest law firm in the Charlotte area, according to the Charlotte Business Journal, and has long ties to the state’s political and business worlds. Richard Vinroot, a former mayor of Charlotte and once a Republican candidate for governor, now works at the law firm. In July, McCrory named one of its partners, Louis Bledsoe, as a state business court judge.
Earlier this year, Robinson, Bradshaw contracted with the N.C. Commerce Department to set up a nonprofit economic development partnership, for $7,500.
In 2011, the law firm was accused in a bankruptcy case by a client who alleged its attorneys favored Duke Energy at its expense because of the firm’s past ties with Duke. The law firm said the accusation was false.
This wasn’t the first time that the state has turned to lawyers who have represented Duke Energy.
In March, the state’s environmental regulatory agency hired a former U.S. attorney with Alston & Bird in Charlotte. Mark Calloway represented Duke Energy in a federal grand jury investigation that ended in 2004. The company was cleared of criminal allegations that it under-reported profits; it agreed to reimburse customers to settle the case. Calloway was hired to help the state agency comply with extensive subpoenas for records in an ongoing federal investigation into possible crimes related to coal ash regulation.
Last week, The Associated Press reported that the environment and natural resources agency in June hired a Raleigh lawyer who had represented Duke Energy in a lawsuit brought by environmentalists over groundwater contamination regulations. Craig Bromby recently advised a state commission on the same issue. He left the Raleigh office of Hunton & Williams in March.