The small town of Carrboro, North Carolina is suing one of the country's largest electric utilities, Duke Energy, over climate change.
While states and cities have filed lawsuits against big oil companies, suing utilities is less common. The arguments are similar though. Carrboro alleges Duke knew about climate change for over 50 years but continued to operate coal and gas power plants that spewed greenhouse gases. The lawsuit also says Duke participated in campaigns to confuse the public about whether climate change was real to avoid stricter regulations.
Duke Energy is the third largest source of carbon dioxide in the country, according to an analysis from the University of Massachusetts Amherst. That puts it well ahead of ExxonMobil and Koch Industries. The utility has six coal-fired power plants in North Carolina.
"We need to protect our community from future harms and this is why we find ourselves here as a plaintiff in this lawsuit," Carrboro Mayor Barbara Foushee says.
Duke Energy says it is reviewing the lawsuit.
In a complaint filed in a North Carolina state court, Carrboro is asking a jury to award the town money for current and future losses because of climate change.
"Our community floods fairly regularly as a result of the supercharged storms that are dumping large amounts of precipitation in short periods of time," Foushee says. Hotter temperatures also create more road maintenance, and electric bills are higher in city buildings because they use more air conditioning, the complaint says.
The lawsuit does not request a specific dollar amount, but Foushee says Carrboro has started tallying climate-related costs. "We know that the town could incur up to $60 million in damages in the coming years," she says.
The complaint alleges that Duke Energy learned about the effects of climate change at a utility trade group meeting in 1968, 56 years ago.
"At that meeting there was discussion about carbon dioxide emissions and how they were harming the planet and the need to potentially take action," says Howard Crystal, an attorney with the Center for Biological Diversity, who consulted on the case.
Instead of reducing its climate-warming greenhouse gas emissions, Duke worked with others to cast doubt over whether climate change was real, the town claims.
The lawsuit points to newspaper advertisements from an industry-funded group called "Information Council for the Environment." One full-page ad that ran in a Bowling Green, Kentucky newspaper in 1991 asked "How much are you willing to pay to solve a problem that may not exist?" It showed a sweating man carrying a large bag of money and then highlighted information that cast doubt over the climate getting warmer. Crystal says that created confusion for the public and forestalled action.
"If we'd actually invested early and substantially in the transition away from fossil fuels, we wouldn't be dealing with the incredible costs we're bearing constantly to address the climate disasters that are hitting us over and over again," Crystal says.
These days Duke Energy says it is "executing an ambitious clean energy transition" and has a goal of "net-zero carbon emissions from electricity generation by 2050." That goal is in line with the landmark 2015 Paris climate agreement. Duke Energy serves 8.4 million customers in North Carolina, South Carolina, Florida, Kentucky, Indiana and Ohio. The company generates most of its electricity by burning fossil fuels, which is the main driver of planetary warming.
Attorneys filing this case for Carrboro say it is ground-breaking because it focuses on deception by a corporation and it targets utilities instead of oil companies. Still, experts who monitor climate litigation say they're not surprised to see it.
"We've known for a few years now that the utilities had a similar level of internal knowledge about the dangers of climate change and the connection of their activities to increasing levels of greenhouse gases in the atmosphere," says Doug Kysar, a law professor at Yale University.
Another reason Kysar says he's unsurprised: states and cities are looking for ways to pay for the extra costs of climate change.
Earlier federal cases were not successful in the courts, because they focused on emissions from coal-fired electric power plants. Kysar says courts determined that "interfered with the Environmental Protection Agency's authority," and some judges thought the issue would be "better addressed by the other branches of government."
"And so the more recent wave of lawsuits are really centering the deceptive and manipulative conduct of the defendants, because that's a better fit with areas of traditional state law," Kysar says.
Still, Kysar thinks bringing lawsuits against utilities before a jury could be more difficult than those against oil companies, because the two have different reputations. He says oil companies often are viewed by the public as "very powerful, very wealthy and increasingly somewhat manipulative and untrustworthy actors."
Utilities like Duke Energy "are heavily regulated by public utility commissions" and don't have quite as negative a reputation.
"We all have a bill that we pay to those electric providers every month and many of them are cooperatives," Kysar says. But if cases like this one start to succeed, he says that could change people's views of utilities.
Correcting public perception is part of Carrboro's goal. Mayor Foushee says beyond a monetary settlement, it's important to get acknowledgement that Duke Energy's climate pollution is harming her town.
"Somebody has to speak truth to power about this issue with Duke Energy Corporation and so it is us," Foushee says.
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