Duke Energy files second motion to dismiss Carrboro climate suit

Duke Energy has filed a second motion to dismiss the lawsuit Carrboro filed against Duke in a dispute involving climate change. The town seeks money damages for the alleged negative impact of Duke Energy’s climate policies on town finances.

Duke filed an initial motion in March asking a North Carolina Business Court judge to dismiss Carrboro’s suit. That motion questioned whether the court had subject matter jurisdiction to hear Carrboro’s claims.

In a new motion Friday, Duke Energy argues that Carrboro has failed “to state a claim upon which relief can be granted.” The two motions rely on different subsections of North Carolina’s Rules of Civil Procedure.

The town wants to hold Duke Energy “liable for the alleged past, and theoretical future, effects of global climate change on Carrboro,” Duke’s lawyers wrote in a brief supporting the motion. “Although Carrboro suggests that the ‘tortious conduct’ at issue is an alleged ‘knowing deception campaign concerning the causes and dangers posed by the climate crisis’ ‘to deceive the public and decision-makers’ that delayed a transition to other fuels, Carrboro’s Complaint remains dependent on out-of-state and global greenhouse gas emissions and interstate pollution.”

“And Carrboro now admits that it seeks to second guess and challenge every power generation decision that was made pursuant to state law and multiple state utilities commissions,” according to the brief. “This it cannot do.”

“Carrboro’s sweeping claims stretch North Carolina tort law well beyond its permissible scope, and the Complaint must be dismissed in its entirety under North Carolina Rule 12(b)(6),” Duke Energy’s lawyers argued.

The town responded on May 1 to Duke Energy’s original motion to dismiss the case.

The utility is asking the court to “dismiss claims that were never asserted” in the town’s lawsuit, Carrboro’s lawyers wrote. “Attempting to recast the allegations of the Complaint into a lawsuit that Carrboro has not actually pled, Duke urges the Court to dismiss this action as nonjusticiable. But the Court could conclude that this case is nonjusticiable only by ignoring Carrboro’s actual Complaint and instead relying on Duke’s inaccurate characterizations of the case Carrboro actually filed.”

“Far from nonjusticiable, this Court is well versed with the adjudication of common law tort actions involving deceptive conduct and the damages arising therefrom,” Carrboro’s court filing continued. “Indeed, this case involves garden-variety common law claims arising out of Duke’s widespread deception campaigns about its fossil-fuel products and climate change.”

“Here, Carrboro seeks monetary damages (and only monetary damages) for the concrete economic losses flowing from Duke’s deception campaigns,” Carrboro’s lawyers argued.

“Contrary to Duke’s assertions otherwise, resolution of this action does not require that the Court regulate, or even address, Duke’s emissions. Carrboro does not seek an injunction to reduce Duke’s emissions or fossil-fuel sales. In short, Carrboro’s Complaint is not regulatory in nature — to the contrary, it is premised upon well-established tort principles commonly adjudicated by this Court,” the court filing added.

“Fundamentally, Duke’s Motion should be denied because there is no legislative or regulatory body that has authorized deceptions or insulated a tortfeasor, such as Duke, from liability for its deceptive business practices,” Carrboro’s lawyers argued.

Duke Energy’s March 17 court filings urged the Business Court to reject Carrboro’s complaint based on a lack of subject matter jurisdiction.

“The Town of Carrboro (‘Carrboro’) acknowledges in its Complaint, as it must, that climate change is caused by worldwide conduct, including ‘human-made emissions,’ and other sources going back over 100 years,” Duke Energy’s lawyers wrote in a brief  supporting a motion to dismiss the town’s case. “Yet Carrboro seeks to use North Carolina common tort law to hold Defendant Duke Energy Corporation (‘Duke Energy’), alone, liable for the alleged past and future effects of global climate change on Carrboro.”

“In so doing, Carrboro exceeds its authority as a municipality by seeking both to relitigate the General Assembly’s and the State Utilities Commission’s energy policy decisions in North Carolina, as well as policy decisions made in several other states, and to penalize Duke Energy for the lawful implementation of these regulators’ orders in providing power to customers in the State and across the country,” the court filing continued. “The federal government has not delegated this authority to Carrboro. The North Carolina General Assembly has not delegated this authority to Carrboro or any of the other 500-plus municipalities in the State.”

“And while Carrboro claims that the ‘tortious conduct’ at issue is an alleged ‘knowing deception campaign concerning the causes and dangers posed by the climate crisis’ ‘to deceive the public and decision-makers,’ in actuality this suit centers around the effects of global greenhouse gas emissions — from billions of consumers,” Duke Energy lawyers wrote. “The Complaint itself reveals that the only alleged connection between Duke Energy’s purported misconduct (alleged deceptive statements) and Carrboro’s alleged injuries, is increased greenhouse gas emissions by ‘the public’ resulting in accelerated climate change.”

“Climate change is a global phenomenon, and implicates worldwide conduct, including ‘human-made emissions,’ and other sources going back over 100 years,” according to the brief. “Carrboro cannot trace its alleged harms back through a web of innumerable individual and government choices about how and what types of fuels to use to purported conduct by Duke Energy.”

“Nor can Carrboro use the courts to second guess the energy and climate policy choices made by the appropriate bodies,” Duke Energy’s lawyers added. “The General Assembly in North Carolina is vested with the authority to, and does, evaluate and determine how to balance potential climate effects against energy security and affordability.”

“For example, North Carolina has made commitments to significantly reduce statewide greenhouse gas emissions, … while continuing to direct Duke Energy to procure new fossil fuel resources in order to meet growing electricity demand,” the court document continued.

“And, in other states, the federal government and appropriate government bodies make the same judgment calls to strike the appropriate balance. All these choices, which include decisions by government entities and regulators to direct and approve investments in fossil fuel resources to meet energy demand, have been made within the last two decades, during which Carrboro alleges that the knowledge of the connection between fossil fuels and anthropogenic climate change has been open and obvious,” Duke Energy’s lawyers wrote.

“All agree that addressing climate change is important,” the court filing continued. “Duke Energy supports addressing climate change, but it must be done in a manner that accounts for many complexities and balances factors reserved for policymaking, not litigation. Carrboro is, respectfully, outside its lane, and this Court must dismiss the Complaint in its entirety for lack of subject matter jurisdiction.”

Carrboro filed suit in December. The town is working with the left-of-center activist group NC WARN, which is funding the litigation.

Duke Energy filed paperwork in January to move the case from Orange County Superior Court to the North Carolina Business Court.

The post Duke Energy files second motion to dismiss Carrboro climate suit first appeared on Carolina Journal.