A release from the Senate leader’s office, on Monday, called into question Gov. Roy Cooper’s statements about the $57.8 million fund provided to the state by energy companies developing the Atlantic Coast Pipeline (ACP). Legislators are still awaiting answers to questions about the fund that Cooper’s Administration has vowed not to answer.
The nearly $58 million “slush fund” was set to be given to the state under Cooper’s control by Duke Energy and Dominion Power, contingent on the ACP moving forward, though Cooper has said that wasn’t the case.
In the release from Sen. Phil Berger’s (R-Rockingham) office six claims are looked at from a Feb. 14 press conference held by Cooper to see how the claims measure up to what is known about the fund.
The release says that the claims during Cooper’s press conference, paired with the approval of a major water permit for the project coming on the same day the fund was announced, just doesn’t pass the smell test.
During the press conference Cooper said that the fund was not a binding agreement, when in fact there is a pen and paper agreement between the companies construction the ACP and Cooper, in his official capacity as governor, that lays out what each side will be expected to provide or what conditions must be met for the funds to remain available.
Berger, is his release, questioned why if it truly was a voluntary contribution would there need to be an agreement and lawyers involved in the process.
During the press conference Cooper also chided lawmakers for a bipartisan bill that redirected the money from the fund to the public school systems in the path of the pipeline.
During the press conference Cooper said that lawmakers “raided the money that was supposed to improve the economy and bring jobs” to the area around the pipeline.
Berger said that Cooper’s own words refute that claim as he has, in the past, said that the key to improving our state’s economy and jobs is through improved education quoting Cooper as saying “We’ve got to keep a focus on public education in North Carolina… that’s the key to the skilled workforce that businesses want.”
This claim brings into another question, as in his release announcing the fund, Cooper said the fund would go for environmental mitigation projects, though state and federal law already require that proposed projects of this nature already meet all environmental mitigation requirements.
Cooper has since said that the money for the fund would go to “economic development,” saying that the fund was for jobs.
In the release Berger said, “Funny how all the governor could talk about for days was environmental mitigation in an effort to appease his base. Even his agreement with the ACP was called the ‘Mitigation Project Memorandum of Understanding.’ But then, as soon as lawmakers reminded him that state and federal law already require utilities building the Atlantic Coast Pipeline to meet environmental mitigation requirements before the project can receive approval, he quickly changed his tune. Yet he repeatedly refused to answer the direct question on why he apparently
doesn’t believe investing $58 million in our children’s public education in the eight rural Eastern North Carolina counties impacted by the pipeline will help economic development and job creation in that region.”
Cooper did not refer to the environmental mitigation aspect of the agreement during the press conference, though it was the focus of his release on the day the fund and water permit approval were announced.
Also called into question is the agreement to build a solar farm on land owned by the Cooper family near the future pipeline, which may have been the beneficiary of the fund.
Also the farm was not listed on Cooper’s Statement of Economic Interest.
The release also identified a conflict in Cooper’s statement where he said that independent experts were going to decide where the money went, identifying the Clean Water Management Trust Fund and Rural Infrastructure Authority as possible stewards of the funds, though he is currently in litigation to pull both of those entities under his direct control.
The release also refuted Cooper’s claim that the fund was independent of the permitting process, when under the text of the agreement it says that the payout of the nearly $58 million is contingent on the pipeline coming into service and if the project “fails to obtain and maintain the state approvals or any other necessary permits, certifications, consents, authorizations, and any other approvals… the Governor of the State of North Carolina shall deliver the proportionate share of the mitigation funds as preserved in accordance with this paragraph to Atlantic within thirty (30) days of the receipt of written notice of termination from Atlantic.”
Under the agreement Cooper expected to issue an executive order entailing how the funds would be allocated, which would be issued prior to completion of the state permitting process for the pipeline.
Cooper’s press conference and subsequent letter seem to, instead of putting any questions to bed, given rise to new ones.
Below are the questions state legislators were seeking to have answered from the Cooper administration regarding the fund.
1. Did Gov. Cooper personally bless the arrangement creating the $58 million fund?
2. Were the negotiated offers made in writing or in person? Are there other drafts you can share? Were other matters beyond the pipeline addressed during negotiations? If so, what matters?
Is the governor aware that state and federal law already require utilities building the Atlantic Coast Pipeline to meet environmental mitigation requirements before the project can receive approval? Is he aware of recent reports from WBTV indicating the pipeline companies made additional payments totaling $11 million for mitigation purposes?
3. Why does the governor’s office call this a “voluntary contribution” when Democratic Rep. Pricey Harrison said it was “a condition of getting the permit granted” and the governor’s own spokesman has called the arrangement “negotiations,” which by definition are not voluntary? Did anyone in the executive branch or governor’s office, or with direct ties to the governor directly or indirectly ask Rep. Pricey Harrison to retract her statement that the fund was “a condition of getting the permit granted?”
4. Would the private parties involved in the negotiations agree with the governor’s assertion that this was a “voluntary contribution” completely unrelated to the permitting process?
5. Does the governor’s office think this type of activity – requesting large contributions from private businesses wanting to do business in our state – encourages economic development in North Carolina?
6. Do you think the solicitation and acceptance of this money by the governor erodes the public’s trust in the permit approval process?
7. Why does the governor’s office compare this agreement to actions taken in Virginia when the Virginia agreement was signed by the Commonwealth’s chief environmental regulator and went to specifically designated mitigation projects, while Gov. Cooper’s deal gives him unfettered control of an extra-governmental fund outside of the normal appropriations process allowed by the North Carolina constitution?
8. Is this arrangement an illegal and unconstitutional violation of the separation of powers or a violation of due process?
9. Does this arrangement run afoul of state ethics law that prohibits elected officials from using their office and title to solicit funds for personal benefit?
10. You stated that discussions about the fund “began in 2017.” When in 2017? And when, specifically, did the actual negotiations take place? Did Gov. Cooper personally participate in and/or sign off on the negotiations?
11. Your statement, “never was the Governor contemplated to be the decision maker as to which projects were funded,” directly contradicts the last whereas clause of the MOU, which states “the Governor, through his agents and assigns… has the authority
to direct the disbursement of funds contemplated in the MOU.” Please explain this inconsistency.
12. You stated the governor’s deal with the Atlantic Coast Pipeline’s builders may now be in peril. Have you heard this from the pipeline builders, or are you implying the governor will no longer accept the funds if they are used to help poor, rural Eastern North Carolina schools?
13. Why doesn’t the governor believe investing $58 million in our children’s public education in the eight poor, rural Eastern North Carolina counties impacted by the pipeline will help economic development and job creation in that region?
14. You mentioned “the Rural Infrastructure Authority and the Clean Water Management Trust Fund are examples of two grantmakers operating under these guidelines that could fulfill the administrative process and accomplish the goals.” Aren’t these entities the subject of a lawsuit filed by Gov. Cooper claiming they are unconstitutionally constituted because he lacks sufficient
dominance of the board appointments to exercise real control over the boards’ actions? Why would he support these funds being administered by two entities he is challenging in court? And why does he claim these boards are independent at the same time he is seeking complete control of them from the Democratic-controlled Supreme Court?
15. Your response, “as to whether shareholders or ratepayers would cover the cost of the fund, that is a decision for the utilities developing the pipeline,” contradicts the News & Observer report that “Duke and other utilities will seek to recover the full cost of the pipeline – which includes construction, permitting and environmental compliance – from their customers through their utility bills.” Why did Gov. Cooper fail to negotiate a requirement that these payments come out of corporate profits, rather than from rate-paying customers?