NORTH CAROLINA — A judge with enduring influence over environmental policy was nominated to the agency responsible for setting Duke Energy’s rates. His controversial history ranges from handling Duke’s coal ash pollution a decade ago to striking down 1,4-dioxane regulation last year — and his spouse is chair of a lobby group funded by Duke.
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State Treasurer Brad Briner announced his nomination of Chief Administrative Law Judge Donald van der Vaart to the Utilities Commission Wednesday. The Utilities Commission is responsible for regulating rates and services of investor-owned public utilities, such as Duke Energy, as well as natural gas, electricity, water, and telephone service providers.
The agency oversees pipeline safety, reliability, and North Carolina’s transition to renewable energy under Duke’s Carbon Plan. Several environmentalist groups criticized Van der Vaart’s nomination, noting he has long favored increased fossil fuel production — including offshore drilling — and rollbacks to environmental regulation. In a 2016 letter to President Donald Trump, van der Vaart advocated transferring EPA’s authority to states, requested a moratorium on the Clean Power Plan and broadened wetland protections under the Clean Water Act.
“Putting somebody like Van der Vaart to oversee the state’s energy future is dangerously irresponsible and ideologically driven,” NC League of Conservation Voters director of government relations Dan Crawford said. “It clearly shows the treasurer values fossil fuel and corporate polluter interest over public health, consumer protection, and climate resilience. It’s a bad move for North Carolina and one that people need to know about.”
Van der Vaart has held numerous environmental policy leadership roles over the past two decades, including Secretary of the Department of Environmental Quality, Environmental Management Commissioner, and EPA Scientific Advisor.
Briner told Port City Daily his nominee’s technical training in law and engineering set him apart from other candidates.
Van der Vaart currently serves as director of the Office of Administrative Hearings and Chief Administrative Law Judge. He would be required to step down from the position if lawmakers vote to approve his appointment to the Utilities Commission.
PCD reached out to local lawmakers to ask if they would vote in favor of Van der Vaart’s appointment but only received a response from Rep. Deb Butler by press.
“Donald van der Vaart has a knack for doing whatever it takes to politicize every position he’s been given,” Butler said. “We desperately need impartial civil servants now more than ever who will put the citizens of North Carolina first. Mr. Van der Vaart is not that guy.”
Briner noted Van der Vaart’s appointment is also complicated by Gov. Josh Stein’s injunction filed last week challenging the treasurer’s appointment authority. The governor previously appointed the majority of the Utilities Commission, including its chair, before the passage of S.B. 382 in December. The law shifted the Utilities Commission from a six-member body to five, with two governor appointments, two General Assembly appointments, and an appointment by the state treasurer.
Chief Supreme Court Justice Paul Newby appointed Van der Vaart as chief administrative law judge in 2021. Former administrative judges and environmentalists raised concerns van der Vaart’s appointment to the Office of Administrative Hearing could jeopardize the agency’s impartiality, citing his controversial history as DEQ secretary from 2015 to 2016.
Van der Vaart described his DEQ leadership as a “change of the guard” during a 2015 NC Chamber of Commerce event.
“It was an agency a whole lot more interested in regulating than in working out things with folks,” NC Chamber of Commerce CEO Gary Salamido told Raleigh News & Observer in 2015. “He was always the exception to that rule.”
Clean Cape Fear co-founder Emily Donovan noted DEQ received data about GenX contamination in the lower Cape Fear in 2016. Van der Vaart did not act on the report and did not appear to include it in transition documents to his successor, according to NC Newsline.
“That was a year before StarNews broke the story,” Donovan said. “Our state leaders did nothing. They ignored it. [Van der Vaart] has a very long track record with a lot of different polluters, shielding and protecting them at the expense of our health and well being.”
The EPA sent a letter to Van der Vaart in 2015 threatening to take over North Carolina’s water and air pollution permitting program for blocking citizens from challenging industrial permits. This included Cape Fear River Watch, the NC Coastal Federation, and PenderWatch & Conservancy’s legal challenge against DEQ’s air permit for Titan Cement in New Hanover County; the groups alleged the permit would allow massive toxic air pollution.
A decade later, the EPA again threatened to take over the state’s permitting authority due to Van der Vaart’s ruling as Chief Administrative Law Judge in Asheboro’s suit against 1,4-dioxane limits. In a January letter, EPA determined van der Vaart’s ruling incorrectly interpreted the Clean Water Act and threatened DEQ’s ability to regulate toxic chemicals. Asheboro released record levels of the toxic chemical in the months following the judge’s decision.
Duke connections
Van der Vaart’s spouse, Sandra, is chair of the NC Chamber of Commerce’s legal arm, the NC Chamber Legal Institute. Duke is a top donor to the lobby group, which also intervened to oppose EPA involvement in Van der Vaart’s 1,4-dioxane ruling.
“This appointment is a slap in the face to science, clean energy, progress, and every North Carolinian who is concerned about the environment,” Crawford said. “Putting him on the Utilities Commission is putting the fox in charge of the hen house — we’ve seen his continued conflict of interest.”
Last month, the NC Chamber Legal Institute and U.S. Chamber of Commerce filed an amicus brief on Duke’s side, requesting a Supreme Court review of an antitrust ruling against the investor-owned utility.
Florida-based NTE Energy filed a suit in 2019 alleging Duke monopolized the wholesale power market in North Carolina and unlawfully stifled competition against cheaper and cleaner providers. The 4th U.S. Circuit Court of Appeals ruled Duke would need to face the claims in a jury trial last August.
The appeals court determined evidence included “much from which a jury could conclude that Duke’s actions were illegitimate anticompetitive conduct.”
PCD reached out to Van der Vaart to ask about the nomination and conflict of interest but did not receive a response by press.
Duke is an investor-owned monopoly utility. The Utilities Commission uses the “rate of return” regulatory model — generally around 10% in guaranteed profit for capital invested in its projects — in approving Duke’s rate increase requests. Critics argue the rate-setting framework incentivizes Duke to prioritize investments in expensive infrastructure projects.
“Under rate-of-return regulation, there is an inherent tendency for investor-owned utilities (such as Duke) to increase the size of their investments in order to maximize profits,” Consultant Edwin Burgess wrote in a brief to the Utilities Commission last year on behalf of Stein. “All else being equal, the more capital intensive a capacity resource is, the more attractive it should be to shareholders.”
Stein, who served as attorney general before being elected governor, reached a 2021 settlement with Duke expected to save customers approximately $1.1 billion related to coal ash cleanup from earlier rate cases.
Six years earlier, Duke agreed to pay $102 million in federal fines and pleaded guilty to criminal violations of the federal Clean Water Act for widespread coal ash contamination in North Carolina in May 2015. Van der Vaart’s DEQ issued a separate $25 million fine against the company that year for groundwater pollution at the Sutton Plant in Wilmington.
“If it was up to me, it would have been about $50 million,” former DEQ assistant secretary Tom Reeder said in court filings. “They’ve nuked this whole drinking water source for the Wilmington area. Haven’t done anything about it. Haven’t owned up to it. So in my opinion, the penalty should have been a lot more severe than it was.”
A few months later, Duke executives met with Van der Vaart and former Gov. Pat McCrory for a private dinner at the governor’s mansion, while Duke’s appeal of the state penalty was still ongoing. Attendees did not disclose details about the private dinner’s subject matter.
Van der Vaart agreed to a settlement with Duke in September 2015, dropping the fine to $7 million to resolve all groundwater contamination claims.
“This is a total surrender and collapse by DEQ on enforcing the law as to groundwater and at the same time attempts to get around any citizen claims,” Southern Environmental Law Center attorney Frank Holleman told Indy Week. “This was all done in the dark of night, privately, without any sunshine whatsoever.”
SELC obtained a draft report in December 2015 showing DEQ staff experts recommended classifying most of Duke’s coal ash sites as “high risk,” requiring full excavation and clean up. Van der Vaart criticized environmental advocates for attempting to “corrupt the process” by publishing a draft with “incomplete data.” The former DEQ secretary helped revise a final, watered-down report weeks later, listing the majority of coal ash sites as “low” or “low-intermediate” risk.
Former state toxicologists Ken Rudo and Meagan Davies testified in 2015 that DEQ and DHHS leadership pressured them to rescind “do not drink” letters to well users with toxic coal ash contamination. According to Davies’ deposition, this came after Duke Energy executives requested a meeting with Van der Vaart and other administration officials in June 2015 to question toxin levels used in the advisory.
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