In long-running fight over fracked gas power plant, utility urges state appeals court to penalize groups and leave regulators as judge, jury and executioner
Statement by NC WARN’s Jim Warren and Dr. Harvard Ayers of The Climate Times:
In a case with sweeping environmental and legal ramifications, attorneys for NC WARN and The Climate Times responded yesterday to Duke Energy’s request for financial sanctions against us for attempting to appeal the fast-track regulatory approval of a $1 billion fracked gas-burning power plant. As attorney Matt Quinn wrote to the NC Court of Appeals, any sanction would have the drastic effect of allowing the NC Utilities Commission to place itself above court review of its decisions “by issuing extravagant yet unchallengeable bond orders.”
In calling for the NC Court of Appeals to issue the financial penalty on November 1, Duke Energy claimed NC WARN and The Climate Times have “harassed” the giant utility by using “frivolous” legal actions as the case over the Asheville project has bounced between the commission and the appeals court since last spring. Duke did not specify the amount it would seek from the two nonprofits.
As stated in our motion, “This is an unprecedented case that combines a complex procedural background and legal issues of great importance to the public. The [Commission] set an unjustified $98 million bond as a condition of appealing” its approval of Duke’s plant. When the groups attempted to challenge the approval, our appeal was dismissed by the Commission itself.
Then, “When Petitioners attempted to challenge the bond amount itself, the Commission circuitously used the erroneous bond as a basis to dismiss any challenge to the bond itself.” No case law has been cited that would support such actions by the Commission. As Quinn wrote, such actions by the regulators “amount to usurping Petitioners’ right to access our State’s Courts.”
“In this novel and complex case, Petitioners did their best under uncertain procedural circumstances to bring about appellate review. … Perhaps Petitioners are correct or perhaps they are incorrect. But there is nothing frivolous about these very real challenges to the Commission’s orders.”
He wrote further that if this Court does not hear the case, “then the Commission will be judge, jury, and executioner – the Commission will be allowed to issue permits, set extravagant and erroneous bonds designed to prevent appellate review of said permits, and then use the erroneous bonds to dismiss any challenges to the permits or to the bonds themselves.”
In a separate lawsuit filed last month against the State of North Carolina and the utility regulators by the Duke Environmental Law & Policy Clinic, NC WARN is asking a NC Superior Court to deem unconstitutional the two laws that allowed shortcut approval and a court-blocking bond in the Asheville case. That suit is intended to prevent Duke Energy from using similar, unconstitutional processes for the 15-20 unneeded, climate-busting, fracked-gas plants it plans to build in the Carolinas by 2030.
Duke Energy is among several US utilities seeking a huge increase in the burning of fracked gas. That’s despite burgeoning evidence that gas supplies are far lower than industry projections, and as concerns mount that the natural gas industry has become the leading driver of US greenhouse emissions due to super-potent methane spewing into the air from equipment throughout the system.Donate Now