Catch-22 prevents courts from deciding constitutionality of laws used to promote Duke Energy’s enormous expansion of fracked-gas power plants and pipelines
In a ruling Friday, a Wake County Superior Court panel indicated that the timing isn’t right for a lawsuit against the State of North Carolina and its utility regulators. Attorneys for the Duke University Environmental Law & Policy Clinic brought the suit on behalf of NC WARN in October 2016, arguing that a 2015 law passed specifically to allow Duke Energy to shortcut the approval process for a large, fracked-gas power plant in Asheville violates both the state and federal constitutions.
NC WARN also contends that the NC Utilities Commission shielded itself from an appeals court review of the $1 billion Duke Energy project by invoking a never before used law from 1965 to require a $98 million bond that locked the courthouse doors to NC WARN and its nonprofit partner, The Climate Times. No other state allows regulators to use a bond to block a power plant appeal.
The lawsuit sought a court ruling that both laws are unconstitutional so that Duke Energy cannot rely on similar shortcut approvals and court-blocking bonds for the 15-20 fracked-gas plants it plans to build in the Carolinas by 2030.
In short, we got caught in a Catch-22. The Court of Appeals, without explanation, had ruled that we couldn’t appeal the Asheville plant approval by the commission without posting a $98 million bond. Then, when constitutionality was challenged, the Superior Court indicated the Asheville bond issue was water over the dam (apparently because construction is well underway). It also indicated that, in trying to prevent a later, similar General Assembly bill that fast-tracks power plant approval, we were premature since no such bill is in play.
So, at this time, no court has reviewed the constitutionality of NC’s bond statute. It’s still to be decided in a future case.
We are optimistic that, if the General Assembly tries to let Duke fast-track approval of other plants, the courts will consider an expedited ruling on the constitutionality of such an action.
The General Assembly gave special favors to a powerful special interest. But it is plainly unconstitutional for politicians and regulators to allow the giant Duke Energy monopoly to keep building unneeded power plants without careful, open review.
The largest US electricity provider, Duke Energy is greatly expanding its burning of fracked gas despite solid evidence that the US fracking boom has become a leading source of methane – a super-potent heat trapper – that’s building up in the atmosphere. This makes natural gas used for electricity even worse for the climate than coal, and climate scientists warn that curbing methane emissions is essential if runaway warming is to be averted.
We deeply appreciate the excellent work and good spirit of the attorneys for the Duke University Environmental Law & Policy Clinic.
