Environmental advocacy group NC WARN is challenging the constitutionality of a state law that effectively blocked it from continuing its legal battle against a $1 billion natural gas power plant that Duke Energy plans to build.
The Durham-based nonprofit filed a lawsuit against the state and the N.C. Utilities Commission in Wake County Superior Court on Wednesday.
The challenge was triggered by the Utilities Commission’s decision to require NC WARN and a second nonprofit to post a $98 million bond before they could appeal a construction permit obtained by Duke Energy for a new power plant in Buncombe County.
The suit contends a 1965 state law that protects electric utility customers from increased costs that could arise from construction delays while a permit is under appeal “unconstitutionally grants the commission the power to set excessive and prohibitive” bonds that block parties’ access to appeals courts. NC WARN has a dozen employees and a $1.2 million annual budget.
No other state gives its agencies the power to require such a bond, the suit argues.
The suit also challenges the constitutionality of a second state law, the Mountain Energy Act passed in 2015, that permitted the commission to conduct an expedited hearing on Duke’s application to build the Buncombe plant.
NC WARN’s executive director, Jim Warren, said in a statement that “it is plainly unconstitutional for politicians and regulators to allow the giant Duke Energy monopoly to keep building power plants without careful, open review.”
Sam Watson, the Utilities Commission’s general counsel, said he hadn’t seen the lawsuit and therefore couldn’t comment.
NC WARN and Climate Times, a Boone nonprofit, contend that the natural gas used to fuel power plants, largely obtained via a technique called fracking, results in methane leaks that release more greenhouse gas into the atmosphere than by burning coal.