UPDATED Gov. Pat McCrory has hired outside counsel to appear before an appeals court in a long-running lawsuit over hydroelectric dams on the Yadkin River after a dispute with Attorney General Roy Cooper’s office on how to proceed with the case.
State Department of Justice attorneys who had been working on the case filed notice in federal court on Tuesday asking to withdraw from making oral arguments in the Alcoa Power Generating lawsuit. Oral arguments in the case are scheduled to be heard in the U.S. 4th Circuit Court of Appeals in Richmond, Va. on Thursday.
McCrory has named former N.C. Supreme Court Justice Bob Orr as lead counsel for the oral arguments assisted by K. Edward Greene, a former state appeals court judge.
McCrory’s general counsel, Bob Stephens, said in an interview that his office asked the attorney general to assign the state’s solicitor general, John Maddry, to the case. Maddry’s job is to handle appeals and he has extensive experience.
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“The attorney general’s office refused and we told them if you cannot assign him then we will be forced to hire outside counsel,” Stephens said. “We never asked the AG to withdraw. I pleaded with them to leave their lawyers who handled the case at the trial court level because they had the institutional knowledge.”
Noelle Talley, the attorney general’s spokeswoman, said the justice department attorney who had been scheduled to deliver oral arguments had worked on the case for several years. She said the department disagreed with the decision to designate outside counsel.
The conflict is the latest example of the clash between the Republican McCrory and the Democrat Cooper over legal strategy and how far to continue appealing a number of cases. Republicans have used it to accuse Cooper of not doing his job.
Orr has had an interest in the Alcoa controversy for some time. In 2014 he wrote an opinion piece in The News & Observer defending the state’s position, saying there is a public interest in protecting the river.
The lawsuit involves the state’s challenge of whether Alcoa owns the riverbed on which the dams were built. A federal judge in Raleigh last year ruled the state waited too long to make that challenge. The state appealed that ruling.
There is also a parallel legal proceeding in which the state wants federal regulators to withdraw their renewal of the company’s operating license. The state is concerned it would not have a say in how much water is released on the state’s second-largest river system if the Federal Energy Regulatory Commission renews the license, according to The Associated Press.
State attorneys on Monday asked the commission to reconsider its decision in September to allow the dams to continue to generate electricity for sale, AP reported.