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Appeal denied, NC WARN tries again

The NC Utilities Commission says two advocacy groups missed a filing deadline and therefore blew their chance to appeal a state permit issued to Duke Energy to build a power plant in Asheville.
The NC Utilities Commission says two advocacy groups missed a filing deadline and therefore blew their chance to appeal a state permit issued to Duke Energy to build a power plant in Asheville.

The N.C. Utilities Commission said two advocacy groups missed a filing deadline and therefore blew their chance to appeal a state permit issued to Duke Energy to build a power plant in Asheville.

But the two nonprofits – including NC WARN in Durham – say they plan to appeal the Utilities Commission ruling, even though the commission’s decision expressly bars the groups from filing more appeals on the matter.

The paradox is the latest twist in a labyrinthine legal case waged this year by NC WARN and The Climate Times, in Boone, to block Charlotte-based Duke’s bid to build a $1 billion natural-gas power plant in Buncombe County.

“This doesn’t knock us out,” said NC WARN executive director Jim Warren. “We knew it was going to happen.”

The Utilities Commission approved Duke’s proposal to build the Asheville plant in March in a commission proceeding that did not require a full hearing with cross-examination of witnesses. The special accelerated proceeding was approved by the state legislature, as part of legislation that requires Duke to modernize the way it stores coal ash in the area. As Duke revamped its coal ash storage practices, the power company elected to close down a coal-burning plant there.

“We have a schedule to keep,” said Duke spokesman Tom Williams. “If we can’t keep the schedule, the coal plant will have to run longer.”

NC WARN and The Climate Times counter that Duke had other options to meet energy demand, but those options weren’t explored because the Utilities Commission didn’t hold a full hearing. They say that natural gas, touted as a clean alternative to coal, is actually a worse offender as regards climate change because of methane leaks into the atmosphere. So the organizations vowed to appeal the Utilities Commission permit at the N.C. Court of Appeals.

However, appealing a Utilities Commission permit in court is no simple matter. The organizations would have to put up a security bond to cover any financial losses that might be incurred by Duke because of delays related to the appeal. The bond is required by a 1965 state law that has never been invoked in anyone’s memory, because Utilities Commission permits are typically not appealed in court. The purpose of the bond is to protect utility customers from paying additional construction costs in their monthly bills.

For the past several months, the nonprofits and Duke have wrangled over the amount of the bond. NC WARN had proposed a bond of $250, while Duke said the cost overruns could be as high as $240 million. Last month the Utilities Commission set the bond amount at $98 million, a sum the two advocacy groups say they can’t possibly afford.

Still, they had five days to pay the bond, or submit a pledge they would pay it. Instead, they let the deadline pass.

“The law is clear,” the Utilities Commission wrote in its Friday ruling. “The Commission provided NC WARN five days from the date of the order to file such bond or undertaking.”

Warren said he’d like the N.C. Court of Appeals to scrap the bond, because it presents an insurmountable hurdle for citizens seeking redress from the courts. He also said the Court of Appeals should require a full hearing to determine if there are better ways than building a new power plant for Duke to provide electricity in Asheville.

And Warren questions whether any cost overruns should automatically be charged to Duke’s customers.

“We continue to maintain it’s not the customers who should be left with any type of liability,” Warren said. “It’s Duke’s shareholders – they are the ones the executives report to.”

John Murawski: 919-829-8932, @johnmurawski

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