After years of battling Duke Energy in nearly every legal arena it could scout out, Jackson County was dealt a major blow last week when the U.S. Court of Appeals denied its plea for federal intervention.
Jackson County is trying to save the Dillsboro dam from being torn down by Duke, and at the same time force Duke to offer up better compensation for the environmental impacts of its network of hydropower facilities in the region. Jackson hoped the U.S. Court of Appeals would step into the fray and send Duke back to the drawing board to reconsider its plans for dam demolition, slated to move forward this winter.
“This brings Duke a giant step closer to river restoration by removing the Dillsboro Dam,” said Fred Alexander, Nantahala district manager for Duke.
After exhausting everything shy of the U.S. Supreme Court, Jackson County’s fate now hangs on a final case with a decision pending as early as next week. Jackson County hopes to exercise eminent domain to take the dam away from Duke and make it the focal point of a new river front park along the shores of the Tuckasegee River.
A lawsuit in Jackson County Superior Court will decide whether the county can go forward with the plan. Arguments were heard earlier this month, but a decision from Judge Zoro Guice is still pending.
Jackson County Manager Ken Westmoreland said the case for eminent domain is much more critical than the U.S. Court of Appeals filing was.
“That was just another one of those procedural administrative challenges. It doesn’t go to the heart of the issue now, which is condemnation,” Westmoreland said.
Duke’s biggest ally has been the Federal Energy Regulatory Commission, which has consistently agreed that tearing down the Dillsboro dam is a good idea and has been unwilling to force Duke into more mitigation.
Jackson County has challenged everything their lawyers could think of to challenge, from state and federal environmental reports to technical jurisdictional issues, pushing mountains of paperwork around over a six-year period.
Jackson County had finally appealed to the U.S. Court of Appeals in hopes it would force the energy commission to give a hard look at Jackson’s stance, but instead the three-judge panel upheld FERC’s decision.
“This decision affirms that FERC acted appropriately in approving Duke’s application to surrender the license and decommission and remove the Dillsboro Dam and Powerhouse,” Alexander said in a written statement.
The appeal did not require an extensive legal investment on the county’s part. It was mostly a matter of rounding up all the paperwork that has previously been filed in various arenas and packaging it with a new cover letter.
“Most of it was just a compilation of things that had taken place over the years, so it wasn’t all that expensive,” said Westmoreland. The county has not gotten a final legal bill for the appeal filing.