If the law prices simple access to the courts beyond the means of the overwhelming majority of the public, can the agency whose decisions are shielded from review still be considered accountable to the public?
We might be excused for concluding that the only honest answer to that question is “no.” Unfortunately, the question posed is not hypothetical. It’s being fought out now in the North Carolina courts, in the effort by two citizen groups to force a full review of the merits of an important decision by the NC Utilities Commission (NCUC).
Here’s the summary: In an expedited process, the NCUC last March issued a permit to Duke Energy to build a new gas-fired power plant in Buncombe County, to replace an older coal-fired plant scheduled to be demolished. Two citizen groups (NC WARN and Climate Times) sought to appeal the decision for a full, in-depth review. In order to do so under existing North Carolina law, they are being required to file a bond to cover the costs of delaying the plant if they do not prevail in their court challenge.
The NCUC set the required bond at $10 million. The citizen groups challenged that amount, and the NC Court of Appeals directed the NCUC to reconsider. On reconsideration, the NCUC upped the required appeal bond to $98 million.
In other words, citizens, post a bond guaranteeing the payment of up to $98 million if you lose, or forget about your day in court. The citizen groups plan to appeal the case back to the state Court of Appeals.
The Conservation Insider Bulletin offers no comment on the merits of the citizen groups’ challenge to the NCUC’s decision to issue the power plant permit (known as a “certificate of public convenience and necessity”). We have not studied that question in sufficient depth to form an evidence-based opinion. However, we think that it’s a reasonable question whether the NCUC—supposedly the guardians of the public trust on public utility matters in our state—has done so either.
Certainly, the special legislation called the “Mountain Energy Act” passed in 2015 at the behest of State Senator Tom Apodaca did not facilitate such a full evidentiary review. In language worded so narrowly that it clearly applied only to this project, the Mountain Energy Act effectively prohibited the NCUC from developing a full evidentiary record for its decision. The decision had to be made within 45 days of the petition for the permit being filed. (That’s for a major new power plant with a multi-hundred-million-dollar price tag.)
A phrase popular in contemporary politics comes to mind here: “rigged system.” The decision to replace an aging coal plant with a new gas-fired plant in Buncombe County may or may not be the best call on its public interest merits. Under the process underway now, though, it seems that the public cannot have confidence that all the facts have been considered by the public agency charged with reaching that judgment. And the question raised by this combination of legal circumstances goes beyond the merits of this single case.
If there’s no full public review of such major environmental decisions by a public state agency, and objecting citizens cannot even be heard in court to have that question reviewed, then the system has indeed been rigged against the public’s interest, our environment, and public health.