Federal appeals court finds for Duke; FERC issues final approval needed to begin dam removal
After a protracted legal battle with Jackson County that has played out over half a decade, Duke Energy may have the final approvals it needs to begin demolition of the Dillsboro Dam.
A three-judge panel of the District of Columbia Circuit of the U.S. Court of Appeals yesterday (Dec. 22) handed down a decision in favor of the power company. That ruling comes less than a week after federal regulators Dec. 16 issued the final OK necessary before Duke begins dismantling the dam. According to Fred Alexander, Duke’s district manager for government and community relations, dam removal is slated to get under way in January.
The remaining question mark is the outcome of the condemnation suit brought by the county in Superior Court. Though lawyers for both sides argued numerous motions – including the county’s request for an injunction to prevent the power company from taking out the dam almost a month ago, Judge Zoro as of press time not rendered his verdict on whether the county can keep the dam in place by using eminent domain to seize it and Duke’s surrounding property to create a park.
The D.C. Circuit’s rejection of the county’s challenge of the Federal Energy Regulatory Commission’s July 2007 surrender order, which gave Duke the go-ahead to proceed with dam removal plans, is good news for the power company, Alexander said Tuesday.
“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. “This brings Duke a giant step closer to river restoration by removing Dillsboro Dam.”
Jackson County Commissioners’ Chairman Brian McMahan declined comment Tuesday, saying he didn’t want to speak on the matter because he hadn’t read the D.C. Court’s just-released ruling.
The three federal judges deliberated some 10 weeks after hearing oral arguments Oct. 9 before issuing their 14-page document. D.C. Circuit Court Judge Karen Henderson filed the opinion, and sums up the court’s opinion with the following statement.
“We deny (Jackson County’s) petition for review because the challenged decisions are not ‘arbitrary and capricious or otherwise contrary to law.’”
The complete D.C. Court ruling is attached below.
