“Sooner or later we have to come to the realization that this may be futile. We have to decide how much more of this can we stand,” said Commissioner Tom Massie.
Duke’s federal permits to harness the power of the Tuckasegee River with a series of six dams are up for renewal. To get new permits, Duke is required to provide environmental and recreational benefits to the public.
Jackson County leaders are unhappy with the mitigation Duke proposed and hopes to extract more. The county has argued its point before the Federal Energy Regulatory Commission for four years now.
“They (Duke) are generating a significant sum of money off a public resource for a privately owned utility. The question was were we getting a fair shake?” Massie said. Massie broached the topic at the county commissioners meeting Monday (Dec. 17).
While the commissioners seem to be losing whatever hope they had left, they also seem reluctant to give up the cause and yield to what they see as an injustice perpetrated on the people of Jackson County by Duke.
“It is about the use of the river and an adequate payment to the people of Jackson County who own the river,” Commissioner Brian McMahan said.
To Massie, that was justification enough for the county’s position and expense fighting Duke thus far. The river is a public resource, and the commissioners’ job is looking out for the public’s best interest.
“I have thought all along it was a battle worth fighting, even though I knew all along it was an uphill fight,” Massie said.
If the county does not get a fair shake from Duke now, it won’t get another chance for at least 30 years, and possibly as many as 50. That’s how long Duke’s new dam permits will be good for. Duke won’t have to produce a mitigation package again until the next time the permits come up for renewal — possibly not for another 50 years, Massie said.
“It has a significant impact for a generation,” Massie said.
That said, commissioners questioned the wisdom of continuing the fight.
“We fought the good fight, but sooner or later we are going to have to make a decision whether the perceived benefits we can win from this case are less than the costs we are having to spend from the taxpayers’ treasure to do this,” Massie said. “We are getting very close to that point.”
The county has spent nearly $170,000 fighting Duke, primarily on legal fees. The work has mostly entailed filing lengthy arguments with the Federal Energy Regulatory Commission. The federal energy commission decides how much mitigation the people of Jackson County are owed for the use of the Tuckasegee River by Duke.
But so far, the energy commission has consistently sided with Duke and denied Jackson County’s arguments.
“We have lost at every turn in this process,” Massie said
The energy commission has given Duke what it wanted — requiring nothing more in the form of mitigation than what Duke proposed. The centerpiece of Duke’s proposal is tearing down the Dillsboro dam, restoring a section of free-flowing river and benefiting both river recreation and the environment.
“It has come to the point where we have come to the end of the path and there are no other steps we can take,” McMahan said.
The last recourse is taking Duke to federal court.
Commissioners wondered whether they have the money or stamina it would take to sue Duke Energy. Massie seemed to think the answer is “no.”
“I don’t see that there is a whole lot more we can do,” Massie said. “The taxpayers of Jackson County can’t compete with a corporation bringing in billions of dollars on an annual basis. What are the probabilities of being successful in this?”
Commissioners are turning to their D.C. lawyer, Paul Nolan, for an answer to that question. Nolan will appear before the commissioners on Jan. 17.
“Let’s wait and talk with him and see what his position is now in terms of our chances realistically,” said Commissioner Joe Cowan.
Mark Singleton, a Jackson County resident and also the director of the national paddling organization American Whitewater, thinks the county has spent far too much fighting Duke already.
“It seems to be a huge misappropriation of county resources,” Singleton said. Singleton has two children at Fairview Elementary, which has failed the federal No Child Left Behind standards, and would rather see the money go to education.
“There is so much they could have done with that money that would have helped to get the county out of a cycle of low performance in the education system,” Singleton said.
American Whitewater supports Duke’s mitigation proposal for the additional paddling opportunities it will provide.
Sam Fowlkes, another Jackson resident, also questioned the money spent fighting Duke and whether it was truly the will of the people.
“I wonder what poll this was based on,” Fowlkes said.
McMahan put the county’s expense fighting Duke in context by bringing up the value of the Dillsboro dam — an asset the county would come to own if it is successful.
“We have to look at what we can pay, but we also have to look at what is the Dillsboro dam worth to Jackson County. I know it has a value of actual bricks and mortar, but it also has a value as far a historical and sentimental value,” McMahan said. “That is going to be the driving factor for me when deciding whether it is worth the expenditure of funds.”
But the dam isn’t the only asset that should have a value assigned to it, Massie countered.
“It is not just about the Dillsboro dam,” Massie said. “To me it is about the value of the public resources that Duke Energy is allowed to use.”
McMahan said the fight is also about green energy. The Dillsboro dam provides sustainable energy, which is becoming increasingly important to society and the planet, McMahan said.
Commissioner Mark Jones agreed. Jones said the fight to save the dam is Jackson County’s contribution to a much larger movement — one to preserve the environment for future generations.
“I think the energy argument is very important,” Jones said.
The commissioners agreed on another thing: the issue is complicated and confusing even for them, let alone the public who likely knows even less about what the county has been doing in the fight against Duke. The commissioners said that Attorney Paul Nolan’s presentation on January 7 should shed light on that for the public. But whether the commissioners can expect an honest assessment of their chances of winning a federal case against Duke from the lawyer that stands to benefit if they keep fighting is unclear.
“There’s a lot at stake here,” Cowan said.
“We have a lot to think about,” he said.