STATE OF NORTH CAROLINA EX REL. UTILITIES COMMISSION; PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION; DUKE ENERGY CAROLINAS, LLC; DUKE ENERGY PROGRESS, LLC; VIRGINIA ELECTRIC AND POWER COMPANY, d/b/a Dominion North Carolina Power, Defendants,
NORTH CAROLINA WASTE AWARENESS AND REDUCTION NETWORK, Plaintiff.
in the Court of Appeals 23 February 2017.
by Plaintiff from order entered 15 April 2016 by the North
Carolina Utilities Commission, No. SP-100, Sub 31
Attorney Robert B. Josey, Jr. and Staff Attorney David T.
Drooz, for Defendant-Appellee Public Staff - North Carolina
Law Offices, PLLC, by Dwight W. Allen and Lawrence B. Somers,
for Defendants-Appellees Duke Energy Progress, LLC, and Duke
Energy Carolinas, LLC.
McGuireWoods, LLP, by Brett Breitschwerdt and Andrea R.
Kells, for Defendant-Appellee Virginia Electric & Power
Company, d/b/a Dominion North Carolina Power.
Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn and
John D. Runkle for Plaintiff-Appellant North Carolina Waste
Awareness and Reduction Network.
Day & Presnell, P.A., by Daniel C. Higgins, for amicus
curiae North Carolina Eastern Municipal Power Agency, North
Carolina Municipal Power Agency Number 1 and Electricities of
North Carolina, Inc.
Southern Environmental Law Center, by David Neal and Lauren
Bowen, for amicus curiae North Carolina Interfaith Power and
Light, North Carolina Council of Churches, Greenfaith, The
Christian Coalition of America, Young Evangelicals for
Climate Action, and Creation Care Alliance of Western North
Mullins Riley & Scarborough LLP, by Joseph W. Eason, for
amicus curiae North Carolina Electric Membership Corporation.
North Carolina Waste Awareness and Reduction Network
("NC WARN") appeals from an order of the North
Carolina Utilities Commission (the "Commission")
concluding that NC WARN was operating as a "public
utility, " subject to the Commission's jurisdiction,
when it entered into an agreement with a Greensboro church
(the "Church") to install and maintain a solar
panel system on the Church's property and to charge the
Church based on the amount of electricity that the system
generated. The Commission also concluded that NC WARN's
actions constituted a provision of "electric
service" to the Church, infringing on the utility
monopoly of Duke Energy Progress, LLC, and Duke Energy
Carolinas, LLC, (collectively "Duke Energy") in
violation of Chapter 62 of the North Carolina General
agree and conclude that NC WARN is acting as a "public
utility" by operating its system of solar panels for the
Church on the Church's property. Therefore, we affirm the
order of the Commission.
December 2014, NC WARN entered into a "Power Purchase
Agreement" (the "Agreement") with the Church.
The Agreement provided that NC WARN would install and
maintain a system of solar panels on the Church's
property. Under the Agreement, the solar panels would
"remain the property of NC WARN" and the Agreement
did not "constitute a contract to sell or lease"
the solar panels to the Church. In exchange, the Church
agreed to compensate NC WARN based on the amount of
"electricity produced by the system" at a rate of
$0.05 per kWh.
2015, NC WARN filed a request with the Commission for a
declaratory ruling that its proposed activities under the
Agreement would not cause it to be regarded as a "public
utility" pursuant to the Public Utilities Act (the
Commission, however, concluded that NC WARN's arrangement
with the Church constituted a public utility in violation of
the Act. In addition, the Commission ordered that NC WARN
refund its charges to the Church and pay a fine of $200 for
each day that NC WARN provided electric service to the Church
through the solar panel system. NC WARN timely appealed the
dispositive issue on appeal is whether the Commission
correctly determined that NC WARN was operating as a
"public utility." See State ex rel. N.C. Utils.
Comm'n v. New Hope Rd. Water Co., 248 N.C. 27, 29,
102 S.E.2d 377, 379 (1958) ("The Commission has no
jurisdiction over these respondents unless they are public
utilities within the meaning of [the Public Utilities
Act]."). This issue is a question of law, which is
reviewed de novo by our Court. N.C. G.S. § 62-94(b)
(2015) ("[T]he court shall decide all relevant questions
of law [and] interpret constitutional and statutory
provisions."); New Hope, 248 N.C. at 30, 102
S.E.2d at 379 ("[T]he question of whether or not a
particular company or service is a public utility is a
judicial one which must be determined as such by a court of
competent jurisdiction."); State ex rel. Utils.
Comm'n v. Envir. Defense Fund, 214 N.C.App. 364,
366, 716 S.E.2d 370, 372 (2011) ("Questions of law are
reviewed de novo.").
Public Utilities Act, found in Chapter 62 of our General
Statutes, gives the Commission the power to supervise and
control the "public utilities" in our State. N.C.
G.S. § 62-30 (2015). A "public utility" as
defined in the Act is any entity which owns and operates
"equipment and facilities" that provides
electricity "to or for the ...