State ex rel. Utilities Commission v. North Carolina Waste Awareness and Reduction Network

The North Carolina Waste Awareness and Reduction Network (NC WARN) (plaintiff) sought to provide affordable solar electricity to nonprofit organizations. In December 2014, NC WARN and a Greensboro church entered into a power-purchase agreement, which provided that NC WARN would install, own, and operate a solar-panel system on the church’s property. NC WARN was to produce the electricity, and the church was to compensate NC WARN for each kilowatt hour (kWh) consumed. The church was in the exclusive territory of Duke Energy Progress, LLC and Duke Energy Carolinas, LLC (collectively, Duke Energy). It was common for states to limit natural competition within the electricity industry by granting exclusive service territories to utilities to avoid duplication of investments, economic waste, and inefficient service. In June 2015, NC WARN sought a declaratory ruling from the North Carolina Utilities Commission (commission) (defendant) that it would not be regarded as a public utility under the Public Utilities Act if it provided solar electricity to the church. The commission determined that NC WARN’s arrangement with the church called for classification as a public utility under N.C.G.S. § 62-30, which defined public utility as any entity that provides electricity “to or for the public for compensation.” The commission fined NC WARN for each day that it provided electricity service. NC WARN appealed.