NC WARN Makes Appeals Court Bid to End Duke Monopoly

Environmental advocacy group NC WARN is asking the North Carolina Court of Appeals to revoke Duke Energy’s long-standing monopoly on electricity sales in the Tar Heel State by letting the organization to resume selling solar-generated power directly to Faith Community Church in Greensboro, according to a December 27 report in The News & Observer.

NC WARN is asking the Court of Appeals to do what the North Carolina Utilities Commission refused to do in April (Docket No. SP-5157, Sub O) when it slapped NC WARN with a $200-a-day fine totaling $60,000.

The Utilities Commission agreed with Charlotte-based Duke that state law does not allow NC WARN or other “third parties” to compete for electricity customers against monopoly utilities at that time, according to the local news outlet.

NCWARN has until January 3 to submit its legal filings to the appellate court; oral arguments are expected to begin sometime next year.

A lot is riding on the case, which, The News & Observer noted,  could open up North Carolina’s power market to private solar developers selling electricity directly to homeowners and businesses if NC WARN prevails.

NC WARN director Jim Warren told the newspaper that the Greensboro church is a test case for consumer choice and for fuel choice.

“We absolutely believe we can win at the Court of Appeals,” Warren said. “From day one, we have had a very strong legal argument.”

The organization argues that it is offering financing to Faith Community Church, which will own the $20,000 solar panels when they have been paid off. The financing argument was rejected by Duke, the commission and its public staff.

The commissioners said in their April ruling that NC WARN “does not explain why sales of power are a necessary feature of its program. Adding this feature provides no apparent benefit to NC WARN’s program; rather it only converts a perfectly legal transaction into an unlawful one.”

Indeed, the commission’s public staff told the court in a December 19 filing that the monopoly system works only if it is not undermined by letting unregulated competitors cherry-pick customers without any legal obligation to provide electricity to everyone, the local news outlet reported.

The Utilities Commission in April ordered NC WARN to return all sales proceeds to the church with 10 percent interest. NC WARN put the money into escrow until the courts resolve the matter.

Duke contends NC WARN’s stated rationale is a smokescreen that is meant to “conceal its greater ambition to serve an expanded customer base,” according to court papers.

The case, which started with NC WARN’s deal with Faith Community Church in July 2015, could last into 2018, the News &  Observer reported, as both NC WARN and Duke are expected appeal to the North Carolina Supreme Court if they lose at the court of appeals.

NC WARN had been selling power to the church for 5 cents/kWh – a less than half the rate charged by Duke.