Solar-church test case filed at NC Supreme Court

Press release from NC WARN:

An unprecedented legal battle challenging the nation’s largest electric monopoly will be decided by the NC Supreme Court. On Nov. 15, attorneys for NC WARN filed a detailed appeal arguing that the nonprofit should be allowed to resume selling solar power to Greensboro’s Faith Community Church from a system installed on the roof of the church in 2015.

Several national groups joined forces to support the solar sales by filing an amicus brief in the case. Led by attorneys at the Center for Biological Diversity, the detailed brief is joined by Greenpeace, Friends of the Earth, Food & Water Watch and the Institute for Local Self-Reliance. They are calling for increased energy competition as vital to the growth of clean, affordable power for all customers.

The North Carolina test case is a challenge to Duke Energy’s ability to prevent competition from companies that install solar systems on rooftops with little or no upfront cost to the customer, and then sell power to the customer. Such financing arrangements have been central to the growth of rooftop solar in many states. But utilities in multiple states – aided by the Koch brothers – have fought against such “third-party sales” in order to protect their monopolies from the surge in solar power popularity.

Rev. Nelson Johnson, Pastor of Faith Community Church, says, “There has never been a more important time to challenge Duke Energy’s control over the benefits we are all provided by the sun. We are glad to stand with NC WARN at the NC Supreme Court. Global climate disruption is harming many people right here in North Carolina, and the same is true for Duke Energy’s constant rate increases to pay for more and more fossil fuel power plants that are not needed.”

A Court of Appeals panel ruled 2-1 for Duke last month, but Judge Christopher Dillon’s extensive dissent allows the case to be heard by the high court. He cited the federal constitution and multiple NC Supreme Court decisions regarding private property rights. Various statewide polls show that voters across the political spectrum want competition in the power industry along with more renewable energy.

NC WARN points out that third-party sales are in accord with the NC General Assembly’s declared policy “to encourage private investment in the development of renewable energy,” as Judge Dillon pointed out in his dissent. The judge also noted that the NC Utilities Commission (NCUC), in siding with Duke, reversed its own earlier ruling in a similar case.

NC WARN’s appeal includes a challenge to the NCUC’s claim – in ruling for Duke – that the solar sales to the church “competes with Duke Energy in its exclusive franchise territory.” NC WARN attorneys argue that the group is providing a service not offered by Duke Energy to its customers, thus it is not competing with the corporate monopoly.

A bipartisan bill introduced by Republicans in the NC legislature in 2015 would have explicitly allowed third-party financing but was quashed by Duke Energy, the Koch brothers and various front groups. During the same period, NC WARN asked the NCUC for a declaratory ruling on its contract with Faith Community Church. While the case was moving toward the Supremes, the 2017 House Bill 589 explicitly outlawed third-party sales. A Supreme Court win in the solar-church case could cause a legislative revisit of the issue in the future, and would allow solar sales to resume between the two nonprofits.

A $60,000 penalty that Duke persuaded regulators to levy against NC WARN remains suspended pending outcome of the Solar Freedom case. Meanwhile, Faith Community Church is enjoying free solar power from the 5.2-kilowatt system because the church and NC WARN agreed to stop the sales transaction while the case is appealed.

Meanwhile, a new challenge to utility monopolies is quickly emerging as Tesla and other battery makers are now installing low-cost battery storage which, coupled with solar power, reduces customer reliance on traditional power companies. NC WARN is pressing the NCUC and Duke Energy to debate the merits of a new statewide strategywhich could quickly replace fossil-fuel electricity with on-site solar and battery storage for far less money than Duke Energy’s continuing, multi-billion dollar expansion of natural gas power from fracking operations.

Matt Quinn of the Law Offices of F. Bryan Brice, Jr. is working with NC WARN attorney John Runkle in the appeal.

Jim Warren, director of NC WARN, urged the media and public to scrutinize Duke Energy’s corporate greenwashing: “Duke Energy remains near the bottom of the US list for renewable energy – at under 2% of overall generation in the Carolinas. Recent filings show that Duke plans to continue doing the bare minimum in renewables for several years, then to being decreasing its commitment to clean energy.”