{ "id": 8353032, "name": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION, PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION, ATTORNEY GENERAL, ROY COOPER, CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC., CAROLINA INDUSTRIAL GROUPS FOR FAIR UTILITY RATES I AND II, VIRGINIA ELECTRIC AND POWER COMPANY d/b/a NORTH CAROLINA POWER, NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1 and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY, INC., Appellees v. CAROLINA POWER & LIGHT COMPANY, DUKE POWER COMPANY, and NORTH CAROLINA ELECTRIC MEMBERSHIP CORPORATION, Appellants", "name_abbreviation": "State ex rel. Utilities Commission v. Carolina Power & Light Co.", "decision_date": "2005-12-06", "docket_number": "No. COA02-1737-2", "first_page": "681", "last_page": "691", "citations": [ { "type": "official", "cite": "174 N.C. App. 681" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "614 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633108 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/614/0281-01" ] }, { "cite": "359 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803419 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc/359/0516-01" ] }, { "cite": "588 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "Wynn, J. dissenting" } ], "opinion_index": -1 }, { "cite": "161 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956449 ], "year": 2003, "pin_cites": [ { "parenthetical": "Wynn, J. dissenting" } ], "opinion_index": -1, "case_paths": [ "/nc-app/161/0199-01" ] }, { "cite": "614 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633108 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "290" }, { "page": "284" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0281-01" ] }, { "cite": "437 U.S. 617", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183310 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "628" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/us/437/0617-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-79", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "461 U.S. 375", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298624 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "394", "parenthetical": "state regulation of the wholesale rates charged by utility to its members is well within the scope of \"legitimate local public interests\" and does not impermissibly burden interstate commerce" }, { "page": "17", "parenthetical": "state regulation of the wholesale rates charged by utility to its members is well within the scope of \"legitimate local public interests\" and does not impermissibly burden interstate commerce" } ], "opinion_index": 0, "case_paths": [ "/us/461/0375-01" ] }, { "cite": "397 U.S. 137", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12050581 ], "weight": 5, "year": 1970, "pin_cites": [ { "page": "142" }, { "page": "178" }, { "page": "142" }, { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/us/397/0137-01" ] }, { "cite": "359 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803419 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "529" }, { "page": "519-21" }, { "page": "519-21" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0516-01" ] }, { "cite": "588 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "161 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956449 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/161/0199-01" ] }, { "cite": "614 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633108 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "284" }, { "page": "290" } ], "opinion_index": 1, "case_paths": [ "/se2d/614/0281-01" ] }, { "cite": "242 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "867", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "294 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574144 ], "year": 1978, "pin_cites": [ { "page": "605", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0598-01" ] }, { "cite": "132 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "254" } ], "opinion_index": 1 }, { "cite": "260 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572960 ], "year": 1963, "pin_cites": [ { "page": "51" } ], "opinion_index": 1, "case_paths": [ "/nc/260/0043-01" ] }, { "cite": "364 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "387" } ], "opinion_index": 1 }, { "cite": "321 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569989 ], "year": 1988, "pin_cites": [ { "page": "588" } ], "opinion_index": 1, "case_paths": [ "/nc/321/0586-01" ] }, { "cite": "439 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "132", "parenthetical": "emphasis supplied" } ], "opinion_index": 1 }, { "cite": "335 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528637 ], "year": 1994, "pin_cites": [ { "page": "501-02", "parenthetical": "emphasis supplied" } ], "opinion_index": 1, "case_paths": [ "/nc/335/0493-01" ] }, { "cite": "278 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3904620 ], "weight": 2, "year": 1928, "pin_cites": [ { "page": "10-11", "parenthetical": "citations omitted" }, { "page": "153", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/us/278/0001-01" ] }, { "cite": "455 U.S. 331", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11305448 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "applying a Commerce Clause analysis to a regulation restricts ing the transportation of privately produced electricity in interstate commerce" }, { "parenthetical": "applying a Commerce Clause analysis to a regulation restricts ing the transportation of privately produced electricity in interstate commerce" } ], "opinion_index": 1, "case_paths": [ "/us/455/0331-01" ] }, { "cite": "452 U.S. 314", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1313583 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "323-24", "parenthetical": "internal citations and quotations omitted" }, { "page": "50", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 1, "case_paths": [ "/us/452/0314-01" ] }, { "cite": "476 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12427 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "579" }, { "page": "559" }, { "page": "579", "parenthetical": "emphasis supplied" }, { "page": "560", "parenthetical": "emphasis supplied" }, { "page": "579" }, { "page": "560", "parenthetical": "the court must consider the overall effect of the statute on local and interstate activity" } ], "opinion_index": 1, "case_paths": [ "/us/476/0573-01" ] }, { "cite": "514 U.S. 749", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339528 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "762-63", "parenthetical": "quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 90 L. Ed. 2d 552, 559 (1986)" }, { "page": "832-33", "parenthetical": "quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 90 L. Ed. 2d 552, 559 (1986)" } ], "opinion_index": 1, "case_paths": [ "/us/514/0749-01" ] }, { "cite": "516 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 324365 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "331", "parenthetical": "citation omitted" }, { "page": "804", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/us/516/0325-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 62-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 1 }, { "cite": "397 U.S. 137", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12050581 ], "weight": 4, "year": 1970, "pin_cites": [ { "page": "142", "parenthetical": "citation omitted" }, { "page": "178", "parenthetical": "citation omitted" }, { "page": "142" }, { "page": "178" } ], "opinion_index": 1, "case_paths": [ "/us/397/0137-01" ] }, { "cite": "359 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803419 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "519" }, { "page": "529" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0516-01" ] } ], "analysis": { "cardinality": 865, "char_count": 25355, "ocr_confidence": 0.764, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20285101563836347 }, "sha256": "7ca51602442236d09189cfb4bb9b6fea131ae1a93beb32769799af1eabeb8360", "simhash": "1:09bb240f174e1ef6", "word_count": 3918 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEVINSON concurs.", "Judge TYSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION, PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION, ATTORNEY GENERAL, ROY COOPER, CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC., CAROLINA INDUSTRIAL GROUPS FOR FAIR UTILITY RATES I AND II, VIRGINIA ELECTRIC AND POWER COMPANY d/b/a NORTH CAROLINA POWER, NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1 and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY, INC., Appellees v. CAROLINA POWER & LIGHT COMPANY, DUKE POWER COMPANY, and NORTH CAROLINA ELECTRIC MEMBERSHIP CORPORATION, Appellants" ], "opinions": [ { "text": "WYNN, Judge.\nNon-discriminatory state regulations that \u201ceffectuate a legitimate local public interest\u201d and incidentally burden interstate commerce \u201cwill be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.\u201d Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 178 (1970). Appellants argue that the North Carolina Utilities Commission\u2019s regulation at issue violates the Commerce Clause and is burdensome on interstate commerce. As we find that the local benefit outweighs the incidental burden to interstate commerce, we affirm the Utility Commission\u2019s orders.\nThis case is on remand to this Court \u201cfor consideration of the remaining issues\u201d as mandated by our Supreme Court\u2019s holding in State ex rel. Utils. Comm\u2019n v. Carolina Power & Light Co., 359 N.C. 516, 529, 614 S.E.2d 281, 290 (2005) wherein the facts pertaining to the issues in this case are fully set forth. See also State ex rel. Utils. Comm\u2019n v. Carolina Power & Light Co., 161 N.C. App. 199, 588 S.E.2d 77 (2003).\nThe issues we address on remand are: (1) whether state regulation of wholesale interstate power contracts impermissibly burdens interstate commerce; (2) whether the Utility Commission is authorized under chapter 62 of the North Carolina General Statutes to require the submission of contracts with wholesale interstate purchasers for review prior to execution; and (3) whether the Utility Commission erred in failing to provide guidance by which it would assess the reasonableness of the agreements over which it claims jurisdiction.\nAppellants first argue that the Utility Commission\u2019s regulation of wholesale contracts, Regulatory Condition 21, impermissibly burdens interstate commerce. Regulatory Condition 21 requires that a utility shall not enter into contracts for the wholesale of electric energy and/or capacity at native load capacity without first giving the Utility Commission and Public Staff written notice twenty days prior to execution of the contracts.\nIn reversing the earlier opinion in this case, our Supreme Court stated that the Utility Commission\u2019s purpose, \u201cwas to provide a mechanism through which [the Utility Commission] meaningfully could enforce the requirement \u2018that CP&L\u2019s retail native load customers receive priority with respect to, and the benefits from, CP&L\u2019s existing generation and that CP&L\u2019s wholesale activities not disadvantage its retail ratepayers from either a quality of service or rate perspective[,]\u2019 \u201d and it could \u201c \u2018take appropriate action ... to secure and protect reliable service to retail customers in North Carolina.\u2019 \u201d Carolina Power & Light Co., 359 N.C. at 519-21, 614 S.E.2d at 284. As our Supreme Court has deemed that the record on appeals shows the purpose of the regulation, that puipose is binding on this Court.\nAppellants contend that the Utility Commission\u2019s regulation of wholesale contracts impermissibly burdens interstate commerce in violation of the Commerce Clause of the United States Constitution. However, the Utility Commission\u2019s regulation ensures that North Carolina retail consumers get a reliable source of electricity, and is merely burdensome on interstate commerce and not discriminatory. Accordingly, the regulation should be analyzed under the test set out by the United States Supreme Court in Pike, 397 U.S. at 142, 25 L. Ed. 2d at 178. The Pike test states that \u201c[w]here the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.\u201d Id.\nApplying the Pike test to the case at hand, the requirement that the companies allow the Commission and Public Staff to review proposed contracts twenty days before they are signed, is not overly burdensome on interstate commerce as the \u201cputative local benefit,\u201d to ensure supply of electricity to retail customers, outweighs the burden on interstate commerce. See Ark. Elec. Coop. Corp. v. Ark. Public Serv. Comm\u2019n, 461 U.S. 375, 394, 76 L. Ed. 2d 1, 17 (1983) (state regulation of the wholesale rates charged by utility to its members is well within the scope of \u201clegitimate local public interests\u201d and does not impermissibly burden interstate commerce).\nAs the Utility Commission\u2019s regulation does not violate the Commerce Clause, we affirm the Utility Commission\u2019s orders.\nAppellant also argues that Chapter 62 of the North Carolina General Statutes does not authorize the Utility Commission to require submission of contracts with wholesale purchasers prior to execution.\nPursuant to section 62-30 of the North Carolina General Statutes:\nThe Commission shall have and exercise such general power and authority to supervise and control the public utilities of the State as may be necessary to carry out the laws providing for their regulation, and all such other powers and duties as may be necessary or incident to the proper discharge of its duties.\nN.C. Gen. Stat. \u00a7 62-30 (2003). The Utility Commission is also \u201cvested with all power necessary to require and compel any public utility to provide and furnish to the citizens of this State reasonable service of the kind it undertakes[.]\u201d N.C. Gen. Stat. \u00a7 62-32(b) (2003) (emphasis added).\nOur Supreme Court stated that the Utility Commission\u2019s purpose of this regulation, \u201cwas to provide a mechanism through which NCUC meaningfully could enforce the requirement \u2018that CP&L\u2019s retail native load customers receive priority with respect to, and the benefits from, CP&L\u2019s existing generation and that CP&L\u2019s wholesale activities not disadvantage its retail ratepayers from either a quality of service or rate perspective[,]\u2019 \u201d and it could \u201c \u2018take appropriate action ... to secure and protect reliable service to retail customers in North Carolina.\u2019 \u201d Carolina Power & Light Co., 359 N.C. at 519-21, 614 S.E.2d at 284. As sections 62-30 and 62-32(b) of the North Carolina General Statutes give the Utility Commission \u201call powers necessary\u201d to regulate public utilities to ensure the citizens of this State are provided with reasonable service, the instant regulation is authorized by sections 62-30 and 62-32(b) because the regulation\u2019s purpose is to ensure the supply of electricity to retail customers. Accordingly, we affirm the Utility Commission\u2019s orders as it has the statutory authority to require advance submission of wholesale contracts.\nFinally, Appellants argue that the Utility Commission erred by failing to provide guidance by which it would assess the reasonableness of the agreements. In its order denying reconsideration of its 10 July order, the Utility Commission stated that the \u201cOrder was only intended to address the matter of jurisdiction since that is a threshold issue. It is not appropriate for this Order to try to specify exactly how the Commission will exercise its jurisdiction or what the Commission might do in a particular case.\u201d We hold that the Utility Commission was simply reserving this issue for later determination after the threshold issue of jurisdiction had been decided.\nAppellants cite to section 62-79(a)(2) of the North Carolina General Statutes to support their argument that the Commission needed to give further guidance. Section 62-79(a)(2) provides:\n(a) All final orders and decisions of the Commission shall be sufficient in detail to enable the court on appeal to determine the controverted questions presented in the proceedings and shall include:\n(2) The appropriate rule, order, sanction, relief or statement of denial thereof.\nN.C. Gen. Stat. \u00a7 62-79(a) (2003) (emphasis added). The Commission\u2019s order is sufficient to allow this Court to determine the issues of jurisdiction, i.e. violation of the commerce clause, supremacy of federal law, and statutory authorization, as previously stated. Accordingly, we affirm the Commission\u2019s orders.\nAffirmed.\nJudge LEVINSON concurs.\nJudge TYSON dissents.\n. Appellants cite to City of Philadelphia v. New Jersey, 437 U.S. 617, 57 L. Ed. 2d 475 (1978), to support its argument that the regulation impermissibly burdens interstate commerce. But City of Philadelphia involved a New Jersey statute that was facially discriminatory. Id. at 628, 57 L. Ed. 2d at 484. In this case, the regulation is not discriminatory, merely burdensome, because the regulation applies equally to wholesale contracts in and out of state. As this regulation is not discriminatory, City of Philadelphia is inapplicable.", "type": "majority", "author": "WYNN, Judge." }, { "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion addresses the issues of whether the regulation violates the Commerce Clause of the United States Constitution and Chapter 62 of the North Carolina General Statutes and affirms the Commission\u2019s order without determining the effect of the regulation on interstate commerce. The record before us is insufficient to make that determination. This case should be remanded to the Commission. I respectfully dissent.\nI. The Commerce Clause\nAppellants contend the scope of the Commission\u2019s jurisdiction over wholesale power contracts is an impermissible burden on interstate commerce in violation of the Commerce Clause of the United States Constitution.\nArticle I, Section 8, Clause 3 of the United States Constitution confers on Congress the power to \u201cregulate Commerce ... among the several States[.]\u201d The Commerce Clause \u201chas long been seen as a limitation on state regulatory powers, as well as an affirmative grant of congressional authority.\u201d Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 133 L. Ed. 2d 796, 804 (1996) (citation omitted). The United States Supreme Court has \u201cidentified two modes of analysis to evaluate state statutes under the Commerce Clause. The Court will consider the statute invalid without further inquiry when it \u2018directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests.\u2019 \u201d Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 762-63, 131 L. Ed. 2d 820, 832-33 (1995) (quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 90 L. Ed. 2d 552, 559 (1986)). Where a state statute regulates evenhandedly and only indirectly effects interstate commerce, \u201cit will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.\u201d Pike v. Bruce Church, 397 U.S. 137, 142, 25 L. Ed. 2d 174, 178 (1970) (citation omitted). In either case, \u201cthe critical consideration is the overall effect of the statute on both local and interstate activity.\u201d Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 90 L. Ed. 2d 552, 560 (1986) (emphasis supplied).\nIt is established beyond peradventure that \u201clegislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality . ...\u201d A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.\nHodel v. Indiana, 452 U.S. 314, 323-24, 69 L. Ed. 2d 40, 50 (1981) (internal citations and quotations omitted).\nThe production and sale of electric energy is an article of trade within the bounds of Commerce Clause protection. See New England Power Co. v. New Hampshire, 455 U.S. 331, 71 L. Ed. 2d 188 (1982) (applying a Commerce Clause analysis to a regulation restricts ing the transportation of privately produced electricity in interstate commerce). \u201cA State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.\u201d Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10-11, 73 L. Ed. 147, 153 (1928) (citations omitted).\nRegulatory Condition 21 requires that an utility shall not enter into a contract for the wholesale purchase of electric energy at native load capacity without first giving the Commission and the Public Staff written notice twenty days prior to execution of the contract. The Commission\u2019s justification for the prior submission requirement was to \u201cprovide a mechanism through which NCUC meaningfully could enforce the requirement \u2018that CP&L\u2019s retail native load customers receive priority with respect to, and the benefits from, CP&L\u2019s existing generation and that CP&L\u2019s wholesale activities not disadvantage its retail ratepayers from either a quality of service or rate perspective.\u2019 \u201d State ex rel. Utils. Comm\u2019n v. Carolina Power & Light Co., 359 N.C. 516, 519, 614 S.E.2d 281, 284 (2005). The Commission concluded it has the authority \u201cto take appropriate action if necessary to secure and protect reliable service to retail customers in North Carolina.\u201d The Commission failed to provide any guidelines by which it would assess the reasonableness of the agreements over which it has claimed jurisdiction. The Commission has not yet defined what constitutes \u201cappropriate action,\u201d or to set forth the factors it will use to determine whether the proposed \u201caction\u201d is \u201cappropriate,\u201d or what remedial measures the Commission may assert.\nWithout the Commission setting forth any guidelines it will follow in reviewing a wholesale contract, this Court is unable to determine the local and overall effects or benefits arising from the regulation to conduct a meaningful analysis under the Commerce Clause. Brown-Forman Distillers Corp., 476 U.S. at 579, 90 L. Ed. 2d at 560 (the court must consider the overall effect of the statute on local and interstate activity). This Court cannot determine whether the burden on interstate commerce arising from the regulation \u201cis clearly excessive\u201d in relation to the local benefits it affords. Pike, 397 U.S. at 142, 25 L. Ed. 2d at 178.\nThe Commission has not issued any guidance to provide notice to or assist the parties in negotiating terms or provisions of contracts in advance of its required twenty-day prior submission of proposals. In State ex rel. Util. Comm\u2019n v. Carolina Water Service, Inc., our Supreme Court stated:\nThis Court has stressed in the past how important it is that the Commission \u201center final orders that are sufficient in detail to enable this Court on appeal to determine the controverted issues . . . Failure to include all necessary findings of fact and details is an error of law and a basis for remand under N.C.G.S. \u00a7 62~94(b)(4) because it frustrates appellate review.\u201d\n335 N.C. 493, 501-02, 439 S.E.2d 127, 132 (1994) (emphasis supplied) (quoting State ex rel. Utilities Comm. v. AT&T Communications, 321 N.C. 586, 588, 364 S.E.2d 386, 387 (1988)). I vote to remand this issue to the Commission for findings of fact and to develop a record setting forth the factors and guidelines the Commission will employ once it receives a proposed wholesale power contract and any constitutionally permissible \u201cappropriate action\u201d it may take.\nII. Chanter 62\nAppellants next contend that Chapter 62 of the North Carolina General Statutes does not authorize the Commission to require the submission of contracts with wholesale purchasers for regulation prior to execution. Our Supreme Court held that the Commission\u2019s jurisdiction is not preempted by the Supremacy Clause of the United States Constitution. U.S. Const. art. VI, cl. 2.; State ex rel. Utils. Comm\u2019n v. Carolina Power & Light Co., 359 N.C. at 529, 614 S.E.2d at 290.\nThe General Assembly has delegated to the Commission the \u201cauthority to supervise and control the public utilities of the State as may be necessary to carry out the laws providing for their regulation . . . .\u201d N.C. Gen. Stat. \u00a7 62-30 (2003). The Commission is also \u201cvested with all power necessary to require and compel any public utility to provide and furnish to the citizens of this State reasonable service of the kind it undertakes to furnish and fix and regulate the reasonable rates and charges to be made for such service.\u201d N.C. Gen. Stat. \u00a7 62-32(b) (2003).\nThe reason for strict regulation of public utilities is that they are either monopolies by nature or given the security of monopolistic authority for better service to the public. The public is best served in many circumstances where destructive competition has been removed and the utility is a regulated monopoly.\nUtilities Comm. v. Coach and Utilities Comm. v. Greyhound Corp., 260 N.C. 43, 51, 132 S.E.2d 249, 254 (1963). Retail customers totally depend upon their franchised electric utility for reliable electric service. As such, the Commission has the duty to set reasonable rates and the authority to compel utility companies to render adequate and reliable service. Utilities Comm. v. Edmisten, 294 N.C. 598, 605, 242 S.E.2d 862, 867 (1978) (citation omitted). The Commission has asserted:\nit has jurisdiction and authority under State law to review, before they are signed, proposed wholesale contracts by a regulated North Carolina public utility granting native load priority to be supplied from the same plant as r\u00e9tail ratepayers and to take appropriate action if necessary to secure and protect reliable service to retail customers in North Carolina.\nThe Commission presented no indication of or guidance to the parties through rule making or regulation how it intends to apply its asserted statutory authority to review a proposed interstate wholesale contract prior to its execution by the parties. The Commission has not set forth the options or powers it asserts to have upon reviewing these contracts or remedies it may assert, other than the power to \u201ctake appropriate action.\u201d\nBecause the Commission failed to provide the parties any procedure or guidelines to show what the Commission will or will not do in light of a proposed contract, this Court is unable on this record to determine whether the regulation at issue is within the Commission\u2019s statutory authority under Chapter 62.\nIn its order initiating the investigation and requesting comments, the Commission noted the \u201csharp disagreement among the parties\u201d regarding the extent of the Commission\u2019s jurisdiction. The Commission requested the parties file briefs arguing their positions on the extent of the Commission\u2019s jurisdiction over regulated utilities signing wholesale interstate contracts at native load priority. The Commission also requested the parties submit a list of issues appropriate for further comment for review by the Commission.\nAs stated in the brief submitted by the North Carolina Attorney General, \u201cthe Commission has not failed to give the utilities specifics about how it intends to review and assess a grant of native load priority and its possible effects on retail customers. It simply has not gotten to that stage in this proceeding.\u201d Because the Commission has not \u201cgotten to that stage in this proceeding,\u201d this Court is unable to review any guidelines or procedures the Commission may employ in reviewing a wholesale contract to determine the effect the Commission\u2019s actions may have on interstate commerce, or whether the regulation as applied on any \u201cappropriate action\u201d taken is an impermissible burden on interstate commerce.\nWithout guidance the utilities may rely upon in negotiating with potential interstate purchasers, public electric utilities doing business in North Carolina are left at a competitive disadvantage to electric utilities of other states. Without knowing the guidelines and procedures the Commission will employ in reviewing potential wholesale energy contracts, we are unable on this record to decide either the effects or burdens on interstate commerce or whether the Commission\u2019s prior review requirement or asserted \u201cappropriate action\u201d rests within its statutory powers.\nI vote to remand this issue to the Commission for findings of fact and to develop a record setting forth the guidelines and procedures the Commission intends to employ upon the receipt and review of potential wholesale energy contracts and the nature and extent of the constitutionally permissible \u201cappropriate action\u201d it may take.\nHI. Conclusion\nWithout any guidelines or procedures the Commission intends to employ in reviewing a contract or the \u201cappropriate action\u201d it may take, this Court is unable to address the effect of the Commission\u2019s action on interstate commerce or to determine whether the Commission has acted within its statutory powers.\nWhile the \u201cpurpose\u201d of the prior review regulation may be laudable, our analysis must be on the \u201ceffect\u201d on interstate commerce of the Commission\u2019s actions and whether the Commission\u2019s actions are permitted under its statutory powers. I agree with the State Attorney General\u2019s argument that the jurisdictional and preemption issues have been settled. This case should be remanded to the Commission for findings of fact and for developing a record consistent with the constitutional limits of the Commerce Clause, United States Constitution, Article I, Section 8, Clause 3, and its statutory powers under North Carolina General Statutes, Chapter 62. The attempt by the majority\u2019s opinion to adjudicate and affirm these issues in the absence of an adequate record and absence of the required Commerce Clause effects analysis is error. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge," } ], "attorneys": [ "Public Staff Executive Director Robert P. Gruber and Chief Counsel Antoinette R. Wike, by Gisele L. Rankin, Staff Attorney, for appellee North Carolina Utilities Commission.", "Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the Attorney General.", "West Law Offices, PC., by James P. West, for appellee Carolina Utility Customers Association, Inc.", "Bailey & Dixon, L.L.P., by Ralph McDonald, for appellee Carolina Industrial Groups for Fair Utility Rates II.", "Poyner & Spruill LLP, by Michael S. Colo, Thomas R. West, and Pamela A. Scott, for appellees North Carolina Municipal Power Agency Number 1 and North Carolina Eastern Municipal Power Agency, Inc.", "Hunton & Williams, by Edward S. Finley, Jr., for appellants.", "Len S. Anthony, for appellants Carolina Power & Light and Progress Energy.", "William Larry Porter and Kodwo Ghartey-Tagoe, for appellant Duke Power Company.", "Robert B. Schwentker and Thomas K. Austin, for appellant North Carolina Electric Membership Corporation." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION, PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION, ATTORNEY GENERAL, ROY COOPER, CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC., CAROLINA INDUSTRIAL GROUPS FOR FAIR UTILITY RATES I AND II, VIRGINIA ELECTRIC AND POWER COMPANY d/b/a NORTH CAROLINA POWER, NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1 and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY, INC., Appellees v. CAROLINA POWER & LIGHT COMPANY, DUKE POWER COMPANY, and NORTH CAROLINA ELECTRIC MEMBERSHIP CORPORATION, Appellants\nNo. COA02-1737-2\n(Filed 6 December 2005)\n1. Utilities\u2014 wholesale interstate power contracts \u2014 regulation \u2014 not discriminatory\nA regulation requiring notice to the Utilities Commission of wholesale interstate energy contracts was merely burdensome on interstate commerce, and not discriminatory, because it applied equally to wholesale contracts in and out of state. The regulation should therefore be evaluated for whether its effect on interstate commerce is clearly excessive in relationship to putative local benefits.\n2. Utilities\u2014 wholesale interstate power contracts \u2014 regulation not overly burdensome\nA utilities regulation requiring notice to the Utilities Commission of interstate contracts for wholesaling electric energy is not overly burdensome to interstate commerce because the local benefit (ensuring the supply of electricity to retail customers) outweighs the interstate burden.\n3. Utilities\u2014 wholesale interstate power contracts \u2014 authority of Commission to regulate\nThe Utilities Commission has the authority under N.C.G.S. \u00a7 62-30 and N.C.G.S. \u00a7 62-32(b) to require advance submission of wholesale interstate power contracts. The statutes give the Utilities Commission \u201call powers\u201d necessary to regulate public utilities to ensure that the citizens of North Carolina are provided reasonable service.\n4. Utilities\u2014 wholesale power contracts \u2014 Commission order\u2014 sufficient for determination of issues\nA Utilities Commission order concerning wholesale interstate power contracts was sufficient to allow the Court of Appeals to determine the controverted issues.\nJudge Tyson dissenting.\nAppeal by Appellants from orders entered 10 July 2002 and 20 August 2002 by the North Carolina Utilities Commission. Heard in the Court of Appeals 16 September 2003. A divided panel of this Court vacated and dismissed with prejudice the orders of the Commission under the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, by opinion filed 18 November 2003. See State ex rel. Utils. Comm\u2019n v. Carolina Power & Light Co., 161 N.C. App. 199, 588 S.E.2d 77 (2003) (Wynn, J. dissenting). The North Carolina Supreme Court reversed this Court and, by opinion filed 1 July 2005, remanded to this Court for \u201cconsideration of the remaining\u201d assignments of error. See State ex rel. Utils. Comm\u2019n v. Carolina Power & Light Co., 359 N.C. 516, 614 S.E.2d 281 (2005).\nPublic Staff Executive Director Robert P. Gruber and Chief Counsel Antoinette R. Wike, by Gisele L. Rankin, Staff Attorney, for appellee North Carolina Utilities Commission.\nAttorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the Attorney General.\nWest Law Offices, PC., by James P. West, for appellee Carolina Utility Customers Association, Inc.\nBailey & Dixon, L.L.P., by Ralph McDonald, for appellee Carolina Industrial Groups for Fair Utility Rates II.\nPoyner & Spruill LLP, by Michael S. Colo, Thomas R. West, and Pamela A. Scott, for appellees North Carolina Municipal Power Agency Number 1 and North Carolina Eastern Municipal Power Agency, Inc.\nHunton & Williams, by Edward S. Finley, Jr., for appellants.\nLen S. Anthony, for appellants Carolina Power & Light and Progress Energy.\nWilliam Larry Porter and Kodwo Ghartey-Tagoe, for appellant Duke Power Company.\nRobert B. Schwentker and Thomas K. Austin, for appellant North Carolina Electric Membership Corporation." }, "file_name": "0681-01", "first_page_order": 711, "last_page_order": 721 }