In April, North Carolina Utilities Commission Chairman William Brawley unilaterally ordered that Duke Energy stop procuring new solar farms.
During oral arguments before the commission Monday in Raleigh, senior attorney Nick Jimenez with the Southern Environmental Law Center said this violates the law because Brawley did so without notice, public hearing or evidence. As a result, Duke Energy could fall behind on its solar energy goals for 2031.
“I think you have a lot of authority. And I think that’s important. But I also think the guardrails on it are important,” Jimenez said to the commission.
Duke can’t resume solar procurements until the commission makes a final decision on Duke’s Carbon Plan.
Duke Energy punts on solar
In 2024, state regulators ordered Duke Energy to try to procure 3,460 megawatts of new utility-scale solar energy by 2031. This would significantly increase Duke’s solar capacity — for scale, 5,120 megawatts of solar were connected to the grid at the start of this year.
The order gave the utility two years to request proposals and select the projects that would achieve this goal. After last year’s selection process, 1,760 megawatts’ worth of solar energy remained.
But when Duke Energy filed its proposal in March, it only planned to procure 770 megawatts of new solar resources. The company said that expiring solar tax credits, increased costs and the removal of North Carolina’s interim climate target led it to pursue fewer megawatts of new solar energy. The cost of building new solar did increase, but so, too, did the costs of most other forms of energy generation. Utility-scale solar remains cheaper per unit of energy than fossil fuel-fired plants, according to the most recent levelized cost of energy report.
Jimenez said that, ideally, Duke Energy executives would have alerted state regulators to their plans to propose a lower solar procurement target when they filed their Carbon Plan proposal last fall. Now, clean energy advocates say Duke Energy risks running out of time to conduct the interconnection study necessary to stay on track for its 2031 target.
The legislature acts, the commission reacts
Attorney Christina Cress, representing the industrial trade group Carolina Industrial Group for Fair Utility Rates, defended the commission’s decision. She said that Brawley’s order wasn’t unprecedented, as the commission had issued similar orders following the actions of the North Carolina General Assembly. For example, after then-Gov. Roy Cooper signed House Bill 951 in 2021, the Utilities Commission issued an order beginning the Carbon Plan proceedings.
The General Assembly passed Senate Bill 266 last summer, eliminating North Carolina’s interim carbon pollution reduction target, which required Duke Energy to reduce its greenhouse gas emissions below 70% of its 2005 levels by 2030. Cress said this represented a significant enough change that the Utilities Commission could pause Duke Energy’s solar energy acquisition while ongoing Carbon Plan proceedings reconciled this new law.
“That puts ratepayers potentially at risk of paying for resources that may no longer be the least cost or most economical resources selected by the capacity expansion modeling,” Cress said.
Attorney John Burns, who represented the Carolinas Clean Energy Business Association, said in rebuttal that past laws had caused the Utilities Commission to open new proceedings, rather than modifying an ongoing process. This would have allowed Duke Energy to present new evidence for its decision to pursue less solar, given the public a chance to weigh in and allowed experts to debate the proposal before the Utilities Commission amended Duke’s 2031 solar procurement target.
An unexpected order
Clean energy groups — including the Carolinas Clean Energy Business Association, the Southern Alliance for Clean Energy, and the North Carolina Sustainable Energy Association — made the argument that the commission exceeded its authority under the law when it issued an order that contradicted a previous commission order without observing any of the legal guardrails that traditionally precede such a potentially consequential decision.
The Utilities Commissioners didn’t respond to questions or defend the order outright during Monday’s hearing. The April order said that if Duke proposed to course-correct its 2026 solar procurement, it should do so only based on a new, commission-approved Carbon Plan.
Brawley centered the discussion on whether or not he and the broader commission had the authority to delay solar procurements in general. His line of questioning took an odd turn near the two-hour mark when he asked Jimenez whether the law required that the multiyear studies take place before a particular date.
“Is there a legal requirement that the facility study be initiated by November 2027?” Brawley asked. “And if so, what is that specific legal requirement?”
“Maybe I could save us all a little time and say that I'm not going to be able to give you legal requirements for each of these dates,” Jimenez replied.
This response did not deter the commissioner.
“I appreciate the offer, but I think we're going to go through them anyway,” Brawley retorted and resumed his line of questioning, starting with the November 2027 study and working his way backward. Ten queries later — to all of which Jimenez responded “not that I’m aware of” — Brawley concluded his series of questions.
“Again, Chair, I would point out that this does not determine any of the statutory violations that we've alleged and that the commission is here to decide on reconsideration,” Jimenez said.
As it stands, Duke Energy can not solicit bids for new solar projects in North Carolina until the commission approves a new Carbon Plan, which it must do before the end of the year.
Are you interested in commenting on the N.C. Utilities Commission hearings? Even if you miss the public hearing, you can still submit a statement of position on the Utility Commission’s website. You’ll need the relevant docket number for your comment:
- E-2 Sub 1406 & E-7 Sub 1356: These two dockets are nearly identical. They both represent Duke Energy’s request for utility-scale solar and battery proposals.
