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Duke Energy, NC WARN in power struggle over the right to sell solar energy — NC Policy Watch

By Lisa Sorg

Faith Community Church lies over the railroad tracks south of downtown Greensboro, an area with few trees to shade it from the sun. That makes for a hot walk in the summertime, but the neighborhood, and specifically, the 11,839-square-foot church and community center, is an ideal place for NC WARN to install a solar energy system on a roof.

“We deeply believe that solar energy is a gift from God from which all can and should benefit,” Faith Community’s Rev. Nelson Johnson and other members of Concerned African-American clergy, wrote to the state legislature in 2015.

But who is allowed to install and charge for that heavenly gift has prompted a protracted legal battle between one of the nation’s largest utilities, Duke Energy, and NC WARN, an environmental nonprofit based in Durham.

Three justices from the North Carolina Court of Appeals heard arguments on the case last week: Donna Stroud, Chris Dillon and Hunter Murphy.

The case, though, carries larger ramifications than just settling a squabble between the utility and its longtime nemesis. If NC WARN prevails, North Carolina could join Georgia and 24 other states in allowing third parties to sell solar power from small rooftop systems, bypassing utilities that hold legal monopolies in those states. However, the market upheaval could compel Duke to raise its rates.

If the court rules in favor of Duke, the utility would retain its unilateral grip on selling even minute amounts of electricity. That effectively holds hostage any small, independent forays into the electricity business.

Lawyers for Duke Energy argued that the very act of selling power transforms NC WARN from a nonprofit into a utility. NC WARN says it’s not in the utility business, but rather, is selling power to the church as part of the system’s lease agreement.

“Is this an arrangement more like a new company coming in and building a power plant and selling the power in your back yard?” says Jonas Monast, co-director of the Center on Climate, Energy Environment & Economics at UNC Chapel Hill. Monast is also an attorney with expertise in utility regulation, but is not involved in the case. “Or is it more like leasing a generator from Home Depot? The court did ask that question.”

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