An Orange County town seeks to unravel North Carolina’s utilities regulation system with its climate lawsuit against Duke Energy. That’s the key point in Duke’s latest state Business Court filing in its legal battle with Carrboro.
The town seeks money damages for the alleged negative impact of Duke Energy’s climate policies on town finances.
Carrboro’s chief concern “is with how Duke Energy and its subsidiaries generate electricity for their customers,” Duke’s lawyers wrote in a brief Monday supporting a motion to dismiss the lawsuit. “Carrboro would change the generation fuel mix used over the past fifty-plus years to result in lower carbon emissions.”
“But Carrboro’s arguments ignore that the regulatory framework for public electric utilities in North Carolina dictates the policies and considerations that drive generation fuel mix decisions, all of which are approved by the state utilities commissions,” Duke Energy’s court filing continued. “Duke Energy does not unilaterally select its generation fuel mix; rather, that mix is expressly approved by state utilities commissions under the policy direction of legislators and the Governor. Further, the public and intervenors are permitted to and have, in fact, provided input over time on these decisions.”
“Carrboro’s lawsuit seeks to upend that framework and impermissibly pursue Carrboro’s broad policy goals through tort litigation,” Duke’s lawyers wrote. “By seeking to penalize Duke Energy for damages that allegedly arose because of those generation fuel mix choices and resulting emissions, Carrboro asks this Court to second guess the power generation decisions made by legislative and regulatory bodies in North Carolina and similarly in each state where Duke Energy subsidiaries serve customers.”
“Carrboro’s authority is subject to statutory limits and does not permit it to second guess generation fuel mix decisions determined by regulatory authorities,” the brief added.
The “only path” to Carrboro’s alleged damages is based on “interstate and cumulative global emissions,” Duke lawyers wrote. “Courts ‘across the country’ have found that a state cannot apply its law to claims adjudicating interstate greenhouse gas emissions. Here, there is no untangling Duke Energy’s emissions from greenhouse gas emissions emitted and regulated beyond North Carolina’s borders.”
Duke Energy has filed two separate motions to dismiss the case. Carrboro responded on May 1 to the original motion.
The utility is asking the court to “dismiss claims that were never asserted” in the town’s lawsuit, Carrboro’s lawyers wrote. “Attempting to recast the allegations of the Complaint into a lawsuit that Carrboro has not actually pled, Duke urges the Court to dismiss this action as nonjusticiable. But the Court could conclude that this case is nonjusticiable only by ignoring Carrboro’s actual Complaint and instead relying on Duke’s inaccurate characterizations of the case Carrboro actually filed.”
“Here, Carrboro seeks monetary damages (and only monetary damages) for the concrete economic losses flowing from Duke’s deception campaigns,” Carrboro’s lawyers argued.
“Contrary to Duke’s assertions otherwise, resolution of this action does not require that the Court regulate, or even address, Duke’s emissions. Carrboro does not seek an injunction to reduce Duke’s emissions or fossil-fuel sales. In short, Carrboro’s Complaint is not regulatory in nature — to the contrary, it is premised upon well-established tort principles commonly adjudicated by this Court,” the court filing added.
“Fundamentally, Duke’s Motion should be denied because there is no legislative or regulatory body that has authorized deceptions or insulated a tortfeasor, such as Duke, from liability for its deceptive business practices,” Carrboro’s lawyers argued.
Carrboro filed suit in December 2024. The town is working with the left-of-center activist group NC WARN, which is funding the litigation.
Duke Energy filed paperwork in January to move the case from Orange County Superior Court to the Business Court.
The post Duke: Carrboro climate suit seeks to ‘upend’ state utilities regulation first appeared on Carolina Journal.