N.C. Utilities Commission and the separation of powers

April 15th, 2023

Good morning.

Thank you for spending some time with us this Saturday. 

Children learn in grade school that the legislative branch makes laws and the executive branch implements them. One can imagine a fourth-grade quiz instructing a student to “define checks and balances.”

But childhood’s clarity eventually gives way to reality’s haze. And in reality, separation of powers is a near-constant battlefield, with executive and legislative branches firing on one another like it’s Flanders in 1914.

The proper response on the fourth-grade quiz: “Checks and balances are in the eye of the beholder.”

The latest salvo is Senate Bill 512, “Greater Accountability for Boards/Commissions.” The measure would reduce the number of gubernatorial appointees on nine board and commissions and replace them, in part, with appointees selected by the General Assembly.

To some, it’s a power grab. To others, it adds balance to bodies that often decide policy that impacts every North Carolinian.


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Of the nine boards and commissions impacted by Senate Bill 512, the Utilities Commission is the most impactful.

In 2021, the General Assembly passed and Gov. Roy Cooper signed House Bill 951, a landmark law to determine the state’s future energy mix.

The measure put into statute Cooper’s Clean Energy Plan, which called for a 70% reduction in carbon dioxide emissions from energy plants by 2030, and carbon neutrality in those plants by 2050. In exchange, House Bill 951 mandated that energy suppliers realize those reductions with an energy mix that’s least cost and maintains current reliability.

But it’s the North Carolina Utilities Commission, not the legislature, that has the final say on what constitutes least cost. How the state produces energy for the next 50 years, then, will be decided by an unelected commission.

So who decides the makeup of the Utilities Commission? Right now, the governor appoints all seven members.

This fact elicited concern from some corners because Cooper has a well-documented personal and professional relationship with renewable energy producers,  solar in particular. 

He previously contracted with solar companies, and his close family members still do.

And during his first term, Cooper suffered through the most serious investigation of his tenure over his apparent decision to withhold a crucial pipeline permit until Duke Energy finalized a rate deal benefiting solar companies.

Cooper famously responded to a text message notifying him of imminent permit approval with, “Where are the solar boys on their deal?” The News & Observer even called for a federal investigation (“there’s enough smoke for an official probe into the NC governor’s pipeline deal”).

Solar energy itself isn’t a bad thing, and it surely belongs in North Carolina’s energy mix. But Cooper’s relationship with the solar industry, and his unilateral appointment power over the Utilities Commission, invites suspicion that the body’s priorities may be compromised.

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Senate Bill 512 would change the Utilities Commission’s makeup, dropping the total number of appointees to five: the State Treasurer, plus two appointees each from the legislature and the governor.

Legislators reckon the Utilities Commission is a quasi-policymaking body, and so it makes good sense for the General Assembly to have some say in its workings. They have a point: It seems unreasonable for legislators to pass a law and then worry whether a commission will implement it faithfully.

But that argument runs counter to the pure definition of separation of powers: The legislature passes laws, and the executive branch implements them. The state Supreme Court affirmed this pure interpretation in McCrory v. Berger, ruling the executive branch must have a majority of appointments to executive branch commissions.

Notable, that Senate Bill 512 designates the treasurer as one of five Utilities Commission appointees: Though not part of the governor’s administration, the treasurer is still part of the executive branch.

But we don’t live in the theoretical word we learned about in fourth grade. We live in a real one. And in the real world, interests adverse to a lawmaking body attempt to thwart action through all available means.

Senate Bill 512 recognizes the world for what it is. The bill abides by the Supreme Court’s executive branch majority directive, but it grants the legislature more authority to ensure its laws are faithfully implemented.

In so doing, Senate Bill 512, if passed into law, will impact how North Carolina produces energy for decades to come.