Emergency Energy Program

Subject:

Requested By: Brian Flattery Director, Energy Division Department of Commerce

Question: (1)

After declaring an "energy crisis" pursuant to G.S. 113B-20, and implementing the Emergency Energy Program, pursuant to G.S. 113B-23, does the Governor have the authority to order the Public Utilities Commission and other State agencies to implement the Emergency Energy Program?

(2)

Does the Governor have the authority to create the procedures for appeal from administrative decisions made pursuant to the Emergency Energy Program?

Conclusion: (1)

Yes.

(2)

Yes.

Under Article III, § 5(4) of the North Carolina Constitution, the Governor shall take care that the laws be faithfully executed. The General Assembly enacted the North Carolina Energy Policy Act of 1975 (Chapter 113B of the General Statutes) which became effective on July 1, 1975. The General Assembly’s findings and purpose of the Energy Policy Act are contained in G.S. 113B-1 and include: "(1) Energy is essential to the health, safety and welfare of the people of this State and to the workings of the State economy, . . . (3) It is the responsibility of State government to encourage a reliable and adequate supply of energy for North Carolina at a level consistent with such energy needs required for the protection of public health and safety, and for the promotion of the general welfare, . . . and (5) It is the expressed intent of this Chapter to provide for development of such a unified energy policy for the State of North Carolina."

The Legislature then created an Energy Policy Council to advise and make recommendations on energy policy to the Governor and to the General Assembly (G.S. 113B-2). Under the provisions of G.S. 113B-9, the Energy Policy Council shall develop contingency and emergency plans, to deal with possible shortages of energy to protect public health, safety, and welfare. After conducting a public hearing and investigation and review of plans submitted pursuant to G.S. 113B-9, the Energy Policy Council shall approve and recommend to the Governor guidelines for emergency curtailment to be known as the Emergency Energy Program, which shall be implemented upon adoption by the Governor after the declaration of an emergency crisis and pursuant to G.S. 113B-20 and 113B-23 (G.S. 113B-9(e)).

The Emergency Energy Program shall provide for the maintenance of essential services, the protection of public health, safety, and welfare, and the maintenance of a sound basic State economy. Provisions also shall be made in the Emergency Energy Program to differentiate curtailment energy consumption by users and shall include a variety of strategies and staged conservation measures of increasing authority to reduce energy use during an emergency energy crisis and criteria for allocation of energy sources to priority users (G.S. 113b-9(f)). Under the provisions of G.S. 113B-9(h), the Emergency Energy Program shall contain proposals for implementation and shall include procedures, rules, and regulations; agency administration responsibilities for implementation; and, procedures for fair and equitable review of complaints and requests for special exemptions.

The definition and declaration of "energy crisis" is contained in G.S. 113B-20 and states that "an energy crisis exists when the health, welfare or safety of the citizens of North Carolina are threatened by reason of an actual or pending acute shortage in usable, necessary energy resources." Upon such a finding, the Governor may declare the existence of an energy crisis (G.S. 113B-20(b)).

Upon the declaration of an energy crisis, the Governor shall submit to the Legislative Committee on Energy Crisis Management, for its prompt consideration, such emergency executive orders, rules, and regulations as the Governor deems necessary to alleviate the effects of the energy crisis

(G.S. 113B-22(a)). The Legislative Committee can approve, amend, or rescind the Governor’s proposals. If the Legislative Committee fails to act within 48 hours, the Governor’s orders, rules, or regulations become effective as promulgated by the Governor (G.S. 113B-22(b) and (c)). These orders shall remain in effect for up to 30 days unless renewed by the affirmative action of the Legislative Committee (G.S. 113B-22(c)). The Governor’s orders, rules, and regulations (subject to the review of the Legislative Committee) include, but are not limited to, establishment of programs, controls, standards, priorities, and quotas for the allocation, conservation, and consumption of energy resources (G.S. 113B-22(d)).

Provisions for the administration of the Emergency Energy Program and procedures incident thereto are located in G.S. 113B-23. Upon the declaration of an emergency energy crisis and upon the approval of the Legislative Committee, the Governor "shall order, the Energy Policy Council, the Utilities Commission, the Attorney General and other appropriate State and local agencies to implement and enforce the Emergency Energy Program. . . ." The Attorney General and State and local law enforcement agencies shall enforce these provisions (G.S. 113B-24).

The clear import of this legislation is that the Governor, with legislative oversight by the Legislative Committee, has been granted broad emergency powers to deal with an energy crisis. Upon the declaration by the Governor of an "energy crisis" pursuant to G.S. 113B-20, the Governor is given broad emergency power to order the Public Utilities Commission and all State and local agencies to implement emergency measures to protect the public health, safety, and welfare and to maintain a sound basic State economy. These emergency powers include the power to order power allocations and curtailments. The Governor is also vested with the authority to promulgate, as a portion of the Emergency Energy Program, the procedures for administrative review of complaints and requests for special exemptions.

The powers of the Governor contained in this statute are very specific and override other general regulatory legislation, e.g., public utilities law. These powers are analagous to the Governor’s emergency war powers under G.S. 147.33.2. However, the powers are subject to legislative oversight by the Legislative Committee on Energy Crisis Management. They are also limited in duration to 30 days unless renewed by affirmative action of the Legislative Committee. Therefore, the Governor has broad authority to order the Public Utilities and other State agencies to implement the Emergency Energy Program and to create procedures for appeal from administrative decisions made pursuant to the Emergency Energy Program.

Rufus L. Emisten Attorney General

Thomas F. Moffitt Associate Attorney General