State of North Carolina ex rel. Utilities Commission v. Wardlaw

634 S.E.2d 898, 179 N.C. App. 582, 2006 N.C. App. LEXIS 2041
CourtCourt of Appeals of North Carolina
DecidedOctober 3, 2006
DocketNo. COA05-1481.
StatusPublished
Cited by3 cases

This text of 634 S.E.2d 898 (State of North Carolina ex rel. Utilities Commission v. Wardlaw) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of North Carolina ex rel. Utilities Commission v. Wardlaw, 634 S.E.2d 898, 179 N.C. App. 582, 2006 N.C. App. LEXIS 2041 (N.C. Ct. App. 2006).

Opinion

TYSON, Judge.

John W. Wardlaw, Jr., Martha C.W. Stuhmer, Thomas F. Roberts, Jr., John P. Medlin, Frank B. Medlin, Westchase Investors, L.L.C., CB Westchase, Inc., R. Michael Condrey, Joseph H. Levinson, Theodosia Louise Levinson, William T. Sanders, James R. Levinson, Ginger T. Levinson, Joseph Lee Levinson, Ann Levinson Munday, Carl B. Munday, Nancy L. Eason, Frank E. Eason, Campbell University, Incorporated, Susan Jones Dreher, James Dreher, Walton David Parker, Jr., and Lois C. Parker ("intervenors") appeal from the North Carolina Utilities Commission's (the "Commission") order granting Progress Energy Carolinas, Inc. ("Progress Energy") a Certificate of Environmental Compatibility and Public Convenience and Necessity. We affirm the Commission's order.

I. Background

On 23 July 2004, Progress Energy applied to obtain a Certificate of Environmental Compatibility and Public Convenience and Necessity to construct approximately 4.3 miles of 230 kilovolt transmission line in Wake County pursuant to N.C. Gen.Stat. § 62-100 and Rule 8-62 of the Rules and Regulations of the Commission. The proposed transmission line was required to energize a new distribution substation to be constructed by Progress Energy on Trenton Road in Cary, North Carolina. A document identified as "Routing Study and Environmental Report for the Trenton Road Transmission Line Tap Project" ("routing study") was prepared to determine the best path to route the new line. The routing study identified 109 possible alternate routes for the line to energize the substation. Progress Energy conducted private meetings with public officials and meetings with the general public to evaluate the suitability of the alternate routes. The public's input was considered to select the rating categories and relative weights to be assigned to the categories. Progress Energy selected the route with the fourth best cumulative rating score.

The Commission scheduled a public hearing on 9 November 2004. Intervenors petitioned to intervene on 29 October 2004. The Commission granted intervenors' petition on 3 November 2004 and issued its order granting Progress Energy's request on 8 April 2005. Intervenors appeal.

II. Issues

Intervenors argue the Commission erred by: (1) approving the final "preferred route" recommended by Progress Energy; (2) giving favorable consideration to the Progress Energy routing study; (3) relying on the alleged future needs of the North Carolina State University's School of Veterinary Medicine in approving Progress Energy's preferred route; (4) placing the burden of proof on intervenors to show one or more of the alternate route corridors was superior over Progress Energy's preferred route and to show Progress Energy could access the alternate route corridors; and (5) issuing the order approving the preferred route, which is arbitrary and capricious.

III. Standard of Review

N.C. Gen.Stat. § 62-105(a) (2005) mandates:

The Commission shall grant a certificate for the construction, operation, and maintenance of the proposed transmission line if it finds:

(1) That the proposed transmission line is necessary to satisfy the reasonable needs of the public for an adequate and reliable supply of electric energy;

(2) That, when compared with reasonable alternative courses of action, construction of the transmission line in the proposed location is reasonable, preferred, and in the public interest;

(3) That the costs associated with the proposed transmission line are reasonable;

*900(4) That the impact the proposed transmission line will have on the environment is justified considering the state of available technology, the nature and economics of the various alternatives, and other material considerations; and

(5) That the environmental compatibility, public convenience, and necessity require the transmission line.

N.C. Gen.Stat. § 62-94 (2005) provides the standard of review for this Court:

The court may affirm or reverse the decision of the Commission, declare the same null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission's findings, inferences, conclusions or decisions are:

(1) In violation of constitutional provisions, or

(2) In excess of statutory authority or jurisdiction of the Commission, or

(3) Made upon unlawful proceedings, or

(4) Affected by other errors of law, or

(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or

(6) Arbitrary or capricious.

(C) In making the foregoing determinations, the court shall review the whole record or such portions thereof as may be cited by any party and due account shall be taken of the rule of prejudicial error. The appellant shall not be permitted to rely upon any grounds for relief on appeal which were not set forth specifically in his notice of appeal filed with the Commission.

Over twenty-five years ago, this Court stated:

[T]he Commission's order [should] be affirmed if, upon consideration of the whole record as submitted, the facts found by the Commission are supported by competent, material and substantial evidence, taking into account any contradictory evidence or evidence from which conflicting inferences could be drawn. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

. . . .

In the review of orders from the Commission by this Court, our action is guided by N.C.G.S. 62-94, and where the Commission's actions do not violate the Constitution or exceed statutory authority, appellate review is limited to errors of law, arbitrary action, or decisions unsupported by competent, material and substantial evidence. We look to the findings of fact and conclusions of the Commission and determine whether the Commission has considered the factors required by law and whether its findings are supported by competent, substantial and material evidence in view of the whole record.

Utilities Comm. v. Springdale Estates Assoc., 46 N.C.App. 488, 490-91, 265 S.E.2d 647, 649-50 (1980) (internal quotations and citations omitted).

Ten years ago, this Court stated, "When applying the whole record test, the court may not replace the Commission's judgment with its own when there are two reasonably conflicting views of the evidence." State ex rel. Utilities Com'n v. Public Staff-North Carolina Utilities Com'n, 123 N.C.App. 43, 46, 472 S.E.2d 193, 196 (1996).

IV.

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Related

State Ex Rel. Utilities Commission v. TOWN OF KILL DEVIL HILLS
670 S.E.2d 341 (Court of Appeals of North Carolina, 2009)
State v. Wardlaw
640 S.E.2d 60 (Supreme Court of North Carolina, 2006)

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634 S.E.2d 898, 179 N.C. App. 582, 2006 N.C. App. LEXIS 2041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-north-carolina-ex-rel-utilities-commission-v-wardlaw-ncctapp-2006.