When the Governor of North Carolina formally declares an 'energy crisis' under the Energy Policy Act of 1975 and triggers the Emergency Energy Program, does he have the legal authority to compel the Public Utilities Commission and other state agencies to implement the Program's rules and rationing measures, and can he set up his own administrative-appeal procedures for decisions made under the Program?

Plain-English summary

The Director of the Energy Division, Department of Commerce, asked the AG two related questions about the scope of the Governor's emergency powers under the Energy Policy Act of 1975 (Chapter 113B). After declaring an "energy crisis" under G.S. 113B-20 and implementing the Emergency Energy Program under G.S. 113B-23: (1) does the Governor have authority to order the Public Utilities Commission and other state agencies to carry out the Program, and (2) does he have authority to create his own appeal procedures for decisions made under the Program?

The 1978 AG said yes to both.

The opinion walks through the statutory architecture of the Energy Policy Act in detail.

The constitutional anchor. Article III, § 5(4) of the North Carolina Constitution requires the Governor to "take care that the laws be faithfully executed." That constitutional duty is the backdrop for the statutory authority that follows.

The 1975 Energy Policy Act framework. The General Assembly enacted Chapter 113B effective July 1, 1975. G.S. 113B-1 declares the legislative findings: energy is essential to the health, safety, and welfare of North Carolinians and to the State economy; the State has the responsibility to encourage a reliable supply consistent with public health, safety, and welfare; the chapter expresses a unified state energy policy.

The Energy Policy Council and its planning role. G.S. 113B-2 creates an Energy Policy Council to advise on energy policy. G.S. 113B-9 directs the Council to develop contingency and emergency plans for energy shortages. After hearings and review, the Council recommends to the Governor "guidelines for emergency curtailment to be known as the Emergency Energy Program" (G.S. 113B-9(e)). The Program is implemented upon adoption by the Governor following the declaration of an energy crisis under G.S. 113B-20 and 113B-23.

Program content requirements. The Emergency Energy Program must provide for essential services, public health, safety, and welfare protections, and a sound basic state economy (G.S. 113B-9(f)). It must differentiate curtailment by user type, include staged conservation measures of increasing authority, and set criteria for allocating energy sources to priority users. It must contain "proposals for implementation," "agency administration responsibilities for implementation," and "procedures for fair and equitable review of complaints and requests for special exemptions" (G.S. 113B-9(h)).

Declaring the crisis. G.S. 113B-20 defines an "energy crisis" as a threat to "the health, welfare or safety of the citizens of North Carolina" by reason of an actual or pending acute shortage in usable, necessary energy resources. The Governor may declare the existence of such a crisis (G.S. 113B-20(b)).

Legislative oversight. Upon declaration, the Governor submits proposed emergency executive orders, rules, and regulations to the Legislative Committee on Energy Crisis Management for prompt consideration (G.S. 113B-22(a)). The Committee can approve, amend, or rescind the proposals. If the Committee fails to act within 48 hours, the Governor's orders become effective as promulgated (G.S. 113B-22(b)-(c)). The orders remain in effect up to 30 days unless renewed by affirmative Committee action (G.S. 113B-22(c)). The orders can establish "programs, controls, standards, priorities, and quotas for the allocation, conservation, and consumption of energy resources" (G.S. 113B-22(d)).

The Governor's authority to compel agencies. G.S. 113B-23 is the operative provision. On declaration of an energy crisis and approval by 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." G.S. 113B-24 specifically directs the Attorney General and State and local law enforcement agencies to enforce the Program's provisions.

Why this overrides general regulatory law. The AG read G.S. 113B-23 as conferring "very specific" authority that "override[s] other general regulatory legislation, e.g., public utilities law." The Public Utilities Commission's normal autonomy under Chapter 62 yields to the Governor's emergency orders during the energy crisis. The AG drew an analogy to the Governor's emergency war powers under G.S. 147-33.2 to characterize the scope of the energy-crisis authority.

Authority to create appeal procedures. G.S. 113B-9(h) requires the Emergency Energy Program to include "procedures for fair and equitable review of complaints and requests for special exemptions." The Program is what the Governor adopts. The Governor therefore has authority to promulgate the appeal procedures as part of the Program.

The two limits on the emergency authority: legislative oversight by the Committee, and a maximum 30-day duration without renewal.

Currency note

This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Energy Policy Act has been amended over the decades, and North Carolina's emergency management framework has been substantially restructured (including the Emergency Management Act, currently Chapter 166A). The Energy Policy Council has been reorganized multiple times. Anyone evaluating current gubernatorial energy-emergency powers should check current Chapter 113B, current Chapter 166A, and recent executive orders for the operative framework.

Historical context: what the AG concluded

The opinion sits in the late-1970s energy-crisis context, with the lingering effects of the 1973 oil embargo and persistent concerns about natural gas supplies driving state-level emergency planning. The 1975 Energy Policy Act was North Carolina's structural response: a permanent statutory framework that could be activated by a gubernatorial declaration.

The AG's analytical work is straightforward: trace the statutory text, identify the Governor's specific authority, and articulate the override of general regulatory law. The opinion reflects two design choices the General Assembly had made:

Specific override of general law. General regulatory statutes (like the public utilities chapter) operate during normal conditions. The Energy Policy Act gives the Governor authority that displaces those general rules during a declared crisis. This is a familiar pattern in emergency-power statutes: the General Assembly has decided in advance that certain crises justify suspending ordinary regulatory channels in favor of executive coordination.

Legislative oversight with default-on authorization. The Legislative Committee on Energy Crisis Management can approve, amend, or rescind the Governor's orders. But if the Committee does not act within 48 hours, the orders take effect anyway. This is a "negative" oversight mechanism: the legislature retains a kill switch but does not have to affirmatively approve each order before it operates. The 30-day duration cap is the other half of the design: emergency authority sunsets automatically without renewal.

The analogy to G.S. 147-33.2 emergency war powers is rhetorical. The AG is signaling that the energy-crisis authority is broad in scope (similar to war powers), but subject to defined statutory and temporal limits (unlike unconstrained executive emergency action).

For the Energy Division and the Public Utilities Commission in 1978, the takeaway was that the Governor's emergency authority in an energy crisis is real, immediate, and overriding. Utility-level priorities, rate-making considerations, and ordinary regulatory processes give way to the Program's curtailment and allocation directives. Agencies prepare for the possibility by aligning their emergency procedures with the Program's framework in advance.

Common questions

What is an "energy crisis" under North Carolina law?

G.S. 113B-20(a) defines it as a situation in which "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." The Governor declares the crisis under G.S. 113B-20(b).

Can the Governor act unilaterally during an energy crisis?

No. The Governor must submit emergency executive orders, rules, and regulations to the Legislative Committee on Energy Crisis Management. The Committee can approve, amend, or rescind. The orders are effective if the Committee fails to act within 48 hours. The orders sunset at 30 days unless renewed.

Does the Public Utilities Commission retain its normal authority during an energy crisis?

Not entirely. The Governor, acting under G.S. 113B-23, can order the Public Utilities Commission to implement the Emergency Energy Program. The Program's curtailment and allocation rules override the Commission's normal regulatory framework during the crisis.

Can the Governor create his own appeal procedures for Program decisions?

Yes. G.S. 113B-9(h) requires the Emergency Energy Program to contain "procedures for fair and equitable review of complaints and requests for special exemptions." The Governor promulgates the Program, so the Governor sets the appeal procedures as part of it.

How long can emergency orders stay in effect?

Up to 30 days from issuance, unless renewed by affirmative action of the Legislative Committee. The renewal authority is open-ended, but each 30-day renewal requires a fresh Committee action.

What other agencies can the Governor order to act?

G.S. 113B-23 names the Energy Policy Council, the Public Utilities Commission, the Attorney General, "and other appropriate State and local agencies." G.S. 113B-24 specifically directs the Attorney General and state and local law enforcement to enforce the Program. The scope is broad: state and local agencies that have a role in implementing or enforcing the Program may all be ordered.

Background and statutory framework

The constitutional duty. N.C. Const. art. III, § 5(4) requires the Governor to take care that the laws be faithfully executed.

The 1975 Energy Policy Act. Chapter 113B of the General Statutes, effective July 1, 1975. G.S. 113B-1 (legislative findings), G.S. 113B-2 (Energy Policy Council), G.S. 113B-9 (Council emergency planning duties), G.S. 113B-9(e) (Council recommends Emergency Energy Program), G.S. 113B-9(f) (Program content requirements), G.S. 113B-9(h) (Program must include implementation proposals and review procedures), G.S. 113B-20 (definition and declaration of energy crisis), G.S. 113B-20(b) (Governor's declaration authority), G.S. 113B-22 (Governor's emergency order authority, Legislative Committee oversight, 48-hour silent approval, 30-day sunset), G.S. 113B-23 (Governor's order to agencies to implement and enforce), G.S. 113B-24 (enforcement by Attorney General and law enforcement).

Analog emergency authority. G.S. 147-33.2 (the Governor's emergency war powers) is cited as an analogous structure for the breadth of the energy-crisis authority.

Citations

• N.C. Const. art. III, § 5(4)
• Chapter 113B (Energy Policy Act of 1975)
• G.S. 113B-1, G.S. 113B-2, G.S. 113B-9, G.S. 113B-9(e), G.S. 113B-9(f), G.S. 113B-9(h)
• G.S. 113B-20, G.S. 113B-20(b)
• G.S. 113B-22(a), G.S. 113B-22(b), G.S. 113B-22(c), G.S. 113B-22(d)
• G.S. 113B-23
• G.S. 113B-24
• G.S. 147-33.2

Source

• Landing page: https://ncdoj.gov/opinions/emergency-energy-program/

Original opinion text

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. Edmisten
Attorney General

Thomas F. Moffitt
Associate Attorney General