North Carolina State Treasurer Brad Briner announced Wednesday that he has chosen former North Carolina Department of Environmental Quality Secretary Donald van der Vaart as his nominee to the North Carolina Utilities Commission.
The commission regulates the rates and services of all investor-owned public utilities in the state. This includes companies that provide electricity (including electricity resellers), telephone service (including payphone service and shared tenant service), natural gas (including gas resellers), water (including water resellers), wastewater, household goods movers, buses, brokers, and ferryboats.
“North Carolinians need a strong voice on the North Carolina Utilities Commission,” Briner said in a press release. “Don provides that voice, and his expertise and leadership will ensure that the citizens of North Carolina have access to low-cost, reliable energy.”
van der Vaart, who is currently the Chief Administrative Law Judge and director of the Office of Administrative Hearings, is an engineer and attorney by trade with a background in the energy and utilities sectors. He has served on the EPA’s Scientific Advisory Board and the North Carolina Environmental Management Commission. He was also a senior fellow at the John Locke Foundation, which oversees Carolina Journal.
“I am deeply honored by Treasurer Briner’s confidence in me,” van der Vaart said in the same release. I look forward to working to ensure that North Carolina’s energy future remains reliable, affordable, and ever cleaner, safeguarding both our prosperity and our environment.”
Senate Bill 382, which became law last December, gave the treasurer the authority to appoint one person to the commission, thus taking away the power of one of three commission appointments from Gov. Josh Stein.
Before SB 382, the governor appointed three of the commission’s five members. Legislative leaders appointed the other two members. The governor also selected the commission’s chair, but the law also removes Stein’s authority to do so.
In an exclusive interview with Carolina Journal on Tuesday, Briner said that as soon as the law passed in December, his phone began ringing with hundreds of people interested in the appointment.
“The one consistent thing that I heard across all those different meetings was that we needed more expertise on the utilities commission,” he said. “That we needed more people who were really in the weeds on the policy matters at hand, because though I think everyone wants to reduce it to renewable versus non-renewable, there’s a lot of gray in the middle there. That’s really important to understand.”
Briner told CJ he was looking for someone with expertise in two different ways, and van der Vaart fit the bill.
“I was looking for expertise legally because ultimately a lot of what the utilities commission does has to do with promulgating orders, which is fundamentally a legal process, and then I was looking for expertise technically,” he said. “The mandate of the utilities commission is always to provide reliable and affordable utilities, but there are many technical aspects to actually doing that. I didn’t think I would be able to find a candidate that both brought me legal and technical expertise, but I did, and so for me, it ended up being a fairly straightforward decision.”
Briner said it was important to choose someone with a good history of governance and a history in state government, especially given the complex change of the body of the commission prospectively, and the way that the new chairman will be selected.
A letter from the treasurer’s office was sent to leadership this morning in both the state House and Senate, as the nomination needs joint approval.
The nomination is not without some controversy as Stein, a Democrat, has sued Republican legislative leaders over the change, which would take effect on May 1 if the General Assembly approves the appointment.
If appointed, van der Vaart would replace a governor’s appointee whose term ends June 30.
The governor’s lawyers filed paperwork on April 21 seeking a temporary restraining order and preliminary injunction against the change. The court filing also asks for the case to be transferred to a three-judge panel.
It was announced Tuesday afternoon that a three-judge Superior Court panel had scheduled a hearing Thursday morning in Wake County Court to address Stein’s request for a temporary restraining order.
“As a result, the Governor will no longer be able to appoint, supervise, or remove a majority of the members of the Utilities Commission,” Stein’s lawyers wrote in their paperwork last week.
“The restructuring of the Utilities Commission violates the North Carolina Constitution — specifically Sections 1 and 5(4) of Article III and Section 6 of Article I,” the court filing continued.
“Senate Bill 382’s changes to the Utilities Commission prevent the Governor from fulfilling the duties and exercising the powers assigned to him in the Constitution,” Stein’s lawyers added.
Briner disagrees.
“Having read the constitution and read the opinion that the court issued earlier last week (over election board appointments) at this point, I honestly can’t say I understand where the decision came from,” he told CJ. “Certainly, the governor has a different role than the treasurer or other members of the Council of State. We each have our own role, and I think that’s pretty clear. The opinion that was handed down seems to make us all subservient to the governor, but that’s not the way our constitution reads.”
Briner added that he understands why the Stein administration would file litigation against every provision of SB382, but he doesn’t necessarily agree with their basis for doing so. His office is opposed to the utilities commission piece of the lawsuit and said the legislature is exercising the authority it has appropriately.
“I don’t view that the decision to appoint Don or anyone with conservative credentials to this board as existential for the renewable energy industry, and I think many in that industry, and there are many Republicans in that, but Democrats, of course, as well, take it that way,” he told CJ. “I think the utilities commission mandate is very clear. Reliability, affordability, and second-order concerns are greenhouse gases or carbon, or pick your other thing, but they are second-order concerns, and so we’ve got to be focused on making sure that our consumers, our businesses, and our taxpayers are treated well, and we can deal with other issues later.”
The disputed Utilities Commission appointment makes up one piece of the lawsuit Stein filed on Feb. 7 against multiple provisions of Senate Bill 382, enacted in 2024 over then-Gov. Roy Cooper’s veto. Stein’s suit also challenges a provision in SB 382 that would restrict his appointments if he fills a statewide judicial vacancy. Stein challenges another law that limits his authority over a state Building Code Council.
The legislation prompted earlier lawsuits over plans to move the State Board of Elections under the authority of State Auditor Dave Boliek, a Republican, and a provision that would block Stein from appointing a new commander for State Highway Patrol.
Last week, a three-judge panel blocked the North Carolina General Assembly’s plan to shift oversight of the State Board of Elections to Boliek. The panel split, 2-1 in supporting Stein’s lawsuit against the planned election administration changes.