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US Solicitor General Urges Supreme Court to Turn Away Duke Energy Antitrust Case

By  |  December 4, 2025
energy

The U.S. solicitor general has advised the Supreme Court to reject Duke Energy’s request for review in a high-profile antitrust dispute involving the company’s North Carolina utility subsidiary and independent power producer NTE. According to a statement from the solicitor general, “This appeal arises out of a campaign by an established monopolist to stop a more efficient rival from disturbing its long-dominant hold over a regional energy market,” alleging that Duke acted to protect its control over the local electricity sector.

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    The case stems from a long-running conflict that escalated after Duke Energy Carolinas signed a generator interconnection agreement in 2017 with NTE Carolinas II, which planned to construct a combined-cycle gas plant in Reidsville, North Carolina. Two years later, Duke sued NTE over alleged missed payments tied to that agreement. In 2022, a district court dismissed NTE’s anticompetitive claims, but the Fourth Circuit revived them the following year. Per a statement in the solicitor general’s brief, the appeals court found that multiple actions taken by Duke could collectively amount to anticompetitive behavior.

    In the solicitor general’s view, the Fourth Circuit’s decision aligns with established precedent. “When a monopolist engages in a coordinated campaign to squelch competition, no circuit holds that each discrete aspect of the defendant’s conduct must be analyzed in isolation,” the filing said. “Instead, courts uniformly agree, consistent with this Court’s precedent, that a holistic analysis is appropriate in circumstances like these.”

    Read more: TotalEnergies to Appeal French Fine as Court Delivers Landmark Greenwashing Verdict

    Legal experts say the administration’s position could signal a shift in federal antitrust enforcement in the energy market. According to a statement cited in the briefing, the Department of Justice and private litigants have often hesitated to challenge utilities under antitrust laws in recent years. Yale Law School associate professor Joshua Macey noted that “at the very least, this suggests that the Trump Solicitor General’s Office thinks that antitrust should be a viable tool in electricity markets, and it may indicate that the administration is concerned with anticompetitive conduct.” He added that the solicitor general’s stance makes it less likely the Supreme Court will take up the appeal.

    Duke Energy argues that its actions were lawful and that the Fourth Circuit embraced what the company calls a flawed “monopoly broth” theory — suggesting, as Duke put it in its petition, “If an antitrust plaintiff pleads a series of independently lawful acts, each of which does not violate this Court’s precedents, those acts cannot together add up to some nebulous antitrust violation.”

    Court documents describe how NTE’s proposed plant depended on securing an offtake contract with the city of Fayetteville. According to a statement referenced in the solicitor general’s filing, Duke reportedly undermined that prospect by renegotiating Fayetteville’s existing supply agreement, offering short-term price reductions and a lump-sum payment — incentives totaling $325 million. The same filing said Duke intended to recover that amount from future price increases affecting Fayetteville and other ratepayers.

    At the same time, Duke allegedly took steps to weaken NTE’s credibility, including sending notices of default under the interconnection deal and claiming NTE failed to pay invoices. The government’s brief notes that Duke previously lost nine wholesale customers after NTE built a cleaner and more cost-effective combined-cycle plant that attracted local municipalities.

    Source: Utility Dive