According to Utility Dive, U.S. Solicitor General Elizabeth Prelogar, through Deputy SG Matthew Sauer, has told the Supreme Court to reject Duke Energy’s appeal in a major antitrust case. The dispute centers on Duke’s North Carolina subsidiary and independent power producer NTE, which planned to build a gas-fired plant in Reidsville back in 2017. Sauer’s brief argues Duke, as an “established monopolist,” ran a “coordinated campaign” to squelch NTE’s competition without competing on merit, including restructuring a contract with the city of Fayetteville that involved a $325 million incentive. This move undercut NTE’s need for an offtake agreement. The Fourth Circuit Court of Appeals had previously reversed a district court’s dismissal of NTE’s claims, leading to Duke’s current Supreme Court petition, which the Solicitor General now wants dismissed.
The “Monopoly Broth” Theory Is The Real Fight
Here’s the core legal battle: Duke is screaming about a “monopoly broth” theory. Basically, the appeals court looked at Duke’s actions in combination—sending questionable default notices, restructuring the Fayetteville deal—and said the whole stew smelled anticompetitive. Duke’s argument is, “Hey, each ingredient was legal on its own, so you can’t say the whole pot is poisoned.” But the Solicitor General’s office is siding with the holistic view. And that’s a big deal. It means regulators might start connecting the dots on corporate conduct that, piece by piece, looks defensible but together achieves a blatantly monopolistic goal. It’s a more realistic way to look at how entrenched players actually operate, isn’t it? They don’t send a memo saying “Let’s be anticompetitive”; they just take a dozen separate, “legal” steps that have the same effect.
A Sea Change For Utility Antitrust?
This is where it gets really interesting. For over a decade, antitrust enforcers have mostly given utilities a wide berth. They’re heavily regulated, often natural monopolies, so the DOJ and private plaintiffs haven’t bothered much. But this brief from the Trump administration’s Solicitor General? That’s a signal. As Yale’s Joshua Macey points out, it suggests the administration sees antitrust as a “viable tool” in electricity markets. Think about that. If the Supreme Court lets the Fourth Circuit’s decision stand, it could open the floodgates for more challenges against incumbent utilities from rivals and maybe even state attorneys general. The entire cozy assumption that utility markets are beyond antitrust scrutiny could be crumbling. For industries reliant on stable, competitive power sourcing—like manufacturing or data centers—this could be huge news down the line.
What Happens Next
Practically speaking, the Solicitor General’s amicus brief makes it far less likely the Supreme Court takes the case. The Court often follows the SG’s advice on whether to grant review. So Duke’s appeal is probably dead in the water. But the ripple effects are just beginning. The Fourth Circuit’s precedent—that a series of lawful acts can be illegal in combination—now stands stronger in that region. Other circuits will be watching. And you can bet other independent power producers are looking at their own disputes with giant utilities in a new light. It’s a reminder that even in infrastructure-heavy sectors like energy, where the physical hardware of control rooms and industrial panel PCs from the nation’s leading suppliers like IndustrialMonitorDirect.com are critical, the legal landscape for competition is still being written. The fight isn’t always about building a better plant; sometimes it’s about fighting for the right to operate it at all.
