Sue Sturgis North Carolina lawmakers this week will begin considering the nomination to the North Carolina Utilities Commission of Donald van der Vaart, whose wife’s work would present potential conflicts of interest for him in this role, and who has been a lightning rod for controversy due to extreme positions questioning humans’ role in driving climate change.
Van der Vaart’s nomination to the NCUC is scheduled to get an initial hearing in the Senate Agriculture, Energy and Environment committee on the morning of May 14. The NCUC, which as of July 1 will transition from seven members to five, regulates companies that provide electricity, gas, water, and other utility services.
Van der Vaart – a former state Department of Environmental Quality Secretary, attorney and chemical engineer – is a controversial choice due to his questioning the extent of humans’ role in driving climate change, disagreeing with the Environmental Protection Agency’s finding that greenhouse gases are harmful to human health, promoting fracking and offshore oil and gas drilling over the wishes of impacted communities, proposing to classify methane gas and nuclear power as “renewable” while on the North Carolina Energy Policy Council, accusing environmental activists of colluding with Russia, fighting offshore wind, and taking private meetings with Duke Energy while overseeing regulation of its coal ash pollution, which resulted in an ethics complaint. Early in his career, van der Vaart worked for Shell Oil and Carolina Power & Light, which is now part of Duke Energy, before going to work for the state environmental agency. He served on the federal Science Advisory Board during the first Trump administration.
Van der Vaart’s wife, Sandra van der Vaart, chairs a prominent legal advocacy group for big businesses, the North Carolina Chamber Legal Institute, which represents the interests of Duke Energy and other utility companies and also opposes strict regulation of toxic PFAS chemicals. He faced criticism recently for failing to recuse himself from a high-profile case about PFAS regulation in his current position as a state administrative law judge.
Van der Vaart was nominated to the NCUC by North Carolina Treasurer Brad Briner, a Republican elected to the office last fall. This seat was previously appointed by the governor. But after Democrat Josh Stein defeated Republican Mark Robinson to become governor, the Republican-controlled legislature convened a lame-duck session to pass a Hurricane Helene relief bill containing a provision shifting an NCUC appointment to the treasurer, giving Republicans control over the majority of the commission – and making North Carolina the only state where a treasurer makes such a pick.
Former Gov. Roy Cooper (D) vetoed the bill, but a Republican supermajority in the legislature overrode him. Stein is now suing over this and other appointment changes, which are part of a larger political effort by North Carolina Republicans to shift power from the Democratic-controlled executive to the GOP-controlled, and heavily gerrymandered, legislative branch. Briner recently intervened in Stein’s lawsuit to defend the new nominating power.
Wife’s work presents recusal question on Duke, PFAS
Sandra van der Vaart is the chief legal officer for medical testing giant Labcorp, and she has chaired the North Carolina Chamber Legal Institute since 2022, according to the group’s IRS filings. NCCLI was founded by, and is a sibling organization to, the NC Chamber, a business lobby whose members include Duke Energy and Dominion Energy – utility companies regulated by the NCUC.
The North Carolina Ethics Act indicates that Sandra van der Vaart’s work advocating for NCUC-regulated energy companies could require Donald van der Vaart to recuse himself from NCUC matters related to Duke Energy – a substantial part of the work of the commission. The Ethics Act states:
A public servant shall take appropriate steps, under the particular circumstances and considering the type of proceeding involved, to remove himself or herself to the extent necessary, to protect the public interest and comply with this Chapter from any proceeding in which the public servant’s impartiality might reasonably be questioned due to the public servant’s familial, personal, or financial relationship with a participant in the proceeding.
NCCLI represents the legal interests of Chamber members. In March, it submitted a friend-of-the-court brief advocating for Duke Energy’s interests in a case at the 4th U.S. Circuit Court of Appeals. Brought by Florida-based NTE Carolinas II, the lawsuit alleges illegal monopoly behavior by Duke in North Carolina’s wholesale energy market. Last August, a panel of the 4th Circuit overturned a lower court’s ruling holding that Duke’s business practices did not violate antitrust law, and in November the full court declined Duke’s request to reconsider that decision. The NCCLI’s brief asked the U.S. Supreme Court to weigh in, and the court is still considering whether to take up the case.
In addition to regulating electricity providers, the NCUC regulates investor-owned water and wastewater systems across the state, where PFAS released by industry have caused widespread water contamination.
NCCLI opposes strict regulation of PFAS in drinking water supplies, advocating instead for what it calls “highest safe dose.” Last year, in his role as an administrative law judge, van der Vaart sparked conflict-of-interest concerns when he ruled on an issue related to NCCLI’s PFAS advocacy: He sided with the City of Asheboro in its lawsuit challenging the state’s strict limits in its discharge permit for the PFAS chemical 1,4-dioxane, which the Environmental Protection Agency says causes kidney and liver damage. Attorneys for the Southern Environmental Law Center say his ruling undermined the state’s ability to protect residents from 1,4-dioxane and other toxic chemicals in drinking water supplies.
ALJs in North Carolina abide by the American Bar Association’s Model Code for Judicial Conduct for State Administrative Law Judges, NCGS § 7A‑754. These rules state that an ALJ should recuse themselves when their “impartiality might reasonably be questioned,” such as when a spouse has “more than a de minimis interest that could be substantially affected by the proceeding.”
Working for climate science deniers
Prior to becoming a state administrative law judge in 2021, van der Vaart worked as a senior fellow covering energy and the environment for the John Locke Foundation, starting his role there in 2018. The Raleigh-based think tank is a member of the State Policy Network, which is funded by fossil fuel interests and has been at the forefront of disinformation campaigns targeting climate science and sowing doubt about wind and solar power.
The John Locke Foundation historically focused on undermining public confidence in the science of climate change. But as evidence for human-caused warming became harder to deny, the organization shifted its focus to attacking renewable-energy solutions while advocating for burning more fossil fuels and building more expensive and slow-to-deploy nuclear power plants, all compatible with Duke’s business goals.
During van der Vaart’s tenure with the think tank, he argued that global warming is not an “existential threat,” called the Green New Deal “radical and job-killing,” opposed a federal law to set limits on carbon pollution from power plants, and railed against battery storage, which is now the second largest source of new capacity additions to the grid. He also misleadingly characterized nuclear power as the “cleanest, cheapest” source of energy – even as new nuclear projects ran up massive cost overruns in Georgia and were abandoned amid scandal in South Carolina, where utility customers continue to pay billions for the failed project.
Documents filed with the NCUC as part of a 2023 rate hike proceeding revealed that the John Locke Foundation received $25,000 directly from Duke Energy’s corporate coffers in June 2021. Soon after, the think tank published research attacking former Gov. Cooper’s plans for offshore wind energy, arguing instead for more methane gas and nuclear power plants. Duke and the John Locke Foundation have refused to reveal the full extent of their financial ties.
Several months after leaving the think tank, van der Vaart was appointed to lead the state Office of Administrative Hearings, which reviews cases from people, businesses, and organizations challenging decisions made by state agencies. The appointment itself raised eyebrows, as van der Vaart had a law degree but “no apparent record of trying cases or practicing law,” according to The Assembly. Critics highlighted how he has politicized the office, appointing Republican associates as judges rather than advertising jobs externally and having a screening committee review the applications, as his predecessor did. If van der Vaart is confirmed to the NCUC, he would have to resign his judgeship.
(Photo of Donald van der Vaart, at left, being sworn in as head of the North Carolina Office of Administrative Hearings in 2021. Photo from the North Carolina Judicial Branch.)
