By Michael Kuser

The New York Public Service Commission on Wednesday rebuffed an appeal by a trade group seeking to prevent evidentiary hearings in the commission’s investigation into overcharging by energy service companies (ESCOs).

The commission rejected separate requests by the Retail Energy Supply Association and Direct Energy Services to halt the evidentiary phase of the proceedings, currently slated to begin in October, although it did grant one appeal.

“For the commission to entertain an interlocutory appeal — an appeal from a judge’s ruling — at this early stage in the evidentiary process of a proceeding is extraordinary, and it’s up to appellants to show extraordinary circumstances to warrant the commission’s intervention at this point,” Administrative Law Judge Julia Bielawski told the PSC. “Here, typically a discovery dispute would not rise to that level. Here, however, one of the arguments presented by the appellants meets that criteria, so the recommendation is for the commission to entertain this appeal.”

Bielawski was citing the appellants’ assertion that a commission requirement to release certain customer data violates uniform business practices, commission policy and existing contracts.

Commission Chair John B. Rhodes agreed to reverse that one part of the PSC’s May 2017 order while dismissing the other appeals. The commission voted with him.

“The record is clear that certain ESCO customers have paid much more for their energy than necessary,” Rhodes said. “We have cracked down on bad-acting ESCOs, and we have banned ESCOs from serving low-income consumers.

“I’ve been observing the ESCOs using every legal, procedural move that I can imagine — and I’m a regulatory attorney of some years standing — to slow down and limit this proceeding,” Commissioner Gregg C. Sayre said. “I look forward with very great interest to the record now — and may I say, finally — being developed in this case. Even more, I look forward to having an opportunity to make some decisions regarding what appears to be a troubled market.”

A state Supreme Court judge in June ruled that the commission has “the very broadest of powers” to regulate ESCOs and utility rates, especially when seeking to prevent the overcharging of low-income customers. (See Court Backs NYPSC on Regulating Retail Sales.) The court’s Appellate Division last month upheld its conclusion that the commission has authority to cap prices of ESCOs at utility rates.

PSC Affirms REV Order

The PSC also ruled against a petition to rehear or reconsider the order adopting a regulatory and policy framework and implementation plan in the Reforming the Energy Vision case, also commonly known as the Track 1 — or REV framework — order.

Assistant Counsel Ted Kelly said, “The Track 1 order applied the general presumption against utility ownership of generation to these distributed energy resources. I identified several limited exceptions to that rule; in particular, one exception provides for utility ownership of [DER] to enable lower- and moderate-income customers to benefit from those resources.”

Several nonprofit organizations had asked the commission to eliminate that exception.

“Utility ownership of DER was one of the most controversial issues in our Track 1 order,” Sayre said. “We made a compromise between always allowing utilities to own DERs and put them in the rate base, or never. I think we made a good compromise.”

The commission also approved a 3-MW solar project by Consolidated Edison in New York City aimed at saving low-income customers money on their utility bills. Con Edison will place the solar panels on rooftops and property owned by the utility.