Recent uncertainty over New Hampshire’s energy efficiency program continued last week, as the House of Representatives passed a bill to govern its pricing, while regulators dug in on their decision to roll back utilities’ recent budget proposal for the program.

State representatives Thursday unanimously passed House Bill 549, which would set the system benefits charge (SBC) at 52.8 cents/kWh, as approved for 2020, to fund New Hampshire’s 2021-23 Triennial Energy Efficiency Plan. The bill also would authorize the Public Utilities Commission to adjust the SBC annually based on inflation.

The measure is one of a series of steps stakeholders and legislators are taking following a PUC order Nov. 12 that basically reversed course on utilities’ three-year program proposal. (See NH EE Plan Approaches 2nd Year without Funding Certainty.) In its order (DE 20-092), the PUC said the proposed program budget of nearly $400 million was too high and directed the utilities to submit a new budget in line with the 2018-2020 plan.

While the House last week unanimously passed the bill to set program funding, it was only after Republicans and Democrats were split on a vote for the amendment that set the new SBC language. All but one Republican voted for the amendment, and all but two Democrats voted against it.

In both voting against the amendment and passing the final bill, Democrats were signaling that they support the basis of the bill but believe that it needs more work, Sam Evans-Brown, executive director of Clean Energy NH (CENH), told NetZero Insider.

The bill is “awful for New Hampshire citizens who are utility ratepayers,” Democratic Rep. Rebecca McWilliams said in a statement. “It moves SBC rate setting to the legislature, which means the rate will rarely (never) go up with inflation.”

Democrats are concerned that legislative control of the SBC will lead to an annual fight among policymakers over what the rate should be, Evans-Brown said. That means that any certainty the bill seeks to achieve might not be realized in the long term.

Republican Rep. Michael Vose, chair of the House Science, Technology and Energy Committee, believes the bill will put “guardrails” on the program’s funding. Under the utilities’ 2021-2023 plan, the SBC would have doubled, he said in a statement, adding that “the bill prevents that by striking a balance between investing in energy efficiency and protecting ratepayers from unsustainable increases to their electric bills.”

The bill now goes to the Senate, where McWilliams hopes it will be “further refined.”

For Evans-Brown, the bill will need to go beyond mere budget setting and “set the clock back” to before the PUC’s Nov. 12 order.

“The problem with the order is that it [shrunk the program budget] in such a way that it blew up all of our energy efficiency policies,” he said, adding that the order left the utilities wondering what they can do with the new budget.

Despite still needing to make its way through the legislative process and go to the governor for approval, passage of the bill could provide an expedient pathway to relief that stakeholders have yet to find elsewhere.

PUC Order on Rehearing

On Friday, the PUC denied requests for a rehearing of its order restructuring the three-year program.

New Hampshire’s utilities, the Consumer Advocate, advocacy groups and the New Hampshire Department of Energy filed rehearing requests in early December, primarily claiming that changes to the program administration in the order were “retroactive in nature” and departed from precedent.

The PUC disagreed with their arguments.

Conservation Law Foundation attorney Nick Krakoff said the organization “will continue the fight to overturn” the PUC’s “irresponsible” November order.

In a separate order on Friday, Commissioner Pradip Chattopadhyay denied a Dec. 17 motion by the Office of the Consumer Advocate (OCA) for his disqualification from the docket. The OCA claimed that Chattopadhyay’s prior work in the OCA was a conflict of interest. Chattopadhyay, however, said the OCA did not sufficiently demonstrate that he had any involvement in the docket before joining the commission.

CENH Lawsuit

A New Hampshire judge on Dec. 29 denied a request filed in Superior Court by a group of the state’s energy efficiency industry stakeholders, led by CENH, seeking a temporary injunction staying the PUC’s order.

The judge said the court lacked “subject matter jurisdiction to entertain appeals from PUC rulings, orders and rules,” and that the state’s Supreme Court has “exclusive jurisdiction” over the case.

Plaintiffs filed a motion to reconsider on Jan. 3, arguing the opposite and that there is no adequate remedy of law for immediate relief.

“One of the most disappointing pieces from the judge’s order … was the insistence that the New Hampshire Supreme Court … ‘can act with great alacrity when it needs to,’” Evans-Brown said.

Expediency, according to the petitioners, is imperative in this case to prevent layoffs that would stem from the PUC’s order, which they say effectively defunded ongoing activities of the state’s energy efficiency industry.

At this point, Evans-Brown said, CENH and other advocates are shifting their approach to find relief.

It’s not clear how a legal case would move ahead at this point, he said, but it is “100% certain” that stakeholders will appeal the PUC’s order to the Supreme Court.

“I think we are headed on a different path strategically, which is to say, instead of hoping that the Supreme Court will ride in on a white horse and get the contractors back to work, we are going to focus on a legislative solution in the near term,” he said. “In the long term, we hope that the New Hampshire Supreme Court understands the real problems with this order from a due process perspective and vacate it so that it does not become a precedent.”