Two and a half years ago the Pennsylvania Supreme Court affirmed Commonwealth Court Judge Michael Wojcik's Opinion in Hommrich v. Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission; 231 A.3rd 1027 (Pa. Cmwlth. 2020). A recent review of the net metering applications and other requirements of several Pennsylvania electric distribution companies (EDC’s) demonstrates that some EDCs have not implemented the holdings of the Hommrich decision in these important informational and decisional materials for customers and developers. To fully promote the General Assembly’s intent of incentivizing alternative energy through net metering, the Public Utility Commission (PUC) should require stricter compliance with the law as interpreted in Hommrich.
HMS Legal Blog
Commonwealth Court Confirms Affirmative Public Benefits Standard Still Has Teeth in Fair Market Value Acquisitions (Reversing PA PUC Approval of Aqua Acquisition of East Whiteland Township)
In Cicero v. Pennsylvania Public Utility Commission, ___ A.3d ___, (Pa. Cmwlth., No. 910 C.D. 2022, filed July 31, 2023) (“Cicero”), the court reversed the Pennsylvania Public Utility Commission’s (PUC) approval of Aqua Pennsylvania Wastewater Inc.’s acquisition of East Whiteland Township’s wastewater system assets. The court found Aqua had not proven that the acquisition would provide affirmative public benefits and confirmed that proving net benefits outweigh detriments of a transaction remains the standard for approving fair market value (FMV) acquisitions of municipal assets. Cicero, slip op. at 21 (“[I]n every Section 1329 case, it must be shown that the affirmative public benefits that arise from and are specific to a transaction outweigh the harms of the transaction, such that approval of the transaction will ‘affirmatively promote the service, accommodation, convenience, or safety of the public in some substantial way.’”).
Commonwealth Court Finds Environmental Rights Amendment Requires PUC Environmental Impact Review of Public Utility Facility Siting
On March 9, 2023, the Commonwealth Court issued a memorandum opinion reversing and remanding a Pennsylvania Public Utility Commission (PUC) decision that approved a natural gas company’s plan for siting facilities. The court held that the PUC failed to fulfill its duties under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) because the PUC did not conduct a review or analysis of the environmental impacts of the proposed facilities, including explosion impact radius, noise, or heater emissions. The decision opens the door for environmental activists and municipalities to oppose siting of utility buildings on environmental impact issues and places increased burdens on utilities and the PUC for utility facility siting.
Energy retailer asks Maryland Supreme Court to reconsider the Maryland Public Service Commission’s re-writing of the Maryland Telephone Solicitations Act
On March 31, 2021, the Public Service Commission of Maryland (Commission) issued Order No. 89795 which proposed to drastically re-write the Maryland Telephone Solicitations Act (MTSA) and, if permitted to stand, may fundamentally change the way business is conducted in the state. In Order 89795, the Commission was resolving a complaint filed by Commission staff against SmartEnergy, a Maryland retail energy supplier. The complaint alleged that SmartEnergy engaged in false and misleading advertising in connection with a mailing solicitation campaign that resulted in consumers calling SmartEnergy to sign up for the service advertised in the mailed postcards, and then subsequently becoming disgruntled with the service or the terms. Ultimately, the Commission found SmartEnergy had violated the MTSA and imposed penalties and sanctions, but Order 89795’s re-writing of the MTSA has much broader implications than just the issues and interests alleged in the complaint.
On June 30, 2022, by a 6-3 vote, the United States Supreme Court in West Virginia v. U.S. Environmental Protection Agency, 597 U. S. --- (West Virginia v. EPA), held that Section 111(d) of the Clean Air Act (42 U.S.C. § 7411) does not give the United States Environmental Protection Agency (EPA) broad authority to regulate greenhouse gas emissions from power plants as set forth in the Clean Power Plan (CPP). While the issue before the Court was narrow, the Court’s application of the “major questions doctrine” (whereby a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance) to invalidate the EPA’s exercise of authority will likely have significant consequences for federal agencies and the entities they regulate, particularly where an agency seeks to implement a novel regulatory program that is not explicitly authorized by statute.
An interest group claiming a broad and diverse membership has petitioned the Pennsylvania Public Utility Commission (“PaPUC”) to issue a policy statement on how to recover the costs of EV charging stations in utility rates. The interest group, ChargeEVC-PA, includes entities ranging from environmental groups including Sierra Club and Natural Resources Defense Council, to EV charging industry members, electric cooperatives, and utilities alike. In the Petition, the Group argues that now is the time for the Commission to act to ensure that Pennsylvania has a coherent policy that promotes and supports the adoption of Electric Vehicles (“EV”) by implementing policies (primarily utility rate structures) that encourage deployment of EV charging stations, both public and private. The Petition claims that there will be 18 million EVs on the road by 2030 and that auto manufacturers now produce more than 90 EV models, and those numbers are expected to grow dramatically in the coming years to bolster the urgency of its request. The Petition also notes the recently enacted Infrastructure and Jobs Act -- which includes $7.5 billion for EV charging infrastructure – positions Pennsylvania to receive at least $171 million to build out EV charging stations across the state’s high volume traffic corridors, as further impetus to promulgate a state-wide policy now.
By: Bryce R. Beard
In our increasingly digital world, it is more important than ever to ensure that your personal data is secure. Almost every day there are news articles on data breaches, ransomware attacks, and other cybersecurity vulnerabilities that have affected all types of businesses from interstate pipeline companies, to cell carriers, and even Pennsylvania electric utilities. But what can you, as a consumer, do to ensure your data is safe and under your control?
With Pennsylvania voters overwhelmingly in favor of legislation to address climate change (83% according to an August 2020 Global Strategy Group survey) recently introduced legislation could jumpstart Pennsylvania’s transition to a renewable energy future. Pennsylvania will have two self-imposed goals for its energy future: (1) by 2035 all electricity will be produced from renewable energy sources, and (2) by 2050 all energy consumed in the commonwealth will be from renewable sources.
The purpose of this article is to unpack one of the most recent FERC Orders on alternative energy and discuss the new market opportunities, if any, that it will open to an industry struggling to find a path for broader customer engagement on renewables and demand reduction products. The Federal Energy Regulatory Commission (“FERC”) latest order has changed the rules for who can participate in the wholesale power markets. This latest FERC move will allow renewable energy producers as small as homeowners with a roof covered in solar panels or an electric vehicle in the garage, to participate in wholesale markets through aggregation with other smaller scale resources, despite being located on the distribution system. Under prior rules, most of these resources were too small to participate in the wholesale markets. However, with its Order No. 2222, issued September 18, 2020, FERC changed the opportunities for these smaller users by permitting distributed energy resources (“DER”) to participate as part of an aggregation in wholesale markets operated by Regional Transmission Organizations (“RTO”) and Independent System Operators (“ISO”). Despite, efforts to alter Order 2222 by Order 2222-A on March 18, 2021, and Order 2222-B on June 17, 2021, Order 2222 remains largely unchanged.
The Supreme Court today affirmed the Commonwealth Court’s invalidation of Pennsylvania Public Utility Commission (“PUC” or “Commission”) regulations that had the effect of blocking alternative energy project developments of 5 MW or less that propose to use net metering. The PUC’s regulation had defined a developer of a net metering project as a “utility”; because the legislature in the PUC-administered Alternative Energy Portfolio Standards Act (“AEPS”), 73 P.S. §§1648.1, et seq. prohibited a “utility” from participating in net metering, the PUC’s regulation made it impossible for an alternative energy project developer from availing itself of net metering, essentially rendering such projects uneconomic. The Independent Regulatory Review Commission (“IRRC”) had voted to disapprove this attempt by the PUC to block developers from using net metering in their projects, but the PUC submitted the regulations for legislative approval anyway, and because the general assembly was not in session, the IRRC process allowed the regulations to become law.
Back in 2018 I wrote an article explaining all the reasons why supplier consolidated billing (“SBC”) was a good idea. Then, this morning, I saw an article in Energy Choice Matters, and it provided yet another reason why SBC should be the law. In the ECM story, the recently announced strategic initiatives of FirstEnergy Corp. (“FE”) were discussed, including an initiative to expand its offerings of products and services other than commodity to its captive electric distribution customers. The FE press release extolled that these are “products and services that customers want” including energy efficient lighting, smart home products, maintenance, warranty, and home services. These are all products and services that electric generation suppliers (“EGS”) and natural gas suppliers (“NGS”) provide to their customers and similarly wish to bill along with the commodity charges on a single bill. The discussion makes it clear that FE believes that the billing relationship with customers is a key means of providing value to customers in the form of desirable products and services conveniently billed along with energy while providing incremental income opportunities for the provider of that commodity. The article reveals another data point and strengthens the argument for SBC on grounds that not allowing it demonstrates discrimination and lack of fairness.
A new year is upon us; and while that may facially seem like a good thing, the continued uncertainty has people anxious. I feel challenged to consider what issues, concerns, and hot topics are likely to rise the surface in the next twelve months. With the pandemic still at the top of the news queue most of the time, and with many people still working from home, if they are working at all, picking the possible hot-button issues is no easy task. The trick, if there is one, is to narrow down the range of probable outcomes – in this case, to things that were begun and not finished. What follows are my predictions for those industries regulated by public utility commissions – and the Pennsylvania Public Utility Commission (“PaPUC”) in particular.
The global Coronavirus pandemic poses novel challenges to the ability of individuals, professionals, organizations, and businesses to find a path forward during this crisis. At HMS we anticipated Governor Wolf’s call for employees to work remotely and our lawyers have been doing so since March 16 and will continue to do so under the Governor’s most recent pronouncement. In so doing we remain fully able to bring the wide-ranging resources of our firm to bear on your need for advice and representations. We have long-standing experience with government and administrative agencies and courts of law, and we can and will continue to put that experience to work for you.
On October 4, 2019, Governor Wolf signed into law Act 73 of 2019, and with it provided some much-needed updates to Pennsylvania’s Telemarketer Registration Act. 73 P.S. 2241, et seq. The changes were more surgical than sweeping and focused on a few key elements. First, the revisions added a definition of a “business telephone subscriber” and then added business telephone numbers to all of the prohibitions and requirements of the Act. The short answer here is that whatever requirements once applied only to residential and wireless customers, now also apply to businesses. The second focus was to add a stand-alone definition of “robocall” and to impose requirements for robocalls. The changes also include removing the 5-year lifespan of Do Not Call registrations – once you register, you are on the list until you deregister or abandon the line. Finally, the new law prohibits making telemarketing calls on Legal Holidays.
After a long, complex path, Pennsylvania has finally arrived as an alternative ratemaking state. But who will be the first utility to avail itself of the options now available? Both the Wolf administration (“Administration”) and the Public Utility Commission (“Commission”) seem eager to have a test subject, I mean a willing participant, to propose an alternative ratemaking design. . But there are specific steps a utility must take in order to comply with, and obtain approval from, the Commission.
There have been at least two bills recently introduced in the Pennsylvania General Assembly introducing a new model for expanding the deployment of solar energy production in the Keystone State. Community Solar is not a technology but rather a business model that allows “community solar organizations” (community-based organizations or for-profit entities), to develop “Community solar facilities” (solar installations no larger than 3 MW under most circumstances) that have “subscribers” (individuals or businesses who pay a subscription fee to receive a specified percentage of the solar output). The subscription is transferable and provides a credit on the local electric utility bill for their subscribed portion of the output. Legislation is required because this arrangement is not contemplated by the current renewables law, the Alternative Energy Portfolio Standards Act (“AEPS Act”), 73 P.S. §§ 1648.1, et seq., or the Electricity Generation Customer Choice and Competition Act (“Choice Act”), 66 Pa. C.S. §§ 2801, et seq.,- creating new obligations for both electric distribution companies (“EDC”) and the Public Utility Commission (“PUC”).
Looking to become a motor carrier in Pennsylvania? The process is complex because you will need to comply with the regulations of the Pennsylvania Public Utility Commission (“Commission”). Whether you want to transport passengers or property, your business will have to comply with regulations addressing such topics as insurance and vehicle maintenance to name a few.
The Legal Intelligencer Names Whitney Snyder of Hawke McKeon & Sniscak as a 2019 Lawyer on the Fast Track
Harrisburg, PA – April 12, 2019 – We are honored to announce that Whitney Snyder, partner at Hawke, McKeon & Sniscak LLP (HMS), has been named by The Legal Intelligencer as a Lawyer on the Fast Track. The list is part of The Legal Intelligencer’s annual Professional Excellence Awards and highlights “the great work and achievements across the full breadth of the Pennsylvania legal community.”
The mechanic’s lien (“lien”) is a statutory mechanism that enables contractors, and sometimes subcontractors (“claimants”), who are providing services or supplies to improve a property to place a lien on that property to secure payment for their work. This is a powerful tool common to construction contractors and subcontractors, but likely is a foreign concept to most other people. The basic purpose of the lien is to provide contractors with security for the services or materials they provide – the mechanic’s lien can only be used to secure services or materials actually provided, it is not intended to be a shortcut to sue for a breach of contract or any other civil matter. But, consequences of the lien can be severe, including a sale of the property to pay off the lien. But fear not, the mere filing of a lien does not permit a claimant to sell your property as the lien must be reduced to a judgment which occurs only once a lawsuit is filed and only if the court finds for the claimant.
The Pennsylvania Public Utility Commission opened a docket this year to examine whether it should encourage or require supplier consolidated billing (“SCB”). SCB is when competitive energy suppliers, rather than the utility, bill the customer for all the services associated with their energy supply, including the utility’s distribution charges – sort of the opposite of how it happens today. The reason I suggest that SCB is “sort of” the opposite of how things are done at present, is that when utilities bill and collect for suppliers now, they normally do so under a program called “purchase of receivables” or (“POR”) where the utility bills and collects from the customer and pays the supplier – regardless of whether the customer pays the utility. The supplier pays a fee for this benefit equal to the utility’s bad debt percentage, which is known as the “POR discount”. For example, if a utility can’t collect 4% of what it charges to customers as a group, suppliers only get 96 cents on the dollar for the product they sell, even if the utility collects a larger percentage of charges to the supplier’s customers, which is often the case. However, under the proposed SCB, the supplier would be required to remit 100% of charges back to the utility and manage the entire risk of uncollectible debts on its own.