A ploy by a surreptitious group of New England utilities to undercut solar net metering blew up and crashed at today’s Federal Energy Regulatory Commission like the Hindenburg explosion in New Jersey in May 1937. The commission unanimously dismissed a petition by New England Ratepayers Association that would have given FERC exclusive jurisdiction over state solar net metering rules, putting a potential roadblock to the spread of solar photovoltaic generation.
Without going much into the issue of whether net metering sales back to the utility grid are wholesale transactions, the commission largely shot down the petition on procedural grounds. Many of those who commented on the petition, and the opposition was overwhelming, essentially echoed the old Wendy’s advertisement, “Where’s the beef.”
As comments written by Ari Peskoe of Harvard Law and Jim Rossi of Vanderbilt Law said, “NERA’s filing does not seek to ‘terminate a controversy or remove uncertainty.’ The Commission should not allow NERA to manufacture uncertainty by claiming that settled Commission policy, relied on within the past year, ‘was never correct.’ Reaching the merits of this petition would open the floodgates to academic petitions that are not grounded in any actual dispute or concrete proposal.”
Commission Chairman Neil Chatterjee noted that the petition depends on no “specific facts and circumstances. The petition does not identify a specific issue or harm.”
The Advanced Energy Economy business group praised the FERC dismissal of NEPA’s petition. Jeff Dennis, AEE’s general counsel and managing director, said, “The Commission appropriately declined to upend decades of its own precedent, and the state energy policies in place in over 40 states and utilized by over 2 million retail electricity customers that rely on that precedent, based on a set of hypotheticals and generic grievances that failed to provide any facts or circumstances that would support massive federal preemption of state law.”
The commission also adopted updated rules on implementing the 1978 Public Utility Regulatory Policies Act. In a press release, Chatterjee said, “While PURPA laid the foundation for the competitive wholesale power markets that we have today, the energy landscape in this country has changed drastically since the Commission implemented these regulations four decades ago.”
Today’s final rule was the result of a process that began with a notice of proposed rulemaking in September 2019.
The vote was 3-1, with Richard Glick in dissent.
— Kennedy Maize