An attack on state net metering programs at the Federal Energy Regulatory Commission has drawn a blizzard of opposition and barely a few flakes of support as the comment period closed Monday (June 15).
A group calling itself the New England Ratepayers Association (NERA) in April asked FERC to declare state solar net metering programs invalid, as they argue that the sales from homeowners with excess power from their rooftop panels back to their utility power distributor are “wholesale” transactions. That would make them subject to FERC jurisdiction and regulated under the terms of the Public Utility Regulatory Policies Act.
That’s a position many investor-owned utilities and their lobbying group, the Edison Electric Institute, have taken in the past. EEI took a pass on commenting on the NERA petition. NERA’s lead lawyer in the petition formerly worked for EEI and led their efforts to overturn state net metering programs.
As the comment period closed, Solar Power World commented, “More than 450 environmental and energy-justice, faith and labor groups from more than 30 states urged the Federal Energy Regulatory Commission to reject the New England Ratepayers Association’s petition seeking federal jurisdiction over state solar policies.” Significantly, no investor-owned utilities appear to have commented on the petition.
A strong common theme in the challenges to the NERA petition is that there just isn’t any reason, other than ideology, to challenge the state programs that buy back excess solar power. The clearest case is the comment by Electricity Regulation Scholars, a group of law professors. In comments written by Ari Peskoe of Harvard Law and Jim Rossi of Vanderbilt Law, the group says, “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.”
In other words, echoing a famous TV commercial of the 1980s, “Where’s the beef?”
The Peskoe and Rossi analysis also says that FERC “should find that state net metering programs are a form of retail service or retail rate design — reserved by statute to state regulators. This conclusion is consistent with widespread industry understanding. In a recent filing with the Commission, the Edison Electric Institute (EEI) characterized net metering as “part of [ ] bundled retail service.”
Similar objections came from many other comments. The National Rural Electric Cooperative Association, the co-op’s lobbying group, said, “Such generalized declaratory relief is inappropriate, because it would not terminate a controversy or remove uncertainty.’”
The National Association of Regulatory Commissioners also filed opposition to NERA’s petition. The group representing state utility regulators said, “NERA has provided absolutely no credible reasons to upend a system that rightfully falls under the jurisdiction of states. We have the support of not only our member states and industry stakeholders, but homeowners across the country also support our position.”
Supporting the NERA petition, the Heartland Institute, a conservative, climate-skeptical group generally also skeptical about renewable energy, commented, “The owners of these DG sources should be paid at the same rate conventional sources are paid, reflecting the true wholesale cost of electricity. It is particularly unfair for solar owners to be paid, rather than charged, for the costs of maintaining the grid because the intermittency of solar power actually increases grid maintenance costs.
“The United States already has plenty of other welfare programs for the upper-middle class. It does not need this one. At a time when the COVID-19 pandemic has, for all intents and purposes, effectively shut down the American economy and provoked both acute and widespread economic pain and uncertainty, asking lower-income consumers, many of whom are struggling to pay their bills, to subsidize their well-to-do neighbors is callous in the extreme.”
— Kennedy Maize