NY considers ESCO reforms

New York utility regulators have launched consideration of reforms to how retail electricity suppliers called energy service companies or ESCOs operate in that state.  A December 2, 2016 notice issued by the New York Department of Public Service describes a history of "substantial overcharges and deceptive practices by the ESCO industry harming New York consumers," and establishes a process to "push ahead with reforms to ensure that ESCOs provide useful, value-added, economical services to New York consumers."  New York's ESCO reform process will play out in conjunction with other state initiatives, such as the Reforming the Energy Vision program.

As described in the Notice of Evidentiary and Collaborative Tracks and Deadline for Initial Testimony and Exhibits, the New York Public Service Commission initially opened up the energy services market to retail competition "to spur innovation in the creation of value-added products, particularly energy efficiency services that regulated rates may not provide, and to create commodity price competition that would result in efficiencies."  The notice summarizes the regulatory philosophies driving the historic decision to separate monopoly services (transmission and distribution) from competitive services (energy commodity), and the expectation that robust competitive markets would yield societal benefits.

But based on its "considerable experience with the offering of retail service to mass market customers by ESCOs," in 2014 the Commission determined "that the retail markets serving mass-market customers are not providing sufficient competition or innovation to properly serve consumers."  In the Commission's view, its subsequent efforts to realign the retail market have not succeeded: "customer abuses and overcharging persist, and there has been little innovation, particularly in the provision of energy efficiency and energy management services.  Commodity price differentiation has not worked, and the market for differentiated services is immature or non-existent."

For these reasons, on December 2, 2016, the Commission gave public notice that it "continues to examine measures that must be taken to ensure that these customers receive valuable services and pay just and reasonable rates for commodity and other services."  Among the measures identified for consideration by the Commission are:

• whether ESCOs should be completely prohibited from serving their current products to mass-market customers;
• whether the regulatory regime, rules and Uniform  Business Practices (UBP) applicable to ESCOs need to be modified to implement such a prohibition, to provide sufficient additional guidance as to acceptable rates and practices of ESCOs, or to create enforcement mechanisms to deter customer abuses and overcharging, including whether the Commission decision not to subject ESCOs to Article 4 of the Public Service Law should be revisited; and
• whether new ESCO rules and products can be developed that would provide sufficient real value to mass-market customers such that new products could be provided to them by ESCOs in the future in a manner that would ensure just and reasonable rates.

To pursue these efforts, the Commission established two procedural tracks.  An evidentiary track will consider the first two bullets listed above, while a "collaborative" track will focus on the third bullet. 

The Commission has previously described ESCO reforms as supportive of New York's Reforming the Energy Vision initiative, a comprehensive revisioning of the state's electricity sector.  In a February 2016 order, the Commission noted, "Development of markets in which vendors offer innovative services of value to consumers, and in which consumers can participate with confidence, is critically important to the success of the Reforming the Energy Vision (REV) initiative. Retail energy markets focused on commodity-only products, and in which ESCOs do not meet expectations of many customers, will thwart these objectives."

Initial pre-filed testimony and exhibits for the Track I evidentiary case on ESCO reforms are due on or before April 7, 2017.

NH regulation of solar PPAs, leases

As distributed energy resources like solar panels become more widely adopted, how do typical solar business models like solar power purchase agreements or solar leases match up to state utility laws?  While the answer may vary from state to state, an order issued by the New Hampshire Public Utilities Commission earlier this year found found that offering solar power purchase agreements or solar leases to customers in New Hampshire would not subject a solar company to Commission regulation under any of several theories.  The order finding no regulation required is consistent with other state policy and precedent supporting distributed generation, and could be a model for other states.

Federal law controls some many aspects of the U.S. electricity industry, but states can and do regulate public utilities and competitive electric power suppliers.  Knowing who these state-regulated utilities and suppliers were was straightforward under the dominant utility models of the twentieth century.  But as new technologies like solar photovoltaic panels or other distributed energy resources become more widely adopted, and new business models like solar power purchase agreements and solar leases arise, their regulatory status can be uncertain.  If a solar company installs solar panels on a customer's roofs, and sells that customers the power produced, will it be regulated like a public utility or supplier under state law?  What if the company leases the panels to the customer?

The New Hampshire Public Utilities Commission recently addressed these questions in answering a 2015 petition by Vivint Solar, Inc.  In that petition, Vivint asked the New Hampshire Public Utilities Commission for a declaratory ruling that it would not regulate Vivint as a public utility, competitive electric power supplier, or limited producer of electrical energy under state law, for offering solar power purchase agreements or solar leases to residential customers in New Hampshire.

In a January 15, 2016 order -- Order No. 25,859 -- the Commission granted Vivint's petition.  First, the Commission noted the value of regulatory certainty:

We believe it is important for a party planning to do business in the state to have a vehicle through which it may clarify its regulatory status prior to entering the marketplace, provided that it can describe in sufficient detail its business plans and practices and these plans and practices are not hypothetical or speculative.

Next, the Commission concluded that the operations described by Vivint would not constitute sales to or for the "public" within the meaning of the statutory definition of "public utility."  Key factors recited in the order included the "conditional nature and relative complexity of Vivint’s relationships with its customers."

The Commission then analyzed its rules regarding competitive electric power suppliers, concluding that although Vivint might meet the regulatory definition of a supplier, that definition "should not be read in isolation but in the context of the overall purpose and effect" of the rules in their entirety.  The Commission then noted that those "Puc 2000" rules "seem intended to regulate  a set of relationships and related transactions that is quite different from those undertaken in the context of customer-sited, behind-the-meter, distributed generation development involving sales of electricity directly to the host customers pursuant to the terms and conditions of PPAs."

Finally, the Commission concluded that neither Vivint's PPAs nor solar leases should be subject to Commission regulation under the New Hampshire Limited Electrical Energy Producers Act.  The Commission interpreted that act's retail sales provisions "as applicable to sales of electricity off-site from the generation facilities," not "on-site and behind-the-meter" sales of power as contemplated by Vivint.

The New Hampshire Public Utilities Commission noted that while the petition and briefs in the case focused on the residential solar energy market, its analysis and conclusions "would not be different if the relevant customers were non - residential, assuming that the Systems were installed on the customers’ premises behind the utility retail electric meter, we re sized no larger than necessary to meet the customers’ reasonably anticipated electric consumption, and involved sales of electricity directly to the host customer or leases of the installed Systems to the host customer."

While the ruling technically applies to the company and facts asserted in the petition, it confirms the possibility of an important role for third-party involvement in distributed generation.