Development of New Alternative Net Metering Tariffs and/or Other Regulatory Mechanisms and Tariffs for Customer-Generators
Nos. 25, 980, 16-576
New Hampshire Public Utilities Commission
January 24, 2017
ORDER DENYING MOTION TO DESIGNATE STAFF
ADVOCATES
Martin
P. Honigberg Chairman
In this
Order, the Commission denies the motion of the Office of the
Consumer Advocate to designate staff advocates pursuant to
RSA 363:32. That statute does not apply to this proceeding,
and the Consumer Advocate has otherwise failed to demonstrate
any reason to believe that Commission Staff cannot fairly and
neutrally advise the Commission in this docket.
I.
PROCEDURAL HISTORY
In
House Bill 1116-FN (2016), the legislature delegated its
authority to develop net energy metering tariffs to this
Commission. The legislature directed the Commission to
develop new alternative net metering tariffs, specified
factors that the Commission must consider in developing those
tariffs, and required the Commission to initially approve or
adopt a tariff within a ten month period. See RSA
362-A:9, XVI -XVII (West Supp. 2016). Pursuant to that
delegation, the Commission issued an Order of Notice on May
19, 2016, opening this proceeding. The next day, the Office
of the Consumer Advocate (OCA) filed a notice of its intent
to participate in the docket, pursuant to RSA 363:28.
Numerous persons stated their varied interests in
participating in the proceeding and were granted
intervention. Following a prehearing conference and technical
sessions, the Commission adopted an expedited procedural
schedule designed to ensure that the Commission would meet
the legislature's ten-month timetable. That schedule was
amended several times to allow the participants adequate time
to prepare their testimony and to conduct adequate discovery.
On December 21, 2016, numerous participants filed rebuttal
testimony. Commission Staff (Staff) filed the Rebuttal
Testimony of Stan Faryniarz, an expert hired to advise the
Commission. On the same date, the Commission issued an order
adopting a net metering tariff, on an interim basis, in order
to comply with the legislature's timetable. The
Commission subsequently extended the dates set for hearing to
allow the participants adequate time to prepare a more robust
record for the development of a longer-term tariff.
On
January 12, 2017, the OCA filed a "Motion for
Designation of Staff Advocates Pursuant to RSA 363:32."
The City of Lebanon and the New England Ratepayers
Association concurred without filing independent motions.
Given the need to resolve the OCA's motion quickly, the
Commission, by secretarial letter, directed any objections to
be filed by January 18. Staff, the Energy Freedom Coalition
of America, LLC (EFCA), and the New Hampshire Sustainable
Energy Association (NHSEA) all filed timely objections to the
OCA's motion. The OCA filed a letter reply to the three
objections on January 19.
The
OCA's Motion and Reply and the EFCA, NHSEA, and Staff
Objections can be found at
http://puc.nh.gov/Regulatory/Docketbk/2016/16-576.html.
II.
POSITIONS OF THE PARTIES AND STAFF
A.
The Office of the Consumer Advocate
The OCA
argues that the Commission should designate its expert, Stan
Faryniarz; its Director of the Sustainable Energy Division,
Karen Cramton; and its staff attorney, David K. Wiesner as
staff advocates pursuant to its discretion under RSA 363:32,
II. OCA Motion at 1, 5 and OCA Reply at 2. RSA 363:32
permits, and under certain circumstances requires, the
Commission to designate staff advocates "whenever the
commission conducts an adjudicative proceeding in accordance
with the provisions of RSA 541-A:31 through RSA
541-A:35." OCA Motion at 2; see also RSA 363:32
(West Supp. 2016). The effect of such a designation is to
prohibit Commissioners from communicating with staff advocate
advisors except upon notice and opportunity for all parties
to the adjudicative proceeding to participate. Once Staff
members are designated as staff advocates, communications
without the opportunity for other parties to participate are
considered to be ex parte. OCA Motion at 2; see
also RSA 363:34.
The OCA
argues that (1) "[t]his is a contentious proceeding of
high visibility" OCA Motion at 2; see also OCA
Reply at 2 ("this highly visible and controversial
proceeding") and (2) Staff and Mr. Faryniarz have
adopted "a highly controversial position in the context
of this docket." OCA Motion at 4; see also OCA
Reply at 2 ("the consultant hired by Staff has foregone
a neutral posture"); OCA Motion at 5 ("it is clear
that this is a textbook example of a situation in which
'the proceeding is particularly controversial and
significant in consequence' and 'the proceeding is so
contentious as to create a reasonable concern about
staff's role, pursuant to RSA 363:32"
quoting RSA 363:32, II).
As
evidence of the highly visible nature of this docket, the OCA
points to the number of participants (over 30) and states,
"The eyes of the nation are on this proceeding."
OCA Motion at 2. As evidence that Staff and Mr. Faryniarz
have taken a "highly controversial position, " the
OCA identifies one paragraph in Mr. Faryniarz's 136 pages
of prefiled testimony, in which Mr. Faryniarz states:
Staff recommends that the Commission consider whether the
current and near-term levels of cost-shifting are significant
enough to address at this time or rather, given the current
relatively low levels of DG resource penetration, whether an
approach based on the net metering compensation mechanism
currently in place should be sustained for the nearer term
until DG resource penetration levels increase to a threshold
(e.g., 10% of utility peak load) that might result in more
substantial cost-shifting.
Faryniarz Rebuttal Testimony at 79, quoted in OCA
Motion at 3.
The
OCA's Motion assumed and therefore did not address
whether this is an "adjudicative proceeding" to
which RSA 363:32 applies. In its reply letter, and in
response to the three objections filed, the OCA argues that
(1) the Commission has employed all of the trappings of an
adjudication; therefore, the docket must meet the statutory
definition of "adjudicative proceeding, " (2) this
cannot be a legislative-type proceeding; otherwise, the
legislature would have developed a net metering tariff on its
own instead of delegating that responsibility to the
Commission, and (3) because the OCA has assumed so far that
this is an adjudicative proceeding and has relied on the
Administrative Procedure Act and the Commission's rules,
holding now that this docket is legislative in nature would...
