Dive Brief:
- The Federal Energy Regulatory Commission on Wednesday denied a request by New England transmission owners to delay approximately $1.5 billion in refunds to their customers for transmission charges going back as far as 2011.
- In March, after 15 years of litigation, FERC ruled that the base return on equity for the transmission owners had been set too high and retroactively lowered it, triggering refunds. Eversource and Avangrid, whose utilities owe about $880 million and $203 million, respectively, filed a request for a stay pending appeal.
- “A stay pending appeal is an extraordinary remedy and is not a matter of right,” FERC ruled this week, siding with states that opposed the utilities’ request. “In order to support a stay, the movant must substantiate that irreparable injury is ‘likely’ to occur. Bare allegations of what is likely to occur do not suffice.” The deadline for the utilities to submit refunds remains May 20, 2027, it said.
Dive Insight:
FERC’s decision states that “for an injury to qualify as irreparable, it must be ‘beyond remediation,’” but the possibility of the companies’ successfully appealing the underlying order means that the potential harm they allege is not irreparable.
“On the contrary,” it states, the transmission owners say in their filings that if they are compelled to provide retroactive refunds and FERC’s decision is subsequently vacated or modified, “customers will face the prospect of future surcharges or repayment obligations to recover amounts returned prematurely.”
“This statement indicates the possibility that corrective relief is available,” FERC said.
In its most recent quarterly filing to the U.S. Securities and Exchange Commission, Eversource said that based on the FERC refund decision, it has “estimated a range of reasonably possible pre-tax losses of $60.4 million to $932 million, which includes a range of interest of $28.8 million to $256 million, as of March 31, 2026.”
“The low end of the estimated range of loss reflects estimated refunds associated with the fifteen-month first complaint period, including interest,” it said. “The high end of the estimated range of loss includes the refunds associated with the first complaint period, as well as estimated refunds for the retroactive refund period from October 16, 2014 through March 19, 2026, including interest, in the pre-tax amount of approximately $871 million.”
Other entities affected by FERC’s decision to lower the ROE include Emera Maine, Green Mountain Power, Unitil, Vermont Electric Power Co., Vermont Transco and PPL’s Rhode Island Energy.
On April 14, the utilities filed a separate request for a stay at the U.S. Court of Appeals for the District of Columbia. That court has not issued a ruling yet.
On April 30, about six weeks after FERC lowered their return on equity to 9.57%, Eversource, Avangrid and other New England transmission owners asked the commission to increase it to 11.39%.
