Lawyers representing the New England Ratepayers Association (NERA) on Tuesday filed their response to the almost 50,000 comments opposing the group's petition to federal regulators to effectively upend net metering policies nationwide.
In their response, the group defended itself against assertions that utility or other industry interests were behind the petition. "NERA is a ratepayer advocacy organization," the attorneys wrote. "It filed its Petition because ratepayers are being required to pay as much as 20 cents per kilowatt-hour for energy that can be purchased on the market for three cents." They argue broadly that opponents give the Federal Energy Regulatory Commission no legitimate grounds for dismissal or denial of the petition.
- Tuesday's filing also provides an affidavit from one of NERA's 15 members — Geoffrey Mitchell, who says he is a member because he is an electric customer of Unitil. But Mitchell is also president and founder of Brant Energy, a consulting firm that works for nearly a dozen electric power companies, including National Grid, Eversource and DTE Energy, consumer advocacy group Public Citizen found. NERA says Mitchell is "essentially retired."
NERA has generated significant attention in the power sector with its April petition asking FERC to declare "exclusive" jurisdiction over behind-the-meter energy generation.
Bipartisan groups of state legislators, regulators, attorneys general, governors and other officials filed almost 100 comments in opposition. Advocacy groups, legal experts and academics filed over 500 comments, while almost 50,000 individuals also commented on the filing, all in opposition to the proposal.
Meanwhile, just 21 groups filed in support, 15 of which echoed comments written out by the Heartland Institute.
Net metering compensates customers who have rooftop solar or some other form of behind-the-meter resource for the energy it provides to the grid. Opponents of the practice say it can overcompensate distributed resource customers, leaving remaining customers to absorb the additional costs. The focus of the petition, however, is not on the merits of net metering, but whether FERC should have jurisdiction over those sales.
Opponents of the NERA petition argue that FERC has already declined to regulate net metering as a wholesale sale in previous cases, making the federal net metering policy that gives states jurisdiction over the practice 20 years old. Further, transactions between behind-the-meter customers and utilities do not constitute an interstate transmission of energy that would require FERC to exercise its jurisdiction. Opponents also argued that behind-the-meter sales are retail, not wholesale sales.
Other groups responding to NERA's petition argued for the merits of net metering itself, and criticized the group for not being transparent about its membership.
NERA's response to the near unanimous opposition, led by attorneys David Raskin and Richard Roberts of Steptoe & Johnson, criticized several groups for making arguments that fall outside what they say is NERA's core argument — that FERC, not states, should have legal jurisdiction over net metering.
Net metering "overcharges, hidden from consumers in retail rates, amount to billions of dollars per year and are growing," the attorneys said. Further, the group argued that defining net metering as a retail transaction "misrepresent[s]" previous FERC rulings.
Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, who also filed comments opposing the NERA petition, said the group's reply "badly mischaracterizes its opponents' arguments and therefore is not informative."
"I have faith that the attorneys at FERC will review NERA's initial petition and the numerous responses in opposition, and FERC will issue an order based on what's actually in the filings," he told Utility Dive in an email.
NERA also addresses arguments against the group's legitimacy as a ratepayer advocate — Public Citizen found the group totals 15 members, 10 of which pay $20,000 in annual dues, and five pay $5,000 per year, and therefore argued it likely does not represent the interests of everyday ratepayers.
The NERA attorneys called these arguments "noise, unsupported in any legal principles" and included an affidavit from one of its members, who said he is part of the group "because it is an advocate for the interests of electric customers like myself."
"As a customer of Unitil, I am directly affected by the adoption of regulatory policies that allow some utility customers to shift costs to other customers, resulting in higher rates for the latter," Mitchell said in the affidavit. "I do not participate in any net metering program and am therefore directly and adversely affected where net metering is used to shift costs from customers who are net metering participants to customers who are not."
Public Citizen argued that because Mitchell is the president of a consulting company that works directly with utilities it "undermines NERA's credibility as an organization representing ratepayer interests … NERA is using the fake moniker of a ratepayer protection group to mask its true financial interests behind its Petition," Tyson Slocum, director of Public Citizen's Energy Program wrote in reply comments to NERA's petition.
NERA President Marc Brown dismissed Public Citizens' comments as a "distraction" from the issue at hand.
"Public Citizen and many of the opponents to our petition have no interest in addressing the legal questions pertaining to FERC's jurisdiction over net metering sales but choose to engage in ad hominem and specious attacks as a distraction," he told Utility Dive in an email. "Like hundreds of other ratepayers throughout New England, Mr. Mitchell is an individual member of NERA, and is essentially retired. His past work in the energy industry is the source of his interest in our work, and he is a staunch advocate for ratepayer rights and fair treatment."
Slocum maintains that the group uses the ratepayer "shtick" as a "shield ... because classifying its lobbying and regulatory advocacy as a generic 'ratepayer' has a far more effective connotation than lobbying as a corporation or through a corporate trade association."
"NERA is engaged in deceit — pure and simple," he told Utility Dive in an email.