On April 14, a group called the New England Ratepayers Association (NERA) filed a petition with the Federal Energy Regulatory Commission (FERC) calling on the Commission to supersede all state-level net metering program and make the mechanism federally-controlled.
In response, The Center for Biological Diversity has filed a Freedom of Information Act (FOIA) request seeking records of FERC’s communications with NERA and the historically anti-net metering attorney representing the group.
The original NERA filing calls for retail net metering to be structured in a similar fashion to facilities compensated under the Public Utility Regulatory Policies Act of 1978 (PURPA) or the Federal Power Act (FPA):
NERA files this Petition for Declaratory Order requesting that the Commission (1) declare that there is exclusive federal jurisdiction over wholesale energy sales from generation sources located on the customer side of the retail meter, and (2) order that the rates for such sales be priced in accordance with PURPA or FPA, as applicable.
NET metering faces an old foe
While this is a troubling development, it’s not a new one. NERA is represented by Steptoe & Johnson LLP, with one of the attorneys listed on the petition being David B. Raskin. Raskin has been calling for FERC control of net metering for the better part of the last decade, previously on behalf of the Edison Electric Institute. In 2014, Raskin hosted a talk at Edison Electric Institute’s Spring Legal Conference titled Federal Regulatory Issues: Are Net Metering Transactions within FERC or State Jurisdiction?
Edison Electric Institute has stated that it is not a current client of Raskin’s and is not involved at all in this petition.
As for the petition, it calls on FERC to set a federal net metering compensation rate because the group claims that current net metering program compensations provide a greater cost to the utility – and therefore ratepayers – than the avoided cost of an electrical system devoid of distributed generation. This is an argument that has been made previously by utilities and, oh yeah, by Raskin in a 2014 briefing for an Edison Electric Institute affiliate: Net Energy Metering: Subsidy Issues and Regulatory Solutions.
Reactions and action
It did not take long for this filing, as well as NERA’s ties to Raskin and the Edison Institute, to draw the attention of renewable energy advocates. Leading the charge came Ari Peskoe, director of the Electricity Law Initiative at Harvard University, who took to twitter to put the filing on blast (thread):
Utility-aligned group asks FERC to assert jurisdiction over sales from behind-the-meter resources when output exceeds demand or where energy is "designed to bypass" customer load – https://t.co/6kLNkDU4sR –
In other words, the group seeks to end net metering as we know it.
— Ari Peskoe (@AriPeskoe) April 16, 2020
In the thread, Peskoe calls the timing of the filing “outrageous,” asserts that no new case developments have been made since the last time that Raskin raised this issue and accuses the Edison Electrical institute of attempting to “Hide behind this group calling itself a ‘Ratepayers Association’ that somehow has the same lawyers as EEI and major utilities.”
As for the Center for Biological Diversity’s FOIA request, while those who file a request aren’t required to include their need for the records, it was provided by Howard Crystal, legal director of the Center’s Energy Justice Program.
“The public has the right to know if FERC is collaborating with anti-solar utility or industry groups to undermine the move to clean energy. It’s despicable that this shadowy group is using this moment of a national emergency to launch an all-out attack on a crucial clean energy policy. We need to see who’s behind this effort.”
The Center then goes on to cite the flagship argument against NERA’s petition, the same one raised by Peskoe, that if the measure were to be approved, the deployment of rooftop and community solar could be threatened.
The Center also raises similar concerns to Peskoe, putting forth that the petition is founded upon “Thoroughly debunked industry talking points that solar customers are unfairly subsidized, ignoring both the enormous subsidies given to the fossil fuel industry and distributed clean energy’s power to curb pollution, improve the grid and otherwise advance the vital clean energy transition.”