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A Pennsylvania Public Utilities Commission (PUC) Administrative Law Judge (ALJ) issued an order directing the eight municipalities, to show cause why their petition should not be dismissed.

As previously reported the municipalities’ filed a petition seeking a declaration from the PUC that opt-out aggregation of electricity supply customers by the municipalities would not constitute slamming. 

In its order the ALJ directed the boroughs to explain why the policy of municipal opt-out aggregation is not better addressed through rulemaking or legislation.

The ALJ directed that the boroughs shall address how the sought declaratory order would remove “uncertainty” (quotes by ALJ) concerning PUC rules and statute.

The boroughs, the ALJ ordered, shall also address how their sought relief, “does not abuse the due process rights of municipalities, utilities, energy suppliers and other stakeholders who are not parties to this proceeding.”

The relief sought by the municipalities has been opposed by a variety of parties including several utilities and the Office of Consumer Advocate.

Utilities who are opposed to the municipalities’ requested relief generally raised concerns about the impact on default service pricing and non-shopping customers due to the creation of opt-out aggregations. Utilities also raised customer privacy issues related to the boroughs’ request for certain customer information from the EDCs as part of implementing opt-out aggregation.

The impact on low-income customers, who generally are not authorized to shop for a retail supplier due to rate concerns, has also been raised by opponents of the municipalities’ petition and the creation of an opt-out CCA.

The Coalition for Affordable Utility Services and Energy Efficiency in Pennsylvania (CAUSE-PA), while suggesting that the legal question of opt-out aggregation be addressed first, raised concerns with the operation of the proposed CCA to the extent it is deemed lawful, citing a lack of customer protections

Excerpts From ALJ Order:

{***} As set forth in some detail in their Petition, the Boroughs wish to and adopt optout CCA program. Broadly, the Boroughs wish to design a program to acquire electricity supply on behalf of their citizens with the assistance and support of a program administrator. According to the Boroughs, they can better achieve renewable energy goals in response to the challenge of climate change. The Intervenors oppose the Boroughs proposal on a variety of grounds, including, but not limited to, the unknown impact on default service obligations, customer protections, and potential undesirable impacts on low-income citizens. Parties representing electricity suppliers argue that they already supply renewable energy products that are available to retail customers and that due to the design of the program as an “opt-out” program, they may be liable for “slamming” which is prohibited by the Public Utility Code.

That on or before November 26, 2024, the Boroughs shall file a legal memorandum that shows cause why the Petition for Declaratory Order should not be dismissed. {***}

The relief sought by the municipalities has been opposed by several parties including the utilities and the Office of Consumer Advocate (OCA).

Some utilities that are opposed to the municipalities’ requested relief raised concerns about the impact on default service pricing and non-shopping customers due to the creation of opt-out aggregations. The utilities also raised customer privacy issues related to the boroughs’ request for certain customer information from the EDCs as part of implementing opt-out aggregation.

The Coalition for Affordable Utility Services and Energy Efficiency in Pennsylvania (CAUSE-PA) raised concern about the impact on low-income customers not authorized to shop for a retail supplier.  This coalition recommended that the legal question of opt-out aggregation should more properly be addressed in a rulemaking.  The coalition also raised concerns with the operation of the proposed CCA because among other things it lacks adequate customer protections.

Excerpt from OCA Letter:

{***} Based on the parties’ discussions, the OCA submits that there are several legal questions which could possibly be resolved through dispositive motions that would either eliminate the need for a factual investigation or, at the very least, narrow the scope of such an investigation. Ultimately, it is unclear whether the Petitioners will continue to pursue declaratory relief if certain legal questions are resolved in a manner unfavorable to the Petitioners. By permitting parties to file dispositive motions while discovery is tolled, the Petitioners and answering parties could be relieved of the significant time and expense of the discovery process based on the resolution of purely legal questions. {***}

Excerpt from ALJ’s Ordering Paragraphs:

{***} The Boroughs shall specifically explain why the Commission should exercise its discretion to entertain declaratory judgment and why the municipal aggregation proposal is not better addressed by rulemaking or legislation. The Boroughs should also address how declaratory judgement removes “uncertainty” regarding the application of the Commission’s existing statutory mandate and regulations and does not abuse the due process rights of municipalities, utilities, energy suppliers and other stakeholders who are not parties to this proceeding.

Responses to the Borough’s memorandum may be filed on or before December 23, 2024. 

The Boroughs may file a motion for judgement on the pleadings on or before November 26, 2024. Replies may be filed by December 23, 2024. 

The above stated dates are in-hand dates and must be filed by with the Secretary’s Bureau by 4:30 on the dates stated. All filings must also be provided to me by email in Word format. No late filings or email will be considered. {***}

ALJ’s Order To Show Cause  (10/30/2024)
OCA’s Letter  ((10/28/2024)
P-2024-3049623 (06/20/2024)
Petition of the Boroughs of Carlisle, Hatboro, Lansdowne, Media, Narbeth, State College, and Swarthmore for a Declaratory Order regarding the Implementation of Community Choice Aggregation