News Stories

In response to parties filing an appeal (CPLR Article 78 proceeding) of the New York Public Service Commission’s (PSC’s) order, the New York Supreme Court for the County of Albany, NY issued a temporary restraining order staying the implementation of the PSC’s April 2024 order on rehearing adopting rules for the registration and regulation of retail energy brokers and consultants.

Parties filing the appeal includes the New York Retail Choice Coalition (NYRCC) and M&R Energy Resources Corp. 

A written version of the temporary restraining order was not immediately available.
See Albany Supreme Court Index No. 907244-24

Excerpts from verified appeal, in the form of a CPLR Article 78 proceeding:

[***]
Petitioners brings this proceeding, pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”), CPLR 3001 and State Administrative Procedure Act (“SAPA”) § 205 to seek an Order and Judgment staying enforcement of, and reversing, annulling, vacating, and/or setting aside the Declaratory Ruling and Order on Rehearing issued April 18, 2024 (“April 2024 Order”) and the underlying Order Adopting Energy Broker and Energy Consultant Registration Requirements (“June 2023 Order,” or “June Broker Regulation Order,” and with the April 2024 Order, “Broker Regulation Orders”) issued on June 23, 2023 by the Commission. A true and accurate copy of the aforementioned order are attached as Exhibit A and B respectively. 

Petitioners submit that this Court should find that the Commission’s issuance of the Broker Regulation Orders was in violation of procedural requirements of the State Administrative Procedure Act (“SAPA”) Petitioner’s due process rights, was affected by errors of law, and was arbitrary and capricious. Accordingly, Broker Regulation Orders should be set aside. 

Pursuant to CPLR 7805, Petitioners further seek a stay enjoining enforcement of the same.

As reported previously, the New York Retail Choice Coalition (NYRCC or Coalition) and M&R Energy Resources Corp. informed the PSC that on July 29 NYRCC/M&R filed, in the Supreme Court for the County of Albany, their appeal challenging the PSC’s April 2024 broker regulation rehearing order and the PSC’s original June 2023 broker regulation order.

NYRCC filed a petition arguing that the PSC’s rulings concerning the financial requirements for broker registrations do not comply with the statutory language which NYRCC says compels the PSC to allow the use of bonds for the security required under the registration. As previously reported, the PSC has rejected the use of bonds as a form of security for brokers and is requiring brokers to post a letter of credit. 

The broker order specifically requires brokers to post a $100,000 irrevocable standby letter of credit for registration ($50,000 for consultants).

While PSL §66-t states that, “An energy broker or energy consultant shall register with the commission authorizing such registered energy broker or energy consultant to act as an energy broker or energy consultant in a manner prescribed by the commission; provided that such: (i) energy broker demonstrates financial accountability as evidenced by a bond or other method of financial accountability in an amount not less than one hundred thousand dollars; and (ii) energy consultant demonstrates financial accountability as evidenced by a bond or other method of financial accountability in an amount not less than fifty thousand dollars,” the PSC has interpreted this provision as providing the PSC with the discretion to determine the acceptable financial instruments.”

With that appeal filed, NYRCC/M&R again requested an extension of the July 31, 2024, deadline for broker registration and other compliance activities.

The Secretary of the PSC, acknowledging the forthcoming appeal as it had been cited in comments by NYRCC, had already rejected a similar request for a further extension beyond July 31, 2024.

In its filing to the Commission NYRCC/M&R continued to seek an extension of the deadlines, “until the later of 60 days after the Albany Supreme Court has issued a ruling on the Article 78 Petition.”

Separately, several brokers/consultants requested extensions of the July 31 registration deadline because they need more time to obtain a letter of credit LOC).  Many of these entities stated that they have filed with the NY PSC all other application documents as required under the broker registration process except for the LOC.  

Excerpts from NY PSC Granting/Denying LOC Extension Requests:
[***] “Please Take Notice that an extension until September 30, 2024, is granted for filing the required letter of CASES 23-M-0106 et al. – 3 – credit to the Energy Brokers and Energy Consultants that filed their LOC extension request on or before July 29, 2024. This extension is limited to filing the letter of credit and is limited to the entities whose requests were filed on or before July 29, 2024. This limited extension is granted to promote the fair, orderly, and efficient conduct of these proceedings. All requests submitted after July 29, 2024, seeking an additional extension of time to file all or part of the required registration packages are denied as untimely. All such requests submitted after July 29, 2024, are denied, even if they are not listed above.1”
[***]

NY PSC Notice Concerning Letter of Credit Extension Requests  (07/31/2024)
Letter Informing PSC of NY Supreme Court Filing   (07/29/2024)
NY Supreme Court of Albany Verified Article 78 Petition  (07/29/2024)
Request for Extension of Time  (06/03/2024)
23-M-0106
In the Matter of Commission Registration of Energy Brokers and Energy Consultants Pursuant to Public Service Law Section 66-t. 

See also: 15-M-0180
In the Matter of Regulation and Oversight of Distributed Energy Resource Providers and Products.

See also New York Albany Supreme Court Index No. 907244-24
M&R Energy Resources Corp. et al v. New York State Public Service Commission – Special Proceedings – CPLR Article 78