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As reported previously, on July 1, 2024, Energywell Texas, LLC filed an appeal of Order No. 2. In Order No. 2, the Commission administrative law judge denied Energywell’s request for a good-cause exception to the Commission’s retail electric provider (REP) certification rule that prohibits an Option 1 REP’s control by or reliance on principals who were previously principals of a REP that experienced a mass transition of customers. 

In this order the Commission extends time to act on Energywell’ s appeal of Order No. 2 as permitted under 16 TAC § 22.123(a)(7)(B).

From Energywell’s Appeal:
{***}The Commission Procedural Rules state that, “Appeals are available for any order of the presiding officer that immediately prejudices a substantial or material right of a party, or materially affects the course of the hearing, other than evidentiary rulings.”2 In this instance, the ALJ’s ruling in Order No. 2 would prevent Energywell’s principals from being principals in the Texas REP, and without their experience and expertise on the application, Energywell would not meet the threshold experience requirements for obtaining a REP certificate in Texas. The ALJ’s ruling, therefore, materially affects the course of the hearing and, in effect, becomes a denial of the application before the application is processed. It also serves to exclude from the Texas market a valuable tool for retail consumer demand response that empowers customers, costs customers nothing, and provides customers protection through a fixed-price product, all without the merits of Energywell’s good cause exception even being considered. As such, Energywell may appeal Order No. 2 under 16 TAC § 22.123 and avails itself ofthat opportunity.

As stated in Order No. 2, the ALJ’s denial of the motion for good cause is based only on the following: “The ALJ does not believe the language of 16 TAC § 25.107(g)(1) contemplates any exception to its requirements such that a good cause exception could be granted.”3 The Commission’s rules, however, state that “The Commission may make exceptions to this chapter [Chapter 25] for good cause.”4 There is no limiting language in the good cause provision that would make it applicable only to certain regulations. Under the plain language of the provision, the Commission is authorized to make exceptions to any provision of Chapter 25 for good cause – including 16 TAC § 25.107(g)(1). 

It is long settled in Texas that, because they have the force and effect of statutes, administrative rules are reviewed in the same manner as statutes. 5 One of the key principles in statutory construction is that if the language in a statute is unambiguous, the court must seek the intent of the legislature as found in the plain and common meaning of the words and terms used.6 Here, the Commission’s intent in adopting 16 TAC § 25.3(b) must be found in the plain and common meaning of the words and terms used. The provision reads plainly and simply: “The Commission may make exceptions to this chapter for good cause.” Any interpretation that limits the Commission’s power or authority to make exceptions to Chapter 25 for good cause departs from the actual language of the rule and either reads into the rule language that is not there or ignores words that are there. Energywell respectfully urges the Commission to find that such an interpretation is improper and find that the Commission has the authority under 16 TAC 25.3(b) to make exceptions to any provision of Chapter 25. 

Energywell also recognizes that in citing 16 TAC § 25.107(g)(1), Order No. 2 emphasizes the first three words of the rule – “In no instance” – by placing them in italics without addressing the reason for the emphasis. The implication is that passage purportedly prevents a good cause exception to the rest of the rule. But, like the rest of 16 TAC § 25.107(g)(1), that phrase is found in Chapter 25, and accordingly is itself subject to the good cause exception found in 16 TAC § 25.3(b).

The plain and common meaning of the language used in 16 TAC § 25.3(b) grants the Commission the authority to grant a good cause exception to any provision in Chapter 25 of the Commission’s rule, including 16 TAC § 25.107(g)(1).  {***}

As reported previously, in the initial application Michael Fallquist was identified as CEO, Christian McArthur as President & COO, Roop Bhullar as CFO and Jonathan Rubensten is the General Counsel.

The following individual were listed as contacts in the application: Shane Puskar Associate General Counsel is listed as regulatory and complaint contact.  Marilee Stewart is identified as Senior Vice President – Operations and Kuldeep Dhillon is Chief Technology Office.

Order Extending Time To Act On Appeal Of Order No. 2  (07/25/2024)
Order No. 3 – Granting Intervention  . (07/16/2024)
Appeal of Interim Order No. 2  (07/01/2024)
Order No. 2 – Finding Application Deficient, Establishing Deadlines And An Opportunity To Cure, And Denying Request For Good Cause Exception  (6/20/2024)
Commission Staff’s Recommendation On Sufficiency Of The Application  (06/14/2024)
Order No. 1 – Setting Procedural Schedule, Establishing Procedures, And Entering Protective Order  (05/23/2024)
Application  (05/23/2024)
56651  (05/23/2024)
Docket No. 56651 – Application of Energywell Texas, LLC for a Retail Electric Provider Certificate.