In their final word on a controversial cap of state funding for electricity efficiency investments, the Maine Public Utilities Commission split on just how you determine what’s absurd.
The case set a cap on how much the PUC can require utilities to collect for the Efficiency Maine Trust, a state agency that provides incentives for businesses and homeowners to improve their buildings’ efficiency.
The trust is directed to invest in energy efficiency with a cheaper per-kilowatt cost than buying that amount of power. The reductions in use have environmental benefits but also can defer the need for transmission and distribution upgrades that factor into customers’ rates (the efficiency investments also are factored into rates).
Why you’ve perhaps read about this missing “and.” The commissioners were split 2-1 on the decision, with former Gov. John Baldacci’s lone appointee David Littell dissenting. The dissent centered on one word in a wide-ranging energy law — “and” — that changed the baseline for setting efficiency funding. The dispute was over two options: a cap of about $59 million or a cap of about $23 million.
The similar 2-1 split on a long-term wind contract and in this case have fueled political fires, prompting allegations that partisan politics are at play and resulting in the Legislature’s Energy, Utilities and Technology Committee requesting a range of staff emails, memos and other documents written before the decision.
Those records show how commissioners viewed their role in the case. Littell thought the PUC should correct what legislative records show was a clerical error. PUC Chairman Mark Vannoy and Commissioner Carlisle McLean (both appointed by Gov. Paul LePage) argued in the order issued last week that such a correction was not the PUC’s place.
The decision hinged on interpretation of one sentence that plays on how an electricity bill is divided, into a charge for the actual power supply and separate charges for the transmission and distribution systems on which that power arrived at a building.
The law in question calls for a cap on Efficiency Maine electricity program funding to be set at 4 percent of “total retail electricity transmission and distribution sales.”
An earlier version of the bill stated the cap should be based on “total retail electricity and transmission and distribution sales,” and there’s broad agreement that’s how lawmakers understood the bill, including from the governor’s office, according to a March 11 memo from PUC staff.
But in an end-of-session rush, lawmakers didn’t read the fine print. Documents presented by request to the Legislature’s energy committee show that a key issue in the case was just when the “and” was removed from the law.
Amy Mills, a staff attorney with the PUC, said McLean questioned the timing of the clerical error in a March 12 meeting, which prompted her to amend the guidance she gave to commissioners in a March 11 memo.
Mills’ previous recommendation directed commissioners that state law would direct commissioners to ignore the clerical error, as the Revisor’s Office is “not authorized to make any substantive statutory changes.
While Mills scrubbed Section 93 as having any direct guidance for commissioners, Littell argued the legislators’ intent should still factor into commissioners’ decisions.
But Vannoy and McLean placed the blame squarely with lawmakers in their order, pointing to a legislative history showing the House and Senate reviewed and approved the bill with the missing “and.”
According to the PUC order, the massive omnibus energy bill was printed June 4, 2013, with the missing “and.” It was passed in the House the next day, in the Senate on June 7 and eventually vetoed by LePage. The bill came back to the House on June 20, 2013, earning a two-thirds majority there before doing the same in the Senate on June 26.
With the Section 93 question settled, the PUC wrangled with two major questions: clarity and absurdity.
The March 11 staff memo laid out the conditions under which the PUC should look beyond the written law to consider what the Legislature said it wanted.
Vannoy and McLean argued that the language clearly set the cap based on just the transmission and distribution revenues of utilities. Littell argued the language was not clear and should open the door for commissioners to consider what lawmakers intended.
And here we arrive at what’s “absurd.” The commissioners split most fundamentally on just how to determine what an “absurdity” is.
Vannoy’s and McLean’s opinion states that the lower cap is in line with a recommended average of $25.5 million per year recommended for the Efficiency Maine Trust to meet its goal set out in state law. That goal requires the trust to invest in all of the possible energy efficiency investments that would displace power use at a lower per-unit price than buying the same amount of electricity.
The argument echoed skepticism from PUC staff in their March 11 memo.
The lower funding cap, the commissioners argued, would not lead to an absurd result.
While that funding consideration played a role in commissioner’s decisions on the cap, the actual amounts the PUC would approve to go to the Efficiency Maine Trust would be the subject of entirely separate proceedings.
In judging what’s absurd, Littell based his opinion on an entirely different standard: how the result aligns with what the Legislature intended.
The order from the PUC is the commission’s final ruling on the case, but the arguments commissioner’s raised could undergo further scrutiny either at the commission or in court. Dylan Voorhees, clean energy director at the Natural Resources Council of Maine, said Monday he plans to confer this week with other parties opposed to the ruling and expects that a motion for the PUC to reconsider its ruling will be filed.
Meanwhile, the PUC will deliberate Tuesday on whether to approve having electric utilities build $18.5 million into rates to support Efficiency Maine’s electricity program spending in 2016.