On July 8, 2017, The Pennsylvania Bulletin published a notice that the Pennsylvania Public Utility Commission (“PUC” or “Commission”) is seeking comments from stakeholders regarding electric distribution companies’ (“EDCs”) tariff provisions concerning the resale/redistribution of electric power to third parties.  Specifically, the PUC seeks comments regarding how those provisions would impact the operation and viability of electric vehicle (“EV”) charging stations.

Background on EVs in Pennsylvania

Over the past couple of years, the Commonwealth has witnessed an uptick in the number of registered EVs (rising from 1,653 vehicles in 2013 to around 3,600 EVs in 2016).  Although EVs continue to become more pervasive across the State, only 623 EV charging stations remain available to the public for recharging EV batteries.  As a result, the PUC believes all parties should take steps to foster increased investment in EV charging infrastructure across the State.  Accordingly, the PUC seeks comments from affected parties, particularly EDCs, on tariff provisions that account for EV charging stations.

Current Regulatory Framework Impacting EV Infrastructure

EV charging station owners purchase electricity from EDCs and resell that power to EV drivers with the goal of earning a profit from that sale.  The PUC believes that the current regulatory framework may restrict the ability of EV charging stations to earn a profit, which in turn would serve as a barrier to entry to this market.  Specifically, the PUC is concerned with Section 1313 of the Public Utility Code, 66 Pa. C.S. § 1313 (relating to price upon resale of public utility services), and EDCs’ tariff restrictions on resale/redistribution of purchased power.

Section 1313 indicates that an entity cannot resell power “to any residential customer” in an amount that exceeds what the EDC would bill its own residential customers for the same quantity of service under the EDC’s existing tariff.  On its face, this provision wouldn’t appear to impact an EV charging station owner because it resells power to an EV driver, not a residential customer. However, when viewed in connection with resale/redistribution provisions of EDCs’ tariffs, the PUC avers that Section 1313 may actually serve as a barrier to entry in this market by restricting EV charging stations’ ability to profit from sales of electricity to EV drivers.  EDCs’ tariffs vary widely and not all those tariffs address resales of power by a third-party EV charging station operators to EV drivers.  Further, some tariffs broadly permit the resale of power as long as it is compliant with 66 Pa. C.S. § 1313.

PUC Request for Stakeholder Comment on Potential EV Tariff Provisions

Because EVs continue to become more pervasive in Pennsylvania, the PUC believes all parties should take steps to foster increased investment in EV charging infrastructure.  As a result, the PUC seeks comments from affected parties, particularly EDCs, on the following topics:

  • What restrictions, if any, each EDC’s existing tariff places on the resale/redistribution of electric power by third-party EV charging.
  • The advantages and disadvantages of specific tariff provisions permitting unrestricted resale/redistribution of electric power when done for the purpose of third-party EV charging.
  • Whether it is appropriate to encourage EDCs across the state to move toward a tariff design which includes provisions permitting the resale/redistribution of electric power for third-party EV charging.
  • What other resale/redistribution tariff provision designs may aid in establishing clear rules for third-party EV charging stations.
  • What other regulatory options may aid in establishing clear resale/redistribution rules for third-party EV charging stations.

Comments on this issue are due to the Commission on August 22, 2017.  If you have any questions on this matter, please do not hesitate to contact any member of McNees’s Energy & Environmental Group or McNees’s Transportation, Distribution, and Logistics Group.

Over the past few years, more businesses have begun to incorporate sustainability initiatives into their corporate cultures.  However, because energy costs represent a significant portion of a business’s operating costs, it is crucial to ensure that investments in renewable energy options align well with a business’s operations and budget.  Recently, McNees attorney Susan Bruce wrote an article on smart procurement strategies for businesses interested in pursuing sustainability goals while minding their energy costs.  If your company is interested in learning more about potential vehicles for renewable options, we encourage you to view Susan’s article and contact her with any questions at sbruce@mcneeslaw.com.  

As discussed in our blog post last summer, the Pennsylvania Public Utility Commission (“PUC” or “Commission”) has been investigating the potential benefits of adopting alternative ratemaking methodologies over the past two years.  The PUC believes this proceeding will reveal: (i) whether other rate mechanisms may encourage utilities to better implement energy efficiency and conservation programs; (ii) whether such rate mechanisms are just and reasonable and in the public interest; and (iii) whether the benefits of implementing alternative rate mechanisms outweigh any associated costs.  As part of this proceeding, the PUC examined several forms of alternative ratemaking, including revenue decoupling, lost revenue adjustment mechanisms, and straight fixed/variable pricing, and invited members of the Commonwealth’s energy community to testify and file Comments on the merits of these proposed ratemaking methodologies.  Many of these proposed ratemaking methodologies, particularly revenue decoupling, generated spirited debate among members of the Pennsylvania energy industry.

After considering stakeholders’ initial Comments, on March 2, 2017, the Commission issued a Tentative Order indicating it will continue its “investigation into alternative ratemaking by seeking comments on, and potential processes to advance, alternative rate methodologies that address issues each utility industry is facing.”  The PUC acknowledged that not all rate methodologies and performance incentives are applicable to each type of utility or all utilities within a particular utility type.  Accordingly, the Commission issued a series of questions tailored to electric distribution companies, natural gas distribution companies, and water and wastewater utilities to assess the reasonableness and efficacy of employing certain rate methodologies tailored to each kind of utility under the PUC’s existing statutory authority.  The PUC asks these utilities to highlight what, if any, alternative rate methodologies could or should be used, and requests those utilities to denote the advantages and disadvantages of these approaches.  The Commission also requests that utilities denote the effects of proposed alternative rate methodologies on small and large customers across various rate classes.

Interested stakeholders have until Monday, April 17, 2017 to submit Comments on the PUC’s March 2, 2017 Tentative Order.  Once all Comments are filed, individuals will have until May 16, 2017, to submit Reply Comments addressing assertions made by other commenting parties.  If you are interested in submitting Comments on this issue, please contact Pamela Polacek (ppolacek@mcneeslaw.com), Alessandra Hylander (ahylander@mcneeslaw.com), or any other member of the McNees, Wallace, & Nurick, LLC, Energy and Environmental Practice Group.

A recent decision by the Pennsylvania Public Utility Commission (“PUC” or “Commission”) confirms that Pennsylvania public utilities with combined sewer systems (i.e., systems that collect both sewage and stormwater) may incorporate stormwater charges in their service charges.  While some public utilities have already been incorporating stormwater collection charges in their sewage rates, not all utilities have carried forth this practice.  As a result, this decision could increase sewage rates for some large commercial and industrial customers experiencing significant stormwater flows.

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On March 30, 2016, the Pennsylvania American Water Company (“PAWC”) and the Sewer Authority of the City of Scranton (“SSA”) filed an Application with the PUC to permit PAWC to purchase the SSA’s combined sewer system.  As indicated above, combined sewer systems collect sewage and stormwater, so the PUC’s disposition of this Application would clarify the ability of a Pennsylvania public utility to include stormwater charges in its wastewater service rates.  Although Administrative Law Judges David A. Salapa and Steven K. Haas recommended that the PUC reject the proposed Application, the PUC approved it on October 19, 2016.

As a result of the PUC’s approval, statutory enabling legislation was required.  Senate Bill No. 881 was revived and amended to make necessary changes to the Public Utility Code.  Specifically, the Bill amends the Public Utility Code to change the reference of “sewer” to “wastewater,” and expanded the definition of wastewater to include certain “stormwater.”  This bill passed both chambers [October 26 (Senate) and October 27 (House)] and was signed by Governor Wolf.

The Bill provides as follows:

Wastewater.  Any used water and water-carried solids collected or conveyed by a sewer, including:

(1)  Sewage, as defined in Section 2 of the act of January 24, 1966 (1965 P.L. 1535, No. 537), known as the Pennsylvania Sewage Facilities Act.

(2)  Industrial waste originating from an establishment.  For the purposes of this paragraph, the terms “industrial waste” and “establishment” shall be as defined in Section 1 of the Act of June 22, 1937 (P.L. 1987, No. 394), known as the Clean Streams Law.

(3)   Infiltration or inflow into sewers.

(4)   Other water containing solids or pollutants.

(5)  Storm water which is or will become mixed with waters described under paragraph (1), (2), (3) or (4) within a combined sewer system.

The term does not include storm water collected in a Municipal Separate Storm Sewer, as that term is defined by 40 CFR 122.26(b)(8) (Relating to storm water discharges (applicable to state NPDES programs, see § 123.25)), that does not flow into a combined sewer system.

This legislation, now codified as PA Act 154, allows Pennsylvania utilities providing wastewater service to include, in certain cases (i.e., combined sewer systems), stormwater charges into rates.  While some Pennsylvania municipal wastewater service providers (e.g., Philadelphia Water Department) have been including stormwater charges in wastewater rates for some time, it will be much more commonplace with PUC-regulated service providers with this new legislation.

Earlier this year, the U.S. Supreme Court issued a decision in Federal Energy Regulatory Commission v. Electric Power Supply Association (“EPSA“) that significantly impacts members of the electricity industry.  In EPSA, the Court affirmed the Federal Energy Regulatory Commission’s authority to regulate demand response practices in wholesale power markets.  The Court also upheld the formula the Commission uses to set compensation for customers who curb their power consumption at the behest of system operators.

This decision holds many implications for members of the electricity industry, and will likely prompt an uptick in demand response participation in wholesale energy and capacity markets.  For more information about the implications of the EPSA decision, please click here  to watch a podcast by Robert Weishaar, Jr., Chair of McNees Wallace & Nurick’s Energy and Environmental Law Group.  Mr. Weishaar’s video provides a detailed overview of the case and discusses its short- and long-term implications for members of the power industry.

Since its adoption on September 6, 2015, the federal Clean Power Plan (“CPP”), the United States’ first comprehensive rule for lowering greenhouse gas emissions, has been a topic of simultaneous praise and criticism.  With respect to the impact of the CPP on future electricity costs, there are also significant differences of opinion.  Although the Environmental Protection Agency (“EPA”) acknowledges CPP compliance costs of $8.4 billion per year, the EPA contends that the CPP will encourage energy efficiency programs and switching to lower cost fuels that could eventually result in lower electricity costs for consumers.  By contrast, non-governmental organizations such as the National Economic Research Associates (“NERA”) estimate compliance costs at approximately $33.5 billion per year and predict an electricity cost increase of between 12 and 17%.  In light of such varying predictions related to the impact of the CPP on electricity costs, large consumers of electricity should, at a minimum, pay close attention to individual state implementation plan proposals to assess how these specific proposals may affect their electricity costs.

In addition to the questions associated with the CPP’s impact on future electricity costs, the future of the CPP is also subject to significant uncertainty.  On February 9, 2016, the United States Supreme Court issued a stay of the CPP preventing the EPA from enforcing the CPP until legal challenges are resolved by the federal courts.  As a result, the Supreme Court will not review the CPP until late 2017 or 2018.

The composition of the Supreme Court at that time will likely be the deciding factor regarding the CPP’s fate.  Specifically, since the death of Justice Antonin Scalia, the Supreme Court is considered to have four conservative Justices and four liberal Justices.  As a result, the upcoming Presidential election will almost assuredly determine whether or not the CPP will be upheld.  A President Hillary Clinton likely means a fifth liberal justice and the CPP surviving challenge at the Supreme Court.  A President Donald Trump likely means a fifth conservative justice and rejection of the CPP by the highest court.

Whether or not the CPP is upheld by the Supreme Court, however, the push by some for greenhouse gas reductions will continue.  The United States is now subject (as part of the Paris Agreement) to an international commitment to lower its greenhouse gas emissions by 26 to 28 percent from 2005 levels by 2025.  In addition, a number of states have adopted legislation and regulations to address climate change solutions or combat greenhouse gases directly.  For example, Pennsylvania’s Climate Change Act of 2008 requires Pennsylvania’s Department of Environmental Protection (“DEP”) to draft a Climate Change Action Plan that identifies greenhouse gas emissions baselines and recommends legislative changes to reduce greenhouse gas emissions in the Commonwealth.  Other states, such as California, have more aggressive and binding ambitions.

If you have any questions regarding the CPP or state proposals for reducing greenhouse gas emissions and the impact on electricity pricing, please do not hesitate to contact us.