Advocates, utilities grapple with PUC investigatory powers
With new ground rules on policy and rulemaking, ‘everything is precedent-setting’
In a little-known but powerful corner of state government, a fight is brewing.
The NH Public Utilities Commission, which makes consequential energy decisions and regulates the state’s utilities, has opened several new investigations as a means of gathering information to inform policy. The move is meant to address concerns that the body is not collaborative and indicates a new direction for the court-like entity. But its investigations are facing pushback from advocates, the utilities and even the Department of Energy.
The investigations aren’t binding, but Consumer Advocate Don Kreis has criticized the PUC’s new direction, arguing it is work the new Department of Energy should be doing. The state’s utilities have argued the same.
At stake is how the state creates energy policy at a time when ratepayers around the state are feeling the strain of soaring energy prices.
Also at stake are precedents established in the wake of the creation of the Department of Energy, formed through 2021 legislation. The PUC is independent of that department but administratively attached. Proponents of the reorganization argued the change was important to resolve a conflict that had long been inherent at the PUC, where staff were both advocating for policy and advising commissioners who ultimately hold decision-making authority. Those staff positions were then moved to the Department of Energy, but that’s left the commission without advisers.
According to past commissioner Kate Bailey, the PUC makes its worst decisions when it lacks staff advice. Energy policy is technical and complex, and opening investigatory dockets is one way the commissioners can get information.
“We’ve heard loud and clear the feedback from advocates and regulated utilities that, since the reorganization of the PUC into two entities, you find that opportunities for collaboration with the PUC are lacking,” said PUC Chair Dan Goldner during a preconference hearing for one of the new investigations in September. “This is the first in a series of new investigative dockets, the purpose of which is to engage in an open exchange of ideas.”
But there was skepticism over just how openly ideas could be exchanged in this particular forum, given the PUC’s authority to then make binding orders.
“I continue to have concerns about the way the commission is conducting these investigations,” Kreis said during the hearing.
When the Legislature created the Department of Energy, it told the PUC to act like a court and make decisions through adjudication and rulemaking, he said, while the Department of Energy was charged with policymaking.
“In a better world, this inquiry would be led by the Department of Energy,” Kreis said in an interview after a pre-conference hearing on energy procurement. “It would be a very freewheeling and informal conversation that didn’t have any threat looming over it that the people in charge of the conversation would then issue an order saying, ‘Do this.’ Because that sort of raised-eyebrow regulation tends to inhibit the dialogue.”
The Commission used to be more collaborative, Kreis said. If stakeholders reached unanimous agreement on an issue, the Commission would support that decision. That changed on Nov. 12, 2021, he said, when a consensus energy-efficiency plan was rejected by Commissioner Goldner and then-chair Dianne Martin on her last day in the position.
Nothing in New Hampshire law authorizes the PUC to proceed with the investigation, Kreis said in written comments submitted ahead of the pre-conference hearing.
The state’s utilities argued the same when asking the Commission to reconsider an investigation into energy efficiency it launched in August.
“… The investigation … is more directly within the purview of the New Hampshire Department of Energy, and out of line with the explicit purpose of the DOE’s enabling statute,” they wrote.
The Department of Energy also pushed back on that investigation, which it said “seems illadvised and inefficient.” But the Department believes that kind of investigation is within the PUC’s authority.
On Oct. 10, the PUC issued an order saying it would proceed with the investigation in spite of these concerns.
“Everything happening now is precedentsetting,” energy consultant Henry Herndon said. “We have a new PUC that is leaner. But it’s also new in that all of the commissioners are new. And then the DOE is new, and we don’t have a precedent for that — for a state agency who is empowered to take active policy positions to advocate for the governor’s policy positions.”
Another investigation launched in September will look at how to pay small-scale pilot programs between 1 and 5 megawatts for the energy they generate. These generators can reduce a variety of energy costs, and the question is how to compensate them for that.
A pre-hearing conference is scheduled for Jan. 5 at 9 a.m., which will kick off the investigation.
This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting.