Power to the People is a column by D. Maurice Kreis, New Hampshire’s Consumer Advocate. Kreis and his staff of four represent the interests of residential utility customers before the NH Public Utilities Commission and elsewhere. It is co-published by Manchester Ink Link and InDepthNH.org.
By D. Maurice Kreis, Power to the People
Maybe, just maybe, after paying hundreds of millions of dollars and waiting 24 years, New Hampshire’s residential utility customers are about to get some real benefits out of the 1996 Restructuring Act. But not if Eversource has anything to say about it.
Okay, yes, New Hampshire’s largest utility is a frequent and convenient target of this column. But they’re the folks who brought you Seabrook and Merrimack Station (and its boondoggle of a mercury scrubber), and which lately is seeking a lavish 10.4 percent return on investment in the middle of an economically crippling pandemic. Compared to those epic struggles, this one might seem trivial.
The war between the forces of democracy and monopoly control of the power industry has been fought over countless, seemingly trivial issues. As someone who’s been doing this utility regulation thing from a ratepayer perspective for more than 20 years: It’s these seeming skirmishes that cause the most harm to ratepayers while assuring perpetual and generous profits to utility owners.
The bold reform at the heart of electric industry restructuring was declaring the actual electricity, as opposed to the facilities for moving it around, to be a monopoly no more. Like every other state in New England but Vermont, New Hampshire forced its utilities, kicking and screaming, to divest their generation assets; it ‘only’ took from 1996 to 2018 to get it done.
At wholesale, electricity trades on open markets overseen by the regional transmission organization ISO New England. At retail, customers can chose competitive, non-utility sellers of electricity, with Eversource (as well as Unitil, Liberty Utilities, and the New Hampshire Electric Co-op, depending on where you live) offering a backstop – so-called “default energy” service.
That’s been great for big industrial users of electricity. They’ve saved tons of money because competitive suppliers love these big accounts. Residential customers have gotten nada.
In fact, one could argue they’ve gotten less than nada. There is good data to suggest that residential customers who have migrated to competitive suppliers have ended up paying more for their electricity than customers who have stuck with default service.
Enter Community Power Aggregation — CPA.
Thanks to CPA legislation signed into law by Governor Sununu last year, your municipality can now aggregate the electric load in your town or city, procure the wholesale electricity, and provide services for all retail customers. A whole municipality’s load is attractive to suppliers for the same reason a whole factory’s, or a whole university’s, is attractive.
Community Power gives individual ratepayers the bargaining power that comes from collective action. It’s that simple.
Municipal aggregation has actually been authorized since the beginning of restructuring. Before last year, it had to be opt-in aggregation, which required a municipality to go out and seek permission from each individual ratepayer. This was unworkable and required too much upfront cost from a business perspective. So last year’s bill authorized opt-out aggregation. “Opt-out” means exactly what you’d think it does – if you live in a Community Power municipality, you’re automatically in the aggregation unless you (oxymoronically) affirmatively say no.
This story has some heroes. People like Hanover Town Manager Julia Griffin, who proclaims: “Across the country, regional electricity aggregations are demonstrating that there is true strength in numbers as communities work together to pursue better electricity pricing and green power.” She’s been working on aggregation, and green power, for Hanover since at least 2017.
Another hero is City Councilor Clifton Below, deputy mayor of Lebanon. An indefatiguable former legislator and state utility commissioner, Below wrote the 2019 Community Power legislation — and co-authored the 1996 Restructuring Act long before that.
Below, Griffin, and a third hero – youthful Henry Herndon of the nonprofit Clean Energy New Hampshire – are working with a group of forward-thinking municipalities to create Community Power New Hampshire (CPNH). It’s a nonprofit partnership, open to all communities that want to operate their Community Power initiatives together. The so-called “Joint Action Agency” is designed to achieve an economy-of-scale in operations while preserving local control over rates, renewable content, local programs and finances at the community level.
Not coincidentally, a fight just broke out between the Community Power New Hampshire heroes and Eversource. It’s about data.
The legislation Below wrote authorizes the municipal aggregators to start the aggregation process by getting from the utilities a list of all the electric customers in their towns. They must offer each customer a chance to opt-out, after being informed of the rate the CPA program has negotiated with its wholesale supplier.
But here’s the rub – to negotiate wholesale supply deals, the municipal aggregation program needs the particulars on each potential participant’s load data – i.e., account numbers, information about how much electricity each customer uses, and when.
Eversource says it is concerned about customer privacy and will therefore not fork over this individual customer load data to the potential aggregators. It takes that position even though there is specific language in the statute (look it up; it’s RSA 53-E:4, VI) that says: “An approved aggregation may use individual customer data to comply with the provisions of RSA 53-E:7, II” – meaning the notification and “firm offer” pricing provisions.
“Unworkable,” says Samuel Golding, an expert working with Community Power New Hampshire, of Eversource’s position. He explains that communities need accurate load data “in order to be able to construct a sensible portfolio and procurement strategy, negotiate with suppliers, and then offer the resulting rates to default customers on their opt-out notifications.” He knows what he’s talking about. Golding helped design the highly successful multi-municipality aggregation programs in California that have informed the design of Community Power New Hampshire.
As a lawyer, never mind a ratepayer advocate, Eversource’s position drives me nuts. And I’ve got some authority for that.
Try, for example, the February 20, 2020 opinion of Justice Samuel Alito, writing for a unanimous U.S. Supreme Court in a case entitled Intel Corp. Investment Policy Committee v. Sulyma. Wrote Justice Alito (quoting, by the way, a 2004 opinion, in another case, written by Justice Ruth Bader Ginsberg): “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.”
The same argument applies, here, to the New Hampshire Legislature. It would be ludicrous to interpret its 2019 opt-out aggregation bill as making opt-out aggregation impossible. But that’s exactly the position Eversource is taking.
Are you wondering, yet, why restructuring took so long? Or why benefits to residential customers have been so long in coming?
This is how the utilities play the regulatory game to win.