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.

By DONALD M. KREIS, Power to the People

Once upon a time, I was general counsel of the Public Utilities Commission (PUC).  As the first line of a fairy tale, that lacks a certain zing.  But times are tough, and I promise this story has a moral.

When I was general counsel of the PUC, I came to think of the agency as, more or less, an order factory. 

In other words, public utilities, their customers, and others whose interests are affected by what these companies are allowed to do bring issues before the PUC for resolution.  We’re talking here about electric distribution companies, water systems, natural gas utilities – all investor-owned, profit-maximizing companies with legally sanctioned monopolies.  In exchange for such legal monopolies, under New Hampshire law they need the PUC’s permission to do stuff.

Those permissions from the PUC come in the form of orders – issued, usually, after an administrative hearing process that gives everyone interested (including the office I have led since 2016, which represents the interests of residential utility customers) a chance to be heard. 

So, when I say that the PUC is an order factory, I mean that its job is to make decisions – hopefully as efficiently and correctly as possible.  Back when I was general counsel, my principal responsibility was assuring that the product – those orders – was as good as it could be.

My definition of “good” had three components:  Bullet-proof on appeal, understandable to reasonably educated people even if they had no background in public utility law and calculated to assure that the losing party or parties would think their views had been heard, understood, and fairly considered.

The PUC no longer has a general counsel.  That position was eliminated on July 1 as part of the reorganization that created the state’s new Department of Energy and pared the PUC down to a smaller agency that shed any policymaking role and is, theoretically, now focused singularly on making decisions in adjudicative proceedings.

In other words, now more than ever, the PUC is an order factory.  But the production line seems to be broken.

For example, the PUC opened an investigation into grid modernization in 2015 – six years ago.  The proceeding moved forward at a glacial pace – under the ‘old’ PUC, at one point nothing happened for two years while the agency staff ruminated.  But, at last, on May 22, 2019 the PUC issued a landmark order.

What was landmark about it?  The PUC took steps toward opening up and democratizing the process by which utilities make investments in the grid.  This is important because if we let electric distribution companies maintain their historic “we’re the utility and you’re not” posture, there’s every reason to worry they’ll waste lots of dough on expensive toys in the name of grid modernization without truly allowing innovation to flourish and customers to save money.

Two of the electric utilities, perhaps predictably, kvetched.  (Forgive the Yiddish; this is a fairy tale.)  The PUC promptly suspended its landmark order.  Since then, it’s been crickets from our utility regulators about grid modernization.

Another egregious example of PUC inactivity had to do with the statewide utility customer data platform.  Governor Sununu signed the bill authorizing the platform in 2019; the measure directed the PUC to open a proceeding to hash out the details.

The docket opened and, against all odds, stakeholders (including the utilities) reached a settlement agreement on how to move forward.  We filed it on April 28 and presented it to the PUC at hearing on May 5.  Again, since then, crickets from the utility regulators.

As regular readers of this column already know, the most egregious example of PUC inaction has to do with the three-year NHSaves energy efficiency plan that was supposed to go into effect on January 1.  Although no party to the PUC proceeding (beyond the agency’s own staff) objected to the plan, the PUC has refused to act for nearly nine months.

This has serious real-world consequences.  People who make their living installing energy efficiency measures have been idled.  Waiting lists for certain energy efficiency services are growing.  Savings that would otherwise accrue to customers aren’t happening.

Unlike grid modernization and the data platform, the triennial energy efficiency plan has certainly engendered some public controversy at the General Court and elsewhere.  There are some big numbers in the plan (including a three year budget of roughly $380 million).  All the more reason for the PUC to do its job and decide the case.

Some have speculated about the reason for the PUC’s inaction but I will not do so.  Since the problem antedates the July 1 reorganization it cannot be blamed on those changes.

On September 1, citing the arrival of new PUC Commissioner Daniel Goldner as the replacement for non-reappointed Commissioner Kathryn Bailey (whose last day was June 30), the PUC announced it was going to be issuing some new questions and holding another hearing.  That prompted objections from utilities that administer the energy efficiency programs as well as our office and the Conservation Law Foundation.

Never mind, the PUC declared on September 21.  The PUC will now do nothing for the time being while it “further considers” the two motions.  In the absence of anything that will force the agency to act, it looks to me like we are back to the status quo inaction ante.

Look:  My office exists because utilities around the country always strive to “capture” their regulators.  My job is to try to capture the PUC on behalf of residential customers so the agency is more congenial to the interests of ratepayers.  So I do not criticize the PUC publicly on a whim.

But – and here is the moral of the story – this situation is unacceptable, from either a ratepayer or a utility perspective.  A regulatory agency that won’t do its job – i.e., one that simply leaves important proceedings without decisions, sometimes for years – is infinitely worse that an agency that makes decisions that are wrong and require correction by either the courts or the Legislature.

New Hampshire needs to fix this problem if the state’s utilities and ratepayers are going to live happily ever after.