By DAMIEN FISHER, InDepthNH.org
A simmering fight between the state Department of Energy and the Public Utilities Commission is coming out in the open, and the Office of Consumer Advocate is jumping into the fray.
“The truth is, utility regulation in New Hampshire is not working,” Consumer Advocate Donald Kreis testified this week.
Kreis and leaders from the PUC and DOE all testified before the House Science, Technology and Energy Committee on a bill that would clarify jurisdiction in regulatory cases. Among other changes, HB 266 makes clear the PUC members cannot dictate what evidence is presented before them during their hearing process.
The Department of Energy was created in 2021, resulting in a restructuring of the PUC. The Department is accountable to the governor’s office and tasked with pursuing the executive branch energy agenda. The new PUC is meant to adjudicate cases like site plans for utility projects, enforcement actions, and proposed rate changes that get passed on to residents and businesses. The Office of Consumer Advocate protects the interests of residential utility customers in rate setting cases brought before the PUC.
Both Kreis and Deputy of Energy Commissioner Christopher Ellms testified the PUC is still fighting the 2021 changes and acting in troubling ways. The main area of conflict is who gets to decide on what evidence is presented to the PUC as adjudicators. HB 266 would spell out that only the DOE can present evidence.
“They are unwilling to accept that the Department of Energy determines the evidence before the Commission,” Ellms said. “I understand the Commission wanting to cling to the old ways, they had a lot of power prior to 2021.”
Department of Energy Legal Counsel David Shulock testified that the PUC has been ordering Department of Energy staff to present specific information as evidence in cases brought by the DOE.
PUC Chair Dan Goldner testified his commission needs to get information to make decisions since the Department of Energy does not weigh in on every case.
“The commission does not have access to discovery, we are very limited in what we can get,” Goldner said.
But Kreis said the PUC is effectively gathering its own evidence to inform its rate decisions and keeping that evidence secret. That leaves Kreis unable to make a proper case in favor of residential customers.
“Evidence that the PUC considers is supposed to be vetted at contested hearings,” Kreis said. “I have a right to subject that evidence to skeptical scrutiny, and that is not happening.”
In a pending case involving Liberty Utilities, the PUC has its own analytical evidence that is not being shared with other parties like Kreis. That Liberty Utilities decision could impact how much more money residential customers pay for power.
Just as concerning, according to Kreis, is the fact that PUC staff made public statements at a House hearing last month about four pending cases, including the Liberty Utilities case. Discussing pending cases publicly is a serious violation of PUC rules, Kreis said, as any comment could lead to doubts about the commission’s impartiality.
“I was floored,” Kreis said.
Kreis filed a motion this week to have that staffer, Hearings Examiner Alexander Speidel and all three commissioners removed from the Liberty Utilities case.
Adding to the dysfunction, Kreis is now fending off a Republican-backed proposal to eliminate his office.
“We are wasting tons of ratepayer money indulging the PUC’s policy agenda. Yet they want to abolish my office,” Kreis said.
InDepthNH.org reached out to both the Department of Energy and the PUC, but has yet to hear back. Rep. Ross Berry, (R-Manchester) the lead sponsor of the bill to dissolve the OCA, said his bill would make the agency part of the Department of Energy.
“I think (OCA’s) mission can be better accomplished by folding it into the Department of Energy,” Berry said.
The Department of Energy has more resources than the OCA and can better serve the people of New Hampshire, Ross said.
“I want the mission of the Department of Energy to be lowering consumer rates,” Berry said.
The Department of Energy is tasked with pursuing the governor’s agenda, Kreis said, which may or may not be in the best interest of residential ratepayers on every issue.
“The policy agenda of any governor is never going to be identical to the interest of the residential utility customer they represent,” Kreis said.
Republicans like Berry might feel differently about his office’s independence if a Democrat had the executive office, Kreis said.
“It might be hard to conceive at this point, but there could come a time when there is a Democratic governor. Then they’ll be grateful for an independent energy advocate,” Kreis said. “I am one of the most independent, if not the most independent, official in state government.”