Power to the People is a column by Donald M. 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

As New Hampshire’s Consumer Advocate, tasked with advancing the interests of our state’s residential utility customers, I sit atop the mother lode of unreported news.

Case in point: The procedural order issued on March 26 by (and here’s the tipoff that news is involved) just one of the three members of the Public Utilities Commission (PUC).  Ninety-nine point nine times out of 100, orders of the PUC are signed by all three commissioners.

“On my own initiative,” wrote Commissioner Mark W.  Dell’Orfano, “I have withdrawn from this adjudicative proceeding . . . out of an abundance of caution and solely to protect the integrity of any future decision the Commission may reach in Docket No. DE 24-112.”

Bearing a relatively innocuous title – “Petition for Adjustment of Stranded Cost Recovery Charge” – Docket No. DE 24-112 is actually a big deal.  New Hampshire’s electric industry is at a crossroads and this PUC docket may determine which direction we go.

At the heart of DE 24-112 is default energy service – the electricity you get if you do not avail yourself of a community power aggregation program (if offered by your city, town, or county) or a competitive energy supplier.  Is default energy service, as provided by the state’s electric utilities, just a backstop service – there to make sure everyone always has some source of electricity – or should the backstop service also compete with those other suppliers?

The PUC is inexorably steering utilities toward the former option – toward making default energy service as cheap as possible — by requiring the utilities to buy more and more wholesale electricity straight from the regional “spot” market administered by grid operator ISO New England.  I’m skeptical about this – spot prices are volatile, and residential customers like price stability.

But that’s not the problem at hand in Docket DE 24-112.  At issue there is: What happens when a utility, in conjunction with the PUC, guesses wrong about what the retail price of default energy service should be?    

Right now, the PUC resets each utility’s default energy service price every six months.  But the spot price changes constantly – so, inevitably, sometimes the retail default energy service price is not going to be enough to cover the wholesale costs.

When that happens, who makes up the difference?  That’s the question before the PUC in Docket No. DE 24-112.

Nobody cares more about Docket No. DE 24-112 than the Community Power Coalition of New Hampshire (CPCNH).  That’s why the CPCNH has intervened as a party to the case.

The CPCNH consists of more than 60 municipalities and four counties that jointly buy wholesale electricity and then sell it to residents and businesses within their borders.  Among its members is Nashua, Concord, Lebanon, Berlin, and, notably for present purposes, Bedford.

Eversource, which is stuck right now with a $6.5 million default energy service shortfall it has never really been able to explain, refuses to eat the cost of this mistake.

So, the utility is asking the PUC for permission to spread this cost, and presumably all similar shortfalls in the future, among all of its customers – including those not relying on default service.   This could be ruinous to the CPCNH by forcing its customers to pay twice for the same thing.

What do I mean by that?  People and businesses reliant on community power for electricity already cover the costs of any bad bets made in the wholesale market by their aggregator (and, yes, the CPCNH has made some recently) and now Eversource wants those same people to cover the costs of its mistakes as well.

In deciding how to resolve a problem like that, the PUC is supposed to act like a court.  The agency’s statutory code of ethics says so.

Which means parties like CPCNH, Eversource, and, yes, the Consumer Advocate, are entitled to a neutral tribunal consisting of people who have not made up their minds beforehand and who haven’t said anything publicly to suggest otherwise.

By that standard, Commissioner Dell’Orfano’s comments before the Bedford Energy Commission on the evening of February 27 were astonishing.

The first item on the agenda was Bedford’s plan to launch an opt-out community power aggregation program via the CPCNH. “Opt-out” means everyone participates automatically unless they request otherwise.

When it came time for public comment, up to the mike strode Dell’Orfano, a longtime resident of the town.

Dell’Orfano told his neighbors he is “vehemently opposed” to Bedford moving forward with opt-out aggregation by participating in the CPCNH.  He called opt-out aggregation “disingenuous” and twice accused the CPCNH of “slamming.”

Slamming is defined by state statute as “any practice that changes a consumer’s telecommunications or energy-related service carrier or provider without the customer’s knowledge or consent.”  It’s not a crime, but it does expose perpetrators to administrative fines from the PUC of up to $2,000 per offense.

Neither the CPCNH nor any of its members are guilty of slamming.  Upon launch, each member has done what the law explicitly requires by notifying every electric customer in the community of their statutory right to say “no” and stick with their utility’s default energy service (or buy from some other supplier on a non-aggregated basis).

Dell’Orfano made clear his dislike of the fact that, unlike the utilities, the CPCNH does not need the approval of the PUC for where it buys electricity at wholesale or what prices it charges at retail.  “There’s very little transparency into the organization,” Dell’Orfano argued, referring in particular to the lobbying efforts undertaken by the CPCNH.

There was laughter when Dell’Orfano began his remarks by declaring that he wanted “to make clear that I’m only here speaking for myself today.”  But the CPCNH did not laugh.  It moved to disqualify him, as did I in my capacity as Consumer Advocate.

Dell’Orfano’s response, supposedly withdrawing from the case on his own initiative, admitted no wrongdoing.  In fact, he claimed that those who consider him biased against the CPCNH have taken his remarks out of context.

Really?    

The Energy Commission had actually finished discussing community power aggregation and moved on to another matter – a planned solar installation in town – when Dell’Orfano, a lawyer, got back up from his seat to brag that he used to represent clients in siting such facilities.  “Just to be clear,” he said, “I’m a big fan of clean energy and renewable energy.  I just don’t like CPCNH.”

That, too, drew a laugh.  But it wasn’t funny.

Dell’Orfano’s self-disqualification did not even mention his “I just don’t like CPCNH” comment, much less explain how that could possibly have been taken out of context.

Meanwhile, with Dell’Orfano out of the picture – he actually disqualified himself from all current PUC proceedings involving default energy service – the remaining question is: How fair and unbiased are the remaining two PUC members, Chairman Daniel Goldner and Commissioner Pradip Chattopadhyay?

Those two commissioners have declined to disqualify themselves, even though we asked them to.  Why did we do that?  More unreported news. But the state’s journalists on the energy beat know my phone number.

• Reached by phone Friday separate from the column, Kreis described the “more unreported news”:

“Apart from the regrettable remarks that Commissioner Dell’Orfano made in public that reveal his own need for disqualification, the whole PUC is fatally compromised and is in violation of its statutory code of ethics because of public comments that the PUC made at the legislature that indicate that they really have prejudged all of these issues that relate to this question of what to do about default energy service,” Kreis said.