Washington, D.C. – The Federal Energy Regulatory Commission has upheld the broad power of retail electricity customers to participate in commission proceedings, rejecting an argument by a FERC administrative law judge to shut out end-use customers from the commission’s activities. In an order on Nov. 12, the commission ruled unanimously that “as courts have recognized, retail customers may file complaints and protest transmission rates and wholesale sales rates before the commission. Moreover, allowing retail customers to challenge such rates does not violate principles of federalism or interfere with states’ rights.”
As I reported in this blog earlier this month, FERC ALJ Carmen Citron in October argued that retail customers’ participation can clog up FERC’s agenda and impose administrative costs. They should not have standing before the commission as they “do not purchase wholesale electricity – they purchase retail electricity.” The long-festering boundary dispute between wholesale power transactions — which FERC regulates – and retail commerce — a state function– is at play in a case pending before the U.S. Supreme Court over FERC’s plans for demand response programs.
Citron was echoing an argument by American Electric Power in a case involving a citizen complaint over a transmission case involving AEP subsidiary Southwestern Energy Power Co. Arkansas activist Martha Peine challenged some $92,000 in Swepco lobbying expenses charged to customers. AEP argued that has already spent “1500 hours and $200,000” disputing Peine’s charges.
Large retail customers, led by the Electricity Consumers Resource Council (Elcon) in Washington, mounted a swift response, charging that Citron’s reasoning would flip “the fundamental purpose of the FPA [Federal Power Act] on its head.” The FERC staff supported Peine’s participation.
The commission agreed with its staff and Elcon. In its order this week, FERC said, “The plain language of the FPA and the commission’s implementing regulations allow broad participation in proceedings before the commission.” The law, FERC wrote, “explicitly authorizes ‘[a]ny person’ to file a complaint with the commission. The commission’s regulations are to a similar effect.”
As to the objection by Citron and AEP that filings by retail customer gum up the administrative works, FERC noted “that the commission’s Rules of Practice and Procedure provide appropriate measures to streamline commission proceedings.”