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Illinois ALJs Require Retail Energy Trade Associations To Respond To Discovery Requests, Provide Member's Marketing Materials

January 19, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

Two Illinois ALJs recently granted, in part, motions to compel certain retail energy trade associations to respond to discovery concerning individual retail suppliers' renewable energy marketing.

Specifically, the ALJs directed the Retail Energy Supply Association and Illinois Competitive Energy Association to each answer the following discovery requests filed by the Environmental Law & Policy Center (ELPC):

1.1: Please identify which of your members have offered an electricity product marketed as "renewable, " "green," "environmentally friendly, " or otherwise environmentally beneficial.

1.2: For each of the members identified above, please identify the specific product advertised as “renewable,” "green," "environmentally friendly" or otherwise environmentally beneficial. Please provide a copy of marketing materials for each of these products.

1.3: For each of the specific products identified above, please provide the source and nature of the electricity marketed as "renewable," "green," "environmentally friendly, " or otherwise environmentally beneficial.

ELPC sought the discovery in a proceeding concerning retail supplier marketing, including renewable energy disclosures and marketing, and said that discovery was necessary as ELPC alleged that the trade associations made assertions in their filed comments concerning practices related to electricity products advertised as renewable.

The Illinois Competitive Energy Association said that it did not in any part of its comments, "refer to the particular marketing practices of its membership collectively or any specific members."

"Thus, ICEA never raised the issue of its membership’s practices collectively or the practices of any individual member, as ELPC falsely suggests it did," ICEA said

The trade associations objected to discovery, citing, among other reasons, the fact that the associations do not possess or control the sought information, the fact that the information is sought from non-parties to the docket, the confidential and competitively sensitive nature of the information sought, and the burden that responding to the "vague" and "broad" requests would entail

ELPC said that retail suppliers, "should not be permitted to hide behind their trade associations in order to avoid producing important and relevant information to the parties and the regulating agency."

The ALJs granted ELPC's motion to compel, in part, and required the trade associations to respond to the three discovery requests listed above as they relate to the suppliers' Illinois green products. The ALJs noted that, "no price information is sought, so arguments regarding antitrust violations are without merit."

"Also, the marketing materials requested are not confidential. The ALJs find that ELPC reasonably seeks the basis for the opinions expressed in the verified comments and some the information sought is relevant to the rulemaking and is not overbroad or unduly burdensome. Parties may be able to use the information sought by ELPC in future comments during the rulemaking process, such as during the first notice period," the ALJs said.

The ALJs denied additional discovery requests made by ELPC, which had sought to require the trade associations to file information about the specific renewable energy purchases, resource/REC type, and REC sourcing of specific member products

Docket 15-0512

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