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BlueRock Energy Applauds N.Y. Supreme Court’s Ruling Against, "Regulatory Exploitation"

August 1, 2016

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The following is a media statement from Phil Van Horne, President and CEO of BlueRock Energy. EnergyChoiceMatters.com disclaims any responsibility for the content of the statement below, and makes no averment as to its accuracy or statements

BlueRock Energy Applauds The Supreme Court’s Ruling Against Regulatory Exploitation

Syracuse, NY - July 29, 2016

BlueRock Energy supports the State Supreme Court’s decision this week to overturn Ordering Clauses #1-3 of the New York Public Service Commission (PSC) February retail market "reset" Order on Energy Service Companies (ESCOs).

State Supreme Court Justice Henry Zwack produced an Order offering continued energy choice for New York residents, making it a justified and well-reasoned win for the New York market. The Order protects the fair treatment of ESCOs that have been diligently working to provide such a market since deregulation occurred. It is clear the Court’s Order that included reviewing thousands of documents was the result of extensive research into the history of the energy sector’s deregulation and intensive analysis of the last two years of the PSC’s actions.

Despite this win for New York residents and the market, the PSC has dismissed there were "procedural flaws" on their end. We reject this premise. The Court ruled a violation of Due Process, a constitutional violation, and deemed the PSC’s Order as "Arbitrary and Capricious".

Specifically, the Court stated the PSC’s Order lacked "an opportunity [for ESCOs] to be heard in a meaningful manner and at a meaningful time...which on careful review of the extensive submissions by the parties (in excess of 5,500 pages), was never afforded to the petitioners." Despite the ESCOs’ requests for extensions of time beyond a mere 10 [calendar] days, clarifications of the order, pleads to be heard and receive a chance to sit down and negotiate a more reasonable Order, ESCOs were shut out by the PSC.

While government agencies are given the most extreme levels of deference in their areas of regulation, the fact that the Court found the Order to be "Arbitrary and Capricious", which is the highest bar of proof to achieve by a plaintiff (here the ESCOs), is not procedural at all. Rather it means that the Order was created unreasonably and is invalid because it failed to consider any proper consideration of any and all facts and circumstances that may have been relevant to the Order. The PSC ignored all relevant substance and chose this blatantly discriminatory Order instead, which the Court took the most extreme measures to not postpone, not freeze, not reconsider, but vacate.

This was a completely unworkable regulation that arbitrarily targeted ESCOs, rather than improving the industry by enforcing existing regulations the PSC is empowered with to keep the industry workable and competitive. The Court’s ruling even noted that ESCOs could not have seen this coming, and in fact the vast majority of the industry was under the impression that they were working with the PSC to comply with the law, and current regulations. The Court rightly said, no, enough, stop. No one could possibly work to comply with this Order no matter how much they wanted to, and for several reasons – the 10-day compliance, the vague implementation, and even the definitions as to which customers it applied.

It is not a surprise that the Court found that the PSC’s jurisdiction is involved with rates and prices – as they clearly have been since the birth of the ESCO sector. Competitive markets are rooted in competitive prices and products, and value for customers. Under existing regulations, the PSC can already enforce against abuses in pricing and ratemaking. Ethically-run, price-competitive ESCO’s, like BlueRock Energy, want nothing more than for the PSC to crack down on these few bad actors without crippling a thriving, and predominantly honest and willingly compliant market.

BlueRock Energy congratulates independent energy suppliers across New York State on this tremendous success against regulatory exploitation, and is reassured that with the precedent of this week’s Court Order, the entire energy sector in our state has moved toward a fairer, and therefore thriving, competitive market. This, in turn, offers greater and better choices for those who live in this great state.

Phil Van Horne

President and CEO of BlueRock Energy

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