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Virginia Denies Utility's Rehearing Request To Make All Shopping Large Customers Subject to Advance Notice Requirements

April 27, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The Virginia SCC has denied a reconsideration request from Dominion Virginia Power concerning the SCC's recent interpretation of the statutory carve-outs allowing certain electric customers to take competitive supply

Virginia statute generally provides two exceptions that allow customers to take competitive electric supply. Direct Energy had sought a declaratory ruling regarding the implementation of these provisions

Virginia Code § 56-577 (A)(3) allows commercial and industrial customers whose demand for the previous calendar year exceeded five MWs to purchase energy from a competitive service provider. Under this 5 MW exception alone, a five-year notice period is generally required for any return to utility supply.

In contrast, Section (A)(5) provides that individual customers, regardless of customer class or size, may purchase from a retail supplier, "electric energy provided 100% from renewable energy," if the utility, "does not offer an approved tariff for electric energy provided 100% from renewable energy."

As first reported by EnergyChoiceMatters.com on March 16, the SCC, as relevant to Dominion's rehearing petition, had found that if a large customer is purchasing competitive supply under the 100% renewable energy exception under Section (A)(5), then the five-year notice period and other requirements applicable to large customers under Section (A)(3) are not applicable.

Dominion sought rehearing of this finding, arguing that the provisions of the sections conflict, and that, as the most specific statute addressing large customers, the advance notice requirement and other provisions of Section (A)(3) should govern regardless of whether the large customer is purchasing 100% renewable supply.

The SCC disagreed

"The Commission finds that the statute is not ambiguous and, thus, will not resort to rules of statutory construction as requested by Dominion," the SCC said, further finding that the various subsections are not in conflict.

"Section A 3 only applies to large users of electricity, and it allows these users to purchase electric energy from a CSP regardless of how that electric energy is generated. Section A 5 applies to all retail customers 'regardless of customer class,' and it allows these customers to purchase from a CSP if the electric energy is provided 100% from renewable energy. Unlike Section A 3, Section A 5 does not require five years' advance notice in order for a retail customer to purchase from its incumbent electric utility after such customer has chosen to purchase 100% renewable energy from a CSP. This does not represent a conflict; this simply reflects different requirements imposed by the General Assembly for different competitive purchase options explicitly permitted by statute," the SCC said

"Dominion suggests, however, that implementing the plain language of Section A 5 will create adverse consequences and, thus, represents bad policy. Such arguments are not part of the Commission's analysis," the SCC said

"In enacting Section A 5, the General Assembly has given special status to electric energy provided 100% from renewable energy. The General Assembly could have, but did not, make the prior notice requirements of Section A 3 -- either explicitly or by cross-reference -- applicable to large users purchasing under Section A 5. The Commission will not 'add language to the statute the General Assembly has not seen fit to include,'" the SCC said

Dominion has also stated that the record in the case at times referenced the terms "minimum stay" and "advance notice" interchangeably and, thus, requested clarification as to the Commission's 12-month minimum stay requirements in 20 VAC 5-312-80(Q) (Rule 80(Q)).

In this regard, the SCC clarified that the final order concerning the Direct Energy petition does not alter the minimum stay provisions in Rule 80(Q).

Case PUE-2016-00094

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