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NY Court Of Appeals To Hear Appeal Of PSC's Authority Over ESCOs

NEM Seeks Stay of PSC Evidentiary Proceeding Given Court's Election To Hear Appeal

April 18, 2018

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

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The National Energy Marketers Association (NEM) has moved to stay the New York PSC's evidentiary hearing process reviewing the ESCO mass markets given that the State of New York Court of Appeals has agreed to hear an appeal from NEM concerning a lower court's order which had addressed the PSC's authority over ESCOs

On March 27, 2018, the New York Court of Appeals granted the National Energy Marketers Association’s Motion for Leave to Appeal. NEM said that, under the appeal, the Court of Appeals will address, "the question of whether the Legislature ever imparted to the Commission the authority to regulate the rates that private, non-monopoly ESCOs charge their customers."

"The Court of Appeals opened Docket No. APL-2018-00046, Matter of National Energy Marketers v. Public Service Commission of the State of New York, in which the Court will decide the critical issue of the scope of the Commission’s authority," NEM said

NEM said that motions for leave to appeal to the Court of Appeals are rarely granted; the Court granted leave to only 3% of the applicants who filed motions for leave in 2016-17

"Given that New York’s highest Court is going to determine the scope of the Commission’s jurisdiction -- an issue that lies at the heart of these proceedings -- these proceedings should be stayed until after the Court issues its ruling," NEM said in its motion to stay the PSC proceedings

"Absent guidance from the New York Court of Appeals on these fundamental legal issues concerning the Commission’s authority over ESCOs, the parties will be forced to submit final briefing and make arguments and recommendations to the ALJs and the Commission that are divorced from the law that will be pronounced by the Court of Appeals. Similarly, the ALJS [sic] and the Commission will be forced to consider and decide the issues without proper briefing or analysis by the parties concerning the issues once the Court of Appeals provides its controlling guidance," NEM said

NEM further said in its motion for a stay that, "The Department of Public Service Staff’s ('DPS Staff') Initial Brief submitted in these proceedings illustrates the problem with continuing these proceedings without regard for the impending Court of Appeals decision. Throughout its Initial Brief, DPS Staff references the 'broad authority' that the New York courts have held the Commission to possess to regulate ESCOs. That assertion -- which underpins DPS Staff’s recommendations throughout -- is based on DPS Staff’s interpretation of the very prior decisions that the New York Court of Appeals will now be considering for itself and on which the Court will be reaching its own conclusions and issuing controlling rulings. The many assertions throughout the Parties’ Initial Briefs regarding the scope of the Commission’s authority over ESCOs and their rates must all be conformed to the decision that the Court of Appeals will pronounce on those very issues once it completes its now pending review."

"Accordingly, NEM respectfully requests that these proceedings be stayed until 60 days after the Court of Appeals issues its ruling in the pending appeals National Energy Marketers Association v. Public Service Commission of the State of New York and Retail Energy Marketers [sic] Association v. Public Service Commission of the State of New York," NEM said

Under a schedule set forth by the Court of Appeal, appellants' brief and record material shall be served and filed by May 29, 2018. Respondent's brief and any supplementary record material shall be served and filed by July 13, 2018. Appellants may serve and file a reply brief by July 30, 2018.

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