Environmental Group Files Complaint Against Retail Supplier

June 1, 2020

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Copyright 2010-20 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The Environmental Law & Policy Center (ELPC) has filed a formal complaint at the Illinois Commerce Commission against CleanChoice Energy, Inc. (CleanChoice), alleging violations of Part 412 of the Illinois Commerce Commission’s regulations, the Public Utilities Act, and the Consumer Fraud and Deceptive Business Practices Act, relating to the disclosure of environmental information and disclosure of the price to compare

CleanChoice Energy provided the following statement to EnergyChoiceMatters.com concerning the matter: "CleanChoice Energy is proud to provide Illinois consumers an easy and convenient way to buy renewable energy via the retail market. CleanChoice believes that we are in compliance with all applicable Illinois laws and regulations. We are committed to providing an exceptional customer experience and are always open to feedback from clean energy advocates and other stakeholders about how to improve our marketing practices and promote voluntary purchases of renewable energy."

In the complaint, ELPC said that Section 412.190 requires ARES to disclose on all marketing materials and on its website the percentage of a customer’s electricity that will be paired with RECs pursuant to the 'green' or 'renewable' supply offer. ELPC said that the ARES must also disclose on all marketing materials and on its website 'the renewable energy resource type mix (i.e., corresponding percentage of each resource, such as X% wind, X% solar, etc.)' and 'the percentage of electricity paired with renewable energy resources through RECs generated in the State of Illinois that will be used.' 83 Ill. Admin. Code 412.190(b).

ELPC said that Section 412.160 sets out requirements for online marketing. This section provides that each RES offering electric power and energy service to customers online shall clearly and conspicuously make all disclosures required by Section 412.110 for any services offered through online enrollment before requiring the customer to enter any personal information other than zip code, electric utility service territory, and/or type of service sought.

ELPC alleged that on CleanChoice's website, for the company's '99% Wind + 1% Solar' plan, the 'Illinois Environmental Disclosure Statement' states that 'for the 12 months ending 3/31/2017,' 99% of the electricity was from wind power, and 1% was from solar, and that, for the company's '100% Solar' plan, the 'Illinois Environmental Disclosure Statement' also states that 'for the 12 months ending 3/31/2017,' 99% of the electricity was from wind power, and 1% was from solar.

ELPC alleged that The 'Illinois Environmental Disclosure Statement' does not for either plan option provide what percentage of the renewable energy is generated in the State of Illinois.

ELPC alleged that on the second page of the 'Terms & Conditions' documents for the products, it is disclosed that 11% of the RECs used for the '99% Wind + 1% Solar' option are generated in Illinois, and all of the RECS used for the '100% Solar' option are generated outside of Illinois

ELPC alleged that, the CleanChoice enrollment webpage states that the price to compare is 7.224 cents/kWh (the PTC in effect as of December 2019), while current (as of the May 29 date of the complaint) price to compare in ComEd territory is 7.175 cents/kWh.

ELPC alleged that, "CleanChoice violates Section 412.190 because its website does not disclose the percentage of RECs that are sourced from Illinois until after the entry of personal information, and even then, it is only provided in fine print on a separate hyperlinked webpage. This does not comply with the requirement that these disclosures are provided on 'all marketing materials' and on the ARES website."

ELPC alleged that, "CleanChoice violates Section 412.190 because the 'Environmental Disclosure' page linked on the '100% Solar' product enrollment page states that the product is 99% wind and 1% solar."

ELPC also alleged that, "CleanChoice has sent numerous marketing emails to potential customers, urging them to sign up for electricity service with CleanChoice."

ELPC alleged that, "At least many, and potentially all, of these emails do not disclose: the prices, terms, and conditions of the service; the renewable energy resource mix or the percentage of RECs generated in Illinois; the price to compare; or the 115A(e) disclosure."

ELPC also alleged that, "CleanChoice violates Section 412.190 because it does not disclose the renewable energy resource mix or the percentage of RECs generated in Illinois, as required under Section 412.190, for its green products in its email solicitations and on Plug-In Illinois."

ELPC alleged that CleanChoice’s website includes the following statements, and ELPC alleged that they are not accurate

• 'We make an impact by supporting the development of newer, renewable energy farms in your region. Sourcing from these new farms encourages development in the clean energy industry.'

• 'We aim to buy from newer wind and solar facilities to support the growth of the renewable energy industry.' ELPC alleged that, "On information and belief, CleanChoice sources RECs to match its renewable energy supply offers from facilities that are not 'new' or 'newer.'"

• '[W]e match every kilowatt hour of power you use and replenish the grid with 100% wind and solar in your region.' ELPC alleged that, "CleanChoice does not 'replenish' the grid with renewable energy."

• 'We meet or exceed all EPA guidelines for renewable energy. . . . CleanChoice Energy applies strict standard to its energy, sourcing our energy from as close to our customers as possible.' ELPC alleged that, "On information and belief, EPA does not provide guidelines for renewable energy electricity products. EPA does not certify RECs, and CleanChoice is not listed as a 'Green Power Partner' on EPA’s website"

ELPC alleged that certain mailings from CleanChoice describe CleanChoice Energy as a 'licensed supplier of clean energy.' ELPC alleged that, "There is no license in Illinois for suppliers of 'clean energy.'"

ELPC alleged that, "CleanChoice violates the requirement under 412.160 that it must clearly and conspicuously make all disclosures required by Section 412.110 on its website before requiring the entry of a customer’s personal information, since it fails to provide the following disclosures before the entry of personal information, including full name and address: Estimated bill total for electric service using sample monthly usage levels (412.110(d)); Applicable renewal clause (412.110(f)); Statement that the customer may rescind the contract within 10 days (412.110(k)); Statement that the ARES is an independent seller of electric service and is not representing or acting of a utility, consumer group, etc. (412.110(l)); Statement that the electric utility remains responsible for delivery of electric service and that the customer will receive written notification of the switch from their electric utility (412.110(m)); and The telephone numbers for the electric utility and the Commission’s Consumer Services Division (412.110(n))."

ELPC alleged that, "CleanChoice fails to 'adequately disclose[]' terms and conditions on all marketing materials pursuant to 220 ILCS 5/16-115A(e) because it lists an incorrect offer price on Plug-In Illinois."

ELPC alleged that, "CleanChoice fails to adequately disclose the price to compare and the 115A(e) disclosure statement on its website and in paper mailings, as required under 220 ILCS 5/16- 115A(e), because it provides an incorrect price to compare (7.224 cents/kWh versus the correct 7.175 cents/kWh) and because the information is hidden in small print font, and on the website, it is only provided in a separate webpage that is hyperlinked on the final enrollment page, rather than being disclosed in the actual marketing materials."

ELPC alleged that, "CleanChoice fails to 'adequately disclose[]' terms and conditions on all marketing materials pursuant to 220 ILCS 5/16-115A(e) because for direct mail solicitations, it only provides the renewable energy product mix and the percentage of RECs from Illinois on the back of an 8.5" x 14" terms sheet in fine print."

ELPC alleged that, "CleanChoice violates the Consumer Fraud Act’s requirement that it must on its website 'clearly and conspicuously make all disclosures' on its website before requiring the consumer to enter personal information, 815 ILCS 505/2EE(c)(6)(A), because it fails to provide several disclosures under 412.110 until after the entry of personal information."

ELPC alleged that, "CleanChoice uses misrepresentation in its marketing materials with the intent that consumers rely upon that misrepresentation in violation of 815 ILCS 505/2. It is misleading and inaccurate to state that CleanChoice 'replenishes' the grid with renewable energy. CleanChoice purchases RECs created by existing renewable energy resource facilities."

ELPC alleged that, "CleanChoice’s direct mailings state 'We will pair the energy your home uses with clean energy through the purchase of renewable energy certificates from Illinois wind farms.' This is misleading when only 11% of a customer’s energy use is matched with RECs generated in Illinois, and the statement was made with the intent that customers rely upon it."

ELPC alleged that certain CleanChoice mailings, "feature the text 'SECOND NOTICE' in red font stamped at the top of the first page."

ELPC alleged that, "It is misleading and a violation of 815 ILC 505/2 for a direct mail solicitation relating to electricity service to be stamped 'SECOND NOTICE' in red font and all capital letters at the top of the document. This is intended to mimic notices sent by utility companies for late payments or in advance of shutting off service. This misleads the customer into thinking they must take affirmative action in response to the offer, and the 'SECOND NOTICE' marking was used with the intent that customers would be so misled."

Among other relief, and in addition to requiring CleanChoice to cease the alleged practices, ELPC asked for the following relief:

• For each of the above Counts, impose financial penalties of $10,000 per occurrence; and/or penalties of $30,000 per day for those violations or nonconformances which continue after the Commission issues a cease and desist order

• Modify, revoke, or suspend CleanChoice’s certificate of service

Docket 20-0499

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