NOPEC Responds To PUCO Show Cause Order, Moves To Dismiss Dynegy Complaint
September 29, 2022 Email This Story Copyright 2010-21 EnergyChoiceMatters.com
Reporting by Paul Ring • email@example.com
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The Northeast Ohio Public Energy Council (NOPEC) filed a response to a prior show cause order issued by the Public Utilities Commission of Ohio, while also moving to dismiss a complaint filed against NOPEC by Dynegy Marketing and Trade, LLC
The cases relate to NOPEC's decision to return about 550,000 opt-out aggregation electricity customers to the standard service offer
PUCO, among other things, cited two issues in its show cause order. PUCO, "distinguishe[d] between NOPEC’s customers, who in good faith enrolled in the aggregation based upon representations of energy savings," and further said, "The record is not clear whether the decision of NOPEC and NextEra to not match the SSO price, and thus follow through on their prior representations."
PUCO also suggested that NOPEC's actions were not consistent with its Plan of Operation and Governance (POG) which PUCO said, "do not appear to allow for the return to customers under these circumstances and require a
90-day notice to customers prior to being returned to SSO service."
With respect to aggregation pricing, NOPEC responded that, "[PUCO's] Entry incorrectly alleges that NOPEC had made a commitment to Aggregation Program
customers that it would 'match the SSO price.' To be abundantly clear, NOPEC has not made
such a commitment during the current Aggregation Program."
"On more than fifty (50) occasions
since January 2020, NOPEC has filed for Staff and PUCO review its opt-out notices that describe
the three products it is offering and their pricing. None of the opt-out notices made a commitment
to match the SSO," NOPEC said
NOPEC said that its POG states that pricing, "is expected to be lower than the utility's standard offer generation
charge over the duration of the Aggregation Program"; however, NOPEC further stressed that, "it never made a commitment to
match the SSO in any of the opt-out notices reviewed by PUCO Staff during the program term."
With respect to the POG notice and termination provisions, NOPEC said that it, "did not violate its POG’s 90-day notice provision because the
provision is not applicable to the return of Standard Price customers to the
"NOPEC’s Plan of Operation and Governance provides that individual customers will be
notified 90 days before their return to the SSO in only two specific circumstances: (1) when the
aggregation program’s power supply contracts are terminated or expire for all member communities and are not renewed, and (2) when a member community cancels its membership in
NOPEC," NOPEC said
"Neither of these events occurred. NOPEC’s Aggregation Program for the January 2020 to
January 2023 term offered three individual products to NOPEC customers: the Standard Price, the
Monthly Variable Price, and the Fixed Term Price. Monthly Variable Price and Fixed Term Price
customers continue to be served by the Aggregation Program’s existing supply contracts. Because
the power supply contract for all member communities has not been terminated, and no member
community has canceled its NOPEC membership for a period prior to January 2023, the 90-day
notice provision in NOPEC’s POG simply is inapplicable," NOPEC said
NOPEC did note that PUCO's Entry, which referred to the most recent POG filed with PUCO, was actually an older document erroneously filed at such time
"To avoid any confusion, the September 7 Entry cites to the most recent filing of NOPEC’s POG on August 17,
2021, submitted when the City of Sebring joined NOPEC. Although this POG was the most recently filed with the
PUCO, it actually is a prior version from October 2010. It was inadvertently filed in this docket by ministerial error.
It is not the current November 14, 2017 version of the POG. NOPEC’s current POG was revised November 14, 2017,
and was first filed with the PUCO the next day, November 15, 2017, and in NOPEC’s renewal certificate application
on November 23, 2020. It most recently was filed in this docket on May 25, 2021, when Pittsfield Township joined
NOPEC," NOPEC said
NOPEC further said, "While the Entry is correct that O.A.C. 4901:1-24-16(B) requires a POG to detail customer
rights and obligations, nothing in that rule required NOPEC to include a provision in its POG that gives a 90-day notice (or any notice) to customers before providing them with a benefit."
"NOPEC violated no PUCO rule in returning its Standard Price customers to the SSO, and it
did not violate its own POG. NOPEC had no control over the events that caused electricity prices
to spike in 2022. NOPEC’s commitment to ensure that all of its Standard Price customers received
the same benefit of lower electricity prices reflects positively on its managerial capability and is not
cause to suspend its certificate," NOPEC said
NOPEC further said, "The Entry also alleges that NOPEC’s premature return of customers to the SSO is a potential
cause to suspend its certificate. NOPEC’s current aggregation program runs from January 2020 to
January 2023, and its Standard Price customers were returned to the SSO beginning in late August
and into September 2022. The Entry cites no provision of law that NOPEC allegedly violated by
the return and, as stated above, nothing in the PUCO’s rules, or in NOPEC’s POG, prevented it."
"Moreover, Section 5 of the Agreement Establishing the Northeast Ohio Public Energy Council
... gives NOPEC authority to take any necessary and incidental
actions to effect and carry out the purposes of the Aggregation Program for the benefit of the
Members and their respective electricity consumers. This authority includes NOPEC’s decision to
return Standard Price customers to a more favorable standard service offer price for the benefit of
NOPEC members and consumers," NOPEC said
"NOPEC notes that the Show Cause Entry refers to NOPEC’s and NextEra’s 'responsibility
for the circumstances surrounding the request for waiver,' i.e., the early return of customers ... NOPEC had absolutely no control over the circumstances that led to the dramatic
increase in the market price of electricity worldwide in 2022. No one did," NOPEC said
NOPEC noted that PUCO's Entry also expressed concerns that NOPEC’s return of Standard Price customers to the
SSO and the uncertainty of the timing of their subsequent enrollment in a new NOPEC aggregation
program will somehow harm SSO customers by increasing the SSO price. "Although unclear, the
Entry seems to suggest that NOPEC may have engaged in anti-competitive conduct (O.A.C.
4901:1-24-13(E)(9)) by using market power (R.C. 4928.02(I)) to increase the SSO price. To be
clear, NOPEC’s actions were only taken to benefit all Standard Price customers by moving them
to the lower-priced SSO. NOPEC had no anti-competitive intent or ability. The potential for
customers to return to the SSO is an inherent and known risk of the current market design, which
allows customers to return freely to the SSO. Customers were electing to return in large numbers,
irrespective of NOPEC’s actions," NOPEC said
NOPEC had originally indicated that the program will
resume for the standard price customers in the spring of 2023. NOPEC clarified that it will be filing its renewal certification application at the end
of this year.
"Subject to PUCO approval, NOPEC intends to re-enroll customers into its new
program for a June 2023 start date. Assuming PUCO approval, a known June 2023 start date is
beneficial to future SSO auctions as it would provide certainty to SSO suppliers that NOPEC's
load will not be included in the SSO auctions for the 2023/2024 Delivery Year," NOPEC said
A PUCO attorney examiner issued a ruling finding that the discovery process related to the NOPEC's certification case (the same case as the show cause proceeding) shall continue until further order. NOPEC had argued for a stay of discovery until the show cause process initiated by the Commission’s
September 7, 2022 Entry has been completed. The attorney examiner expressly did not yet rule on such motion (awaiting replies) but directed that, in the interim, discovery should
continue unimpeded until otherwise ordered
Separately, NOPEC also filed a motion to dismiss a complaint filed against NOPEC by Dynegy Marketing and Trade, LLC
In moving to dismiss, NOPEC alleged, among other things, that Dynegy cited rules inapplicable to governmental aggregators
NOPEC said that it fully lists and explains fees and charges
NOPEC quoted that applicable rule for governmental aggregators as providing that, "If the governmental aggregator offers a variable rate, the governmental
aggregator shall provide an understandable description of the factors that will cause
the price to vary (including any associated indices) and disclose how frequently the
rate will change."
NOPEC said, "NOPEC’s [sic] has complied with the rule. Each of its Opt-Out Notices mailed during the term of this
Aggregation Program explained: 'Supplier and NOPEC will determine the new variable rate based
on the following factors: competitor’s prices, applicable industry charges, wholesale market
conditions and electric supply sources.'"
NOPEC further said that certain of Dynegy’s allegations relating to alleged unfair, misleading and
deceptive practices, "attempt to vest in the Commission jurisdiction that it
doesn’t have -- to examine allegedly 'unfair' conduct between market participants."
the Commission has jurisdiction over the relationship between CRES providers and their
customers (R.C. 4928.10), it lacks jurisdiction over the relationship between a CRES provider (i.e.,
NOPEC), and its electricity supplier, or any other vendor," NOPEC said