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Pa. PUC: Court Precedent On State Agencies' Environmental Duties Does Not Authorize Agencies To Contravene Statute (Duties Cannot Be Used To Authorize Opt-out Aggregation In Violation Of Anti-Slamming Law)
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State court precedent provides that the state constitutional responsibility of Pennsylvania state agencies to take into consideration clean air and other environmental concerns cannot be used to supersede specific statutory provisions, the Pennsylvania PUC concluded in finding that opt-out municipal aggregation violates the anti-slamming provision of state law
As previously reported, the Boroughs of Camp Hill, Carlisle, Hatboro, Lansdowne, Media, Narberth, State College, and Swarthmore had sought an order from the PUC that their proposed opt-out community choice aggregation (CCA) would not constitute "slamming" and would not violate Public Utility Code Section 2807(d)(1)
As more fully described in our prior stories, the Boroughs argued that Pennsylvania courts have held that both the Boroughs and the PUC bear responsibility under the Environmental Rights Amendment [ERA] of the Pennsylvania Constitution to exercise their authority under their respective legal mandates to ensure that Pennsylvania’s citizens have a right to enjoy clean air, clean water, and preservation of environmental values.
The Boroughs said that their opt-out CCAs, which would have renewable energy, are authorized as part of the Boroughs fulfilling their duties under the ERA
The PUC said that state court precedent holds that an agency can not use the ERA, and associated obligations, to contravene the defined parameters of an agency's existing statutory authority.
"Pennsylvania’s ERA does not authorize the Commission to approve opt-out municipal aggregation as a means of addressing climate change," the PUC said
"The Boroughs’ arguments regarding the Commission’s obligations under the ERA are misplaced in this case because granting the Boroughs’ Restated Petition, irrespective of claimed environmental benefits, would require us to abdicate our statutory duty by permitting jurisdictional customers to be subject to slamming," the PUC said
"[W]hile the ERA obligates the Commission to consider the environmental impacts of certain decisions, it may only consider those impacts within the confines of its authority," the PUC said
The PUC said that such limitation on agencies, established in Funk v. Wolf, has not been disturbed by later court rulings
The Boroughs argued that in a later decision, Pa. Env’t Def. Found. v. Commonwealth (PEDF), the Pennsylvania Supreme Court adopted the reasoning that all entities of the Commonwealth, including the Commission and the Boroughs, are obligated to act as trustees for the preservation of the environment
The PUC said that the Boroughs failed to cite to precedent demonstrating that Funk v. Wolf is inconsistent with PEDF. The PUC noted that the Commonwealth Court continued to rely upon Funk v. Wolf as recently as 2021.
As statute, at 66 Pa.C.S. § 2807(d)(1), requires that the PUC shall establish regulations to ensure that an electric distribution company does not change a customer's electricity supplier without direct oral confirmation from the customer of record or written evidence of the customer’s consent to a change of supplier, the PUC concluded that, "the ERA neither requires nor authorizes the Commission to violate the Code by permitting illegal slamming."
The PUC distinguished the Boroughs' sought opt-out CCA from the PUC-established opt-out program at Pike County in 2006.
The PUC reiterated that the Pike circumstances constituted an emergency, in which the PUC determined that PCLP’s high price to compare (with bill increases of 75%), coupled with the lack of offers from licensed EGSs in PCLP’s service territory, created "unique and compelling circumstances" that required expeditious action by the Commission.
In 2006, the PUC had noted that Pike's initial wholesale auction process for purchasing power for consumers was affected by many factors including the timing of the auction, which occurred during peak natural gas prices in the aftermath of Hurricane Katrina, minimal auction participants, and no competitive retail activity in the area.
In contrast, the PUC found that the Boroughs failed to demonstrate a nexus between the CCA Program and combatting climate change.
Even accepting the Boroughs' argument that climate change represents an exigent and unique circumstance similar to the PUC's holding at Pike County, the PUC further said that the Boroughs did not support their claims that opt-out aggregation is needed to address the environmental impact of climate change
The PUC said, "the Boroughs have not presented evidence to support the claims that: (1) the CCA Program would result in a greater proportion of renewable energy; (2) the procurement of renewable energy under the CCA Program would reduce greenhouse gas emissions; and (3) that the proposed CCA Program would have any impact upon climate change within the Boroughs’ borders."
The PUC further distinguished the Boroughs' proposal versus the Pike County order. Notably, the PUC observed that the Pike County opt-out program had a limited duration and a specific end date, while the Boroughs have not proposed any end for their opt-out program.
The PUC also noted that the Pike County program was implemented under PUC oversight, while the Boroughs have proposed more limited oversight for their programs (with the Boroughs arguing that they, themselves, do not need to be licensed as an electric generation supplier; only the CCA Administrator is proposed to be an EGS)
"Thus, the Boroughs’ CCA Program also lacks the important safeguards imposed in Pike County, which were components of the Commission’s determination that Pike County’s opt-out aggregation program did not constitute slamming," the PUC said
The PUC also found that the Boroughs failed to meet the requisite standard to warrant a grant of judgment on the pleadings (similar to summary judgment), because, among other reasons, material facts were in dispute among the parties to the proceeding
The PUC said, "the Boroughs’ representation that there are no material facts in dispute is inaccurate, as each of the Boroughs’ five requested findings of fact were disputed."
The PUC noted that various parties disputed the Boroughs’ claims that the proposed opt-out CCA program does not harm and has the potential to improve competition
The PUC observed that the Office of Consumer Advocate had argued that, under the CCA, default service customers will be harmed because they will be removed from default supply without their affirmative consent
The PUC also found that the Boroughs failed to address how their sought declaratory judgement would remove "uncertainty" regarding the application of the Commission’s existing statutory mandate and regulations (the removal of uncertainty being one of the standards for the grant of declaratory judgement).
The PUC instead found that granting the Boroughs’ request for a declaratory order would lead to, "a patchwork of varying programs and parameters", with the PUC observing that the, "CCA Program would inject inconsistency and uncertainty for EGSs and EDCs."
The PUC denied the Boroughs' sought declaratory order, denied the Boroughs' sought motion for partial judgment, and closed the proceeding.
P-2024-3049623
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August 15, 2025
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Copyright 2025 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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