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Pennsylvania ALJs Direct Retail Supplier To Disclose The Number Of Its Customers On Renewable Energy Plans, As Part Of Discovery In Default Service Case
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Two Pennsylvania ALJs have directed Constellation Energy Generation, LLC and Constellation NewEnergy, Inc. (collectively, "Constellation") to provide the number of retail residential customers served on a Constellation renewable energy plan at FirstEnergy Pennsylvania, in granting, in part, a discovery request from the Office of Consumer Advocate in FirstEnergy Pennsylvania's default service proceeding
As first reported by EnergyChoiceMatters.com, FirstEnergy Pennsylvania proposes numerous reforms to retail energy marketing as part of its DSP, including limiting purchased receivables to an amount no higher than the default service rate, and mandating the drop of fixed price customers to default service if the customer does not make an affirmative choice at renewal. See full details here
Constellation intervened in the DSP case but did not file testimony
OCA sought via discovery to require Constellation to answer the following and to produce the documents requested therein:
Does Constellation offer a renewable energy product? If so, provide the contract
for such a product and the number of residential customers served by each FE EDC
for the period January 2024 to the present.
OCA noted that arguments from RESA and other (non-Constellation) supplier intervenors have challenged a comparison filed by the FirstEnergy PA utilities which had stated that residential shopping customers paid approximately $82 million more in net generation charges in 2025 than they would have paid if they were paying for the same amount of generation at the EDC's default service rates, with suppliers arguing, among other things, that renewable energy plans affirmatively chosen by customers include a premium for such green power
As such, OCA said that its discovery request "goes directly to" arguments raised by RESA and other suppliers in testimony or other pleadings. OCA noted that Constellation is a member of RESA
Constellation noted that, "RESA’s intervention petition expressly stated that RESA’s
comments represent the position of RESA as an organization but may not represent the views of
any particular member of the Association."
"Constellation has always participated in this proceeding as its own entity to represent its own rights and conduct its own analysis, regardless of
RESA’s petition to intervene," Constellation said
As noted, Constellation did not file testimony in the case
"Constellation did not advance any claim related to whether customers
knowingly choose higher-priced products because of a renewable offering," Constellation said
"The OCA is clearly
attempting to test the arguments made by RESA and others, and in doing so, is conflating trade association advocacy -- that explicitly disclaims speaking for all member suppliers -- with party-specific testimony," Constellation said
Constellation did reply to OCA's discovery request by affirming that Constellation offers renewable energy plans at FE PA, but Constellation objected to the provision of specific customer numbers and data, stating, "A historical lookback at
the number of customers enrolled on the renewable product does not offer any additional analysis
relevant or helpful to the proceeding."
"OCA requests historical data out of
curiosity, but only the current data is relevant to determine whether customers presently choose
renewable products," Constellation said
Constellation also said that the historical data reveals Constellation’s competitive position.
OCA said that, "The interrogatory seeks
information necessary to evaluate those claims including the scope of customer participation in
renewable products and the contractual representations being made to Pennsylvania consumers.
The interrogatory was sent to all EGS intervenors in this proceeding, not just Constellation."
OCA said, "the requested contracts and customer counts are reasonably calculated to lead to
the discovery of admissible evidence concerning the actual nature and value of the renewable
products being offered. 52 Pa. Code § 5.321(c). The requested information is therefore directly
relevant to assessing RESA’s and EGSs’ assertions regarding customer preferences, renewable
content, consumer benefits, and the justification for opposing FirstEnergy’s proposed customer
protections."
OCA said that, "Under Section 333(d) of the Public Utility Code and the Commission’s regulations, parties
may obtain discovery regarding any nonprivileged matter relevant to the subject matter involved
in the proceeding. 66 Pa. C.S. § 333(d); 52 Pa. Code § 5.321(c). The Commission applies relevancy
broadly, and information need not itself be admissible if it is reasonably calculated to lead to
admissible evidence."
Addressing the issue, the ALJs ordered Constellation to produce Constellation’s current contract template for its renewable energy product, and to produce the aggregate number of FE PA residential customers presently on the Constellation renewable energy product
Furthermore, the ALJs ordered Constellation to provide a limited amount of historical data
Specifically, Constellation was directed to produce the aggregate number of FE PA residential customers on a renewable energy product served by Constellation, for the most recent month for which data is available, and for the same month in 2024 and 2025.
The ALJs said, "This information appears reasonably calculated to lead to the discovery of admissible evidence and, moreover, Constellation has not shown that its concerns raised regarding exposure of competitively sensitive information or undue burden apply."
"We are not persuaded that historical data would contribute no additional, relevant or helpful analysis to this proceeding. However, in the instant circumstances, we will balance the concerns raised by Constellation by requiring it to produce historic data sufficient to provide some context for the current customer count," the ALJs said
"We find that aggregation of the data, in addition to the terms of the Protective Order issued on March 27, 2026 will provide sufficient protection to the information at issue," the ALJs said
P-2026-3060298
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June 3, 2026
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Reporting by Paul Ring • ring@energychoicematters.com
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