Update: Judge Grants Temporary Restraining Order Preventing Enforcement Of NY PSC Full Stop Order, Orders PSC To Show Cause Why Preliminary Injunction Should Not Be Granted

As first reported by EnergyChoiceMatters.com Friday morning, a New York Supreme Court judge for the County of Albany issued a temporary restraining order preventing the New York PSC from enforcing Ordering Clauses #1-3 of its Feb. 23 "full stop" retail markets order

The temporary restraining order was in response to petitions from the Retail Energy Supply Association, National Energy Marketers Association, and various ESCOs seeking an order declaring the PSC's order void, for various legal deficiencies (see prior story for more)

The judge further ordered the PSC to show cause by April 14 why the court should not grant an order staying enforcement of Ordering Clauses #1-3 and preliminarily enjoining the PSC from enforcing such Ordering Clauses

The temporary restraining order will be in effect through at least April 14

The PSC was further ordered to show cause why a judgment and order should not be entered: (i) declaring that the Ordering Clauses are void as being issued in excess of the PSC's jurisdiction or authority; (ii) declaring that the Ordering Clauses are void as being issued in violation of lawful procedure, affected by errors of law, arbitrary and capricious, and an abuse of the PSC's discretion; and (iii) declaring that the Ordering Clauses are void because they violate ESCOs' rights under the Constitutions of the State of New York and the United States.

Ordering Clauses #1-3 from the PSC's February 23 order were as follows:

1. Consistent with the body of the Order and subject to the exceptions described therein, effective ten calendar days from the date of this Order, energy service companies (ESCOs) shall only enroll new residential or small non-residential customers (mass market customers) or renew existing mass market customers in gas or electric service if at least one of the following two conditions is met: (1) enrollment where the contract guarantees that the customer will pay no more than were the customer a full-service customer of the utility; or (2) enrollment based on a contract for an electricity product derived from at least 30% renewable sources.

2. ESCOs must receive affirmative consent from a mass market customer prior to renewing that customer from a fixed rate or guaranteed savings contract into a contract that provides renewable energy but does not guarantee savings.

3. For each ESCO that intends to enroll new mass market customers or renew existing mass market customers once Ordering Clause No. 1 has gone into effect, the Chief Executive Officer (CEO) or equivalent corporate officer of the ESCO must make a filing by 4:00pm on the tenth calendar days after the date of this Order certifying that any enrollments will comply with the conditions of this Order.

It is understood that the requirement to move no-contract month-to-month customers to default service or a compliant product was addressed within Order Clauses #1's language regarding renewals, and therefore, this requirement was also stayed by the temporary restraining order

The Retail Energy Supply Association issued the following statement:

The Retail Energy Supply Association (RESA) is gratified that the court has ordered a temporary stay of New York Public Service Commission (PSC) rules that effectively eliminated the right of residential and small commercial customers in New York to choose among competitive energy offerings. This is great news for consumers as it protects their right to freely decide for themselves what energy products offer value. However, ongoing legal review of the PSC's order will continue.

RESA looks forward to working collaboratively with the commission regarding its concerns in a productive way so that consumers retain the right to choose their energy provider and the value added products and services that come along with such a choice.

We will continue to support development of best marketing practices, and will continue our efforts to secure the benefits of competition for New York consumers.

The PSC said in public statements that the temporary restraining order reflects a procedural step by the Court, and does not address the substance of any petitions seeking to void the PSC's order. The PSC indicated that it is confident it will prevail on the merits.

The cases are Supreme Court of NY, County of Albany, Index No. 870-16 et. al.