Federal Appeals Court Denies Injunction Against New York PSC's ESCO Low-Income Ban, Implementation Resumes

A federal court of appeals has denied an injunction sought by an anonymous ESCO customer against the New York PSC's December 2016 order generally prohibiting ESCOs from serving assistance program participants (APP) customers (except for any subsequently granted waiver)

A temporary stay order against enforcement of the December 2016 APP order has also been lifted by the United States Court of Appeals for the Second Circuit

As a result, the PSC acted to resume implementation of the APP prohibition, setting forth revised deadlines for compliance in a November 22 procedural order

Electric and gas distribution utilities that have tariffed provisions providing for retail access were directed to, by November 29, 2017, communicate to each energy service company serving assistance program participants which accounts the ESCO is no longer eligible to serve.

Every energy service company eligible to serve customers in New York State shall, within 30 days of receiving the communication from the electric and gas distribution utilities pursuant to the revised procedural order, de-enroll any customer accounts identified by the electric and gas distribution utilities, provided that existing contracts will continue until their expiration.

The appeals court's order was limited to the issue of the sought injunction, and did not address the merits of the suit, which remains pending at a district court