NY State Office of General Services Withdraws As Party To PSC Retail Market Evidentiary Review

The New York State Office of General Services (OGS) provided notice of its withdrawal as a party from the New York PSC's evidentiary proceedings reviewing the retail energy mass markets. As it is no longer a party, OGS said that it cannot provide testimony in the proceedings under the PSC's regulations, and said that a motion to compel its testimony should be denied

As previously reported, OGS had in September submitted pre-filed testimony in the proceeding from John T. Haff. Haff's testimony as pre-filed had, among other things, argued that New York's current market structure favors utilities over ESCOs and direct customers, and had said any prohibition on mass market sales by ESCOs is premature until such inequities are fixed. See a full discussion of the testimony here

Subsequently, in November, OGS filed a communication with the PSC stating that OGS, "withdraws the Direct Testimony of John T. Haff submitted in these proceedings on September 15, 2017. Mr. Haff will not be appearing as a witness in these proceedings."

The National Energy Marketers Association moved to compel testimony from Mr. Haff, arguing that the operative rules do not provide a party the right to submit and later unilaterally 'withdraw' pre-filed testimony that was submitted in an evidentiary proceeding

In response to NEM's motion, OGS provided notice to the PSC of its withdrawal as a party from the retail market evidentiary proceeding.

"OGS has elected to cease being a party to these proceedings. As OGS’s participation in these proceedings is and has been purely voluntary, its withdrawal as a party does not require approval. Nothing in the Public Service Law or the Commission’s Rules and Regulations requires OGS to participate. Choosing how and when to participate in Commission proceedings, in order to advance its statutory mandate and serve the people of New York, is wholly within the sound discretion of OGS. At this time, OGS is choosing to deploy its finite resources to further its objectives in other fora before the Commission. A party’s unilateral right to withdraw from participation in a Commission proceeding has been routinely recognized and upheld, including in these proceedings," OGS said

"[B]ecause OGS is withdrawing as a party, it is no longer permitted to sponsor testimony per the Commission’s regulations. Pursuant to Part 4.5, 'parties to the proceeding will be afforded reasonable opportunity to present evidence' via prepared testimony. Because OGS is withdrawing as a party, it will no longer be able to present evidence in the form of testimony," OGS said

Regardless of its decision to withdraw as a party, OGS said that NEM's motion to compel should still be denied, stating, "An intervenor party to a Commission proceeding is under no obligation to testify, and NEM cites no authority to suggest otherwise. In addition, there is no prohibition in the law or the Commission’s regulations against unilateral withdrawal of a filing. Voluntary filings, including testimony, have been withdrawn in various Commission proceedings for a myriad of reasons."

"Contemporaneously with the NEM Motion, NEM served a number of Information Requests and Requests for Admission on OGS. Pursuant to Sections 5.3 and 5.5 of the Commission’s Rules, OGS is no longer obligated to respond. Under the Commission’s Rules, discovery applies to parties in a proceeding. Because OGS has withdrawn as a party, it is no longer subject to discovery in these proceedings," OGS said