When the Public Service Commission (PSC) of Wisconsin met last December 14 to discuss Docket No. 9300-DR-105, a petition filed by the Midwest Renewable Energy Association (MREA) asking for a declaratory ruling to allow for an unregulated market of third-party ownership to install solar and other distributed energy systems, they unexpectedly gave WECA and the cooperative consumer-members we represent an early Christmas present.
In an unequivocal 3–0 decision, the PSC denied the request for a declaratory ruling on third-party solar brought forth by MREA. In the petition for a declaratory ruling, MREA argued “that third-party financed distributed energy resources (DERs) are not ‘public utilities’ as defined in Wisconsin Statute section 196.01(5)(a)2 and, therefore, are not subject to the PSC’s jurisdiction under any statute or rule regulating public utilities.” From our perspective, this was an attempt to circumvent any regulatory authority and operate as unregulated third-party entities, even putting aside adequate consumer protections for individuals who would be exposed to this unregulated financing scheme.
As has been discussed in this column many times over the last couple of years, WECA has taken a strong stance against third-party ownership if it fails to meet certain criteria, but most importantly, we will continue to fight against unregulated schemes that do not adequately and sufficiently protect our consumer-members. I have written about the fallout from bad actors like defunct and bankrupt Moxie Solar and Sun Badger Solar, who scammed potential solar consumers out of thousands of dollars. We have brought to your attention the need for the Wisconsin Consumer Act to apply to any third-party ownership agreement so energy consumers have full protection since utility laws would not bind these financing entities under Chapter 196 of state statutes. We have also discussed that it’s not fair for ALL cooperative consumer-members when those who sign into a third-party ownership agreement are subsidized by the remaining cooperative members.
What is a bit unusual in this case is that the PSC went to extraordinary lengths in giving MREA the ability to bolster their legal arguments in favor of a declaratory ruling, and MREA still punted.
Over a year ago, when the case was first presented to the PSC, then-commissioner Ellen Nowak publicly chastised her colleagues when she stated we “were all in agreement that MREA’s petition was deficient, and the facts presented did not warrant a ruling in its favor. The proper action by an adjudicator in that instance is dismissal. But the majority exceeded its discretion and authority by sending the petition back to MREA and asked it to bring a set of facts that it could decide. That is not the role of a regulator or adjudicator.”
Nowak added, “Remarkably, the majority is not just telling MREA to craft a new or amended petition, but it is even helping craft the petition by asking MREA to consider technologies and generation sources that were not even part of its original petition… This is a dangerous course for the Wisconsin Public Service Commission.” So, all MREA had to do was answer a few more questions that the PSC presented to them in the docket, but instead, they got crickets because their legal arguments did not hold up, and their intent would be exposed for what it is—the statewide expanse of a completely unregulated third-party financing scheme.
Nowak’s replacement on the PSC, Summer Strand, perfectly summed it up at the December PSC meeting when she said, “We telegraph for them [MREA] what we wanted, and we didn’t receive it.”
Unfortunately, the case is not completely gone yet. Once the PSC issues its written decision on the docket, MREA has 30 days to appeal the decision in circuit court. WECA will keep you apprised of any new developments.