AUGUSTA – Prospects dimmed Thursday for a quick fix to a one-word error that could cost a state energy-efficiency program up to $38 million.
Republicans and Democrats disagree on how – or perhaps whether – to correct a clerical error in a 2013 law that was intended to provide a new, steady source of income for an Efficiency Maine program that helps Mainers and businesses reduce their electricity usage.
Lawmakers on both sides of the aisle said negotiations continue, but a vote Thursday among legislative leaders made clear that party politics are at play. A Democrat-sponsored bill to re-insert one word – “and” – into the law failed to get past an initial hurdle as Republicans apparently seek more changes to the program that has drawn criticism from the administration of Republican Gov. Paul LePage.
“We are deeply committed to finding a way to make this work, but I will reiterate that we think it should be a clean and easy fix,” said Assistant House Majority Leader Sara Gideon, D-Freeport, the sponsor of the proposed legislation.
The entire debate was sparked over one word in a bill comprised of more than 11,000 words with a $38 million consequence.
In 2013, the Legislature passed a massive energy bill that, among other things, authorized the Public Utilities Commission to raise money for energy-efficiency programs by adding a surcharge onto electricity rates. The Legislature expected the program to raise roughly $59 million, but during the final stages of legislative process a single “and” was accidentally left out of the bill by Legislature’s Revisor’s Office, which writes the language, changing the calculus for funding the program.
On March 17, the Public Utilities Commission voted 2-1 to interpret the bill as written rather than as the Legislature intended. The result is a potential $38 million reduction in funding for the Efficiency Maine program that helped Mainers purchase 2.5 million discounted energy-efficiency lightbulbs last year and that 3,000 businesses used to reduce their electricity costs with rebates or subsidies for a wide range of energy-saving improvements
Efficiency Maine officials, conservation groups, Democratic lawmakers and the one dissenting PUC commissioner contend that the PUC wrongly ignored the intent of the law. The Legislature’s Energy, Utilities and Technology Committee sent a letter to the PUC this week requesting staff materials related to the decision.
One document that has yet to be released publicly but was obtained by the Portland Press Herald lays out the PUC staff’s reading of both sides of the debate. The March 11 staff memo to the three PUC commissioners does not take a definitive position on either side but lays out the arguments for considering the “legislative intent” and the case law for when that is appropriate.
At one point, the staff memo points out that Maine law states: “Any change made by the revisor may not change the substantive meaning of any statutory unit. Any error or inadvertent substantive change made by the revisor must be construed as a clerical error and given no effect.”
The staff memo also acknowledges that the rulemaking record makes clear in several places the Legislature’s intent of a $59 million cap. But the memo also points out that if the wording of the law is deemed to be “clear and unambiguous” – as two of the three PUC commissioners determined – then they need not consider the legislative history behind the law.
The memo ends with a list of 11 “issues for deliberation” as the PUC considered the case. In the end, Commissioners Mark Vannoy and Carlisle McLean voted for a strict, literal interpretation of the law while Commissioner David Littell, who supported looking back at the legislative record, cast the dissenting vote.
Some have questioned whether Vannoy’s and McLean’s votes were influenced by LePage, who appointed them both and whose administration opposed the funding mechanism for the Efficiency Maine program. Littell’s term on the PUC ends March 31, although he plans to stay until the position is filled.
Whether politics were involved in the PUC decision, it is clear that potentially competing political interests are now involved in how to fix the law.
While Democrats push for a single-word fix to the bill, Republicans see an opportunity to make more changes to the state’s energy policy.
House Minority Leader Kenneth Fredette, R-Newport, said he wants to fix the clerical error on the 2013 energy bill that he co-sponsored and helped shepherd through the Legislature. But Fredette and four other Republican leaders on Thursday opposed allowing Gideon’s bill to re-insert the word “and” to be referred to the Legislature for consideration. (Bills introduced after a deadline require approval from the Legislative Council to be considered.)
Fredette said afterward that he remains committed to addressing the issue but that he is working toward a bipartisan solution that will pass the Democratic-controlled House, the Republican-controlled Senate and avoid a LePage veto.
“We continue to talk and work through the process so that we can possibly come out with a bipartisan solution to this that does not become a contest of competing bills and competing agendas,” he said.
Fredette declined to provide specifics about what other changes members of the Republican caucus want to see to the law.
“I think what’s important to recognize here is that the fix requires both affirmative votes in the House and the Senate and the governor’s office,” Fredette said. “So rather than score political points, what I am trying to do is fashion a piece of legislation that can get through all of those bodies.”
His counterpart from across the aisle, Gideon, insisted that Democrats want a “clean and easy fix.”
“It doesn’t mean that we are done talking but we are very committed to honoring that original intent,” Gideon said.
Kevin Miller can be reached at 791-6312 or at:
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