A legal challenge to new rules that opponents say will reduce the incentives for homeowners to install solar power systems was likened to a reverse Robin Hood scheme Wednesday before the Maine Supreme Judicial Court.
Tony Buxton, the lawyer representing the Conservation Law Foundation, said the state Public Utilities Commission’s plan to reduce the credit for excess energy that’s put back into the power grid by home solar generators amounts to a fee. And that fee is imposed on those who draw less electricity from the grid while providing electricity for other users.
“This is like our grocers charging us for the vegetables we grow in our own gardens,” he told the justices.
Current rules require utilities to provide a credit, at the full retail price, for the extra electricity that home solar power systems generate and put back into the grid for other consumers to use.
It’s an approach called “net metering” and is in place in much of the country. It was developed when roof-mounted solar panels were relatively new, and expensive, and was designed to encourage homeowners to generate much of their own electricity from a renewable, non-polluting source.
But critics, including Maine Gov. Paul LePage, said net metering shifts costs to other customers and doesn’t compensate utilities for the cost of erecting and maintaining power distribution systems.
A bill to require the PUC to keep net-metering rules in place while it studies the costs and benefits of solar power passed the Legislature this year, but was vetoed by LePage. Lawmakers then failed to get the two-thirds vote required for an override.
The PUC has proposed grandfathering the credit for current solar array owners for 15 years. But residents who install new systems would get a lower credit – 90 percent of the current credit – for 15 years. The lower credit would apply to the cost of power distribution; the credit for energy supplied to the grid would remain the same.
This month, the PUC decided to delay implementation of its new rule until April 30. That allows time for the Legislature to consider modifications to the law as well as four months for the Supreme Judicial Court to issue a ruling on the Conservation Law Foundation’s challenge.
On Wednesday, Chief Justice Leigh Saufley questioned whether the challenge should even be before the state’s top court. She noted that, under Maine law, challenges to PUC rules typically go before Superior Court judges first, but the law foundation appealed directly to the Supreme Judicial Court.
Buxton said the PUC’s rule is actually a rate change, which can be appealed directly to the higher-level court. The new rules, he said, affect how much those with home solar systems will pay on their bills, so the PUC essentially adopted a new rate in setting up the new credit program.
The court could decide that the matter first needs to be heard by a lower court, placing the foundation’s challenge before a Superior Court judge.
Mitchell Tannenbaum, the lawyer representing the PUC, largely sidestepped that issue, arguing that adjustments to programs designed to encourage changes in the marketplace are inevitably made over time as the need for incentives eases. The PUC said the new plan seeks to lessen the impact on other ratepayers and also represents falling costs for solar electric panels.
“This is what is always done with incentive programs,” he said.
But Sauffley seemed dubious of Tannenbaum’s effort to characterize the new rules as relatively minor, technical changes to the program.
“This rule is a very blunt instrument,” she said.
Buxton also argued that the new rules represent an illegal “exit fee” on those trying to largely disengage from the electric grid, that the PUC violated some of the rules of its regulatory process in adopting the new approach, and that the changes run counter to state policies aimed at encouraging the development of solar power.
There’s no indication of when the court might rule. The state’s top court typically takes three or four months to rule on appeals.
Edward D. Murphy can be contacted at 791-6465 or at:
emurphy@pressherald.com
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