SB237 was approved by the Governor last week. SB237 increases the annual maximum allowable limit of the Direct Access service program by 4,000 gigawatt hours for non-residential customers. The increase is to be apportioned across the electric utility service territories. The Commission must issue an Order to that effect by June 1, 2019, and the Order must also provide that existing residential and non-residential direct access accounts as of January 1, 2019, remain authorized to participate. By June 1, 2020, the Commission is to provide recommendations to the legislature on a phase-in period over which all other non-residential customers can participate in direct transactions. The full text of SB237 is available on the NEM website.

In its decision on the 2019 operations plan for the Electric Universal Service Program, the Commission addressed a request made by OPC for additional information on the use of energy assistance funds. Specifically, OPC requested that the utilities provide "data to evaluate the impact of charges by retail energy suppliers on electric and natural gas bills of low-income families participating in EUSP and in the Maryland Energy Assistance Program (MEAP)." The Commission found that "the topic merits further exploration and discussion." The Commission noted that some of the data OPC is seeking is already available to it through an "agency portal" and the Commission's website. The Commission also directed that "at a minimum, the utilities should provide to OPC the number of EUSP (and MEAP) customers that receive electric or gas supply from a retail supplier. However, the Commission will not direct the utilities to provide the total aggregate amounts those customers paid in retail supply charges and the total aggregate amount those customers would have paid for default (SOS) service from the utility. The Commission finds that further discussion among the stakeholders is needed at this time."

The full text of the Order is available on the NEM Website.

The Second Circuit Court of Appeals issued a decision upholding the New York Public Service Commission's zero emissions credit (ZEC) program. The Court rejected the argument that the ZEC program was preempted under the Federal Power Act. "New York has kept the line in sight, and gone as near as can be without crossing it. ZECs are created when electricity is produced in a statutorily-defined manner, regardless of whether or how the electricity is ultimately sold. They are defined as 'the zero-emissions attributes of one megawatt-hour of electricity production by an eligible Zero Carbon Electric Generating Facility.' . . . even though the ZEC program exerts downward pressure on wholesale electricity rates, that incidental effect is insufficient to state a claim for field preemption under the FPA." With respect to conflict preemption, the Court said "[t]o the extent the ZEC program distorts an efficient wholesale market, it does so by increasing revenues for qualifying nuclear plants, which in turn increases the supply of electricity, which in turn lowers auction clearing prices. But that is (at best) an incidental effect resulting from New York's regulation of producers. In any event, ZECs do not guarantee a certain wholesale price that displaces the NYISO auction price."

The Court found that the challengers lacked standing to assert that the ZEC program violated the dormant Commerce Clause of the Constitution. "Because Plaintiffs' asserted injuries are not traceable to the alleged discrimination against out-of-state entities, but (rather) arises from their production of energy using fuels that New York disfavors, they lack Article III standing to challenge the ZEC program."

The full text of the Decision is available on the NEM website.