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On July 16, 2020, the Federal Energy Regulatory Commission (“FERC”) issued an Order dismissing New England Ratepayers Association’s (“NERA”) petition for declaratory order concerning net energy metering (Docket No. EL20-42-000). NERA had asked FERC to declare that it has jurisdiction over energy sales from rooftop solar facilities and other distributed generation located on the customer side of the retail meter where the output of the generators is not used to serve demand behind the customer’s meter. NERA had argued that such excess sales are wholesale sales in interstate commerce, which should be priced at the utility’s avoided cost of energy if the sale is made pursuant to Public Utility Regulatory Policies Act of 1978 (“PURPA”) or a just and reasonable wholesale rate if the sale is made pursuant to the Federal Power Act (“FPA”).

 FERC decided to dismiss the Petition on the basis of its exercise of discretion under the Administrative Procedure Act in addressing petitions, finding that the issues presented in the petition do not warrant a generic statement from FERC at this time. Additionally, FERC did not identify a specific controversy or harm that FERC could address in a declaratory order, differentiating this petition from previous net metering cases MidAmerican and SunEdison that related to specific net metering programs or specific net metering program participants. FERC also did not find the Petition to meet the requirements for enforcement under PURPA section 210(h). Specifically, NERA is not an electric utility, a qualifying small power production facility, or a qualifying cogeneration facility. Concurring statements submitted by Commissioner McNamee and Commissioner Danly reaffirmed that FERC’s dismissal of the Petition was not a ruling on the merits or the substance of the Petition. Commissioner Danly also raised concern that the dismissal of the petition on procedural grounds will result in a patchwork of rulings by federal courts.

NERA, and other parties in support of NERA’s Petition, may seek rehearing of FERC’s Order by August 17, 2020.

FERC’s Order is available here.

For more information regarding this matter, please contact Jeff Genzer, Sean Neal and Kristen Connolly McCullough.