The Maine Public Utilities Commission voted Wednesday against reconsidering its controversial decision to cut $38 million in proposed funding from an energy-efficiency program popular with Maine homeowners and businesses.
The commission’s 2-1 vote means that providing the funding to the Efficiency Maine Trust will either fall to the Legislature, or potentially, legal action.
Efficiency Maine Trust subsidized the purchase of 2.5 million energy-efficient light bulbs for consumers last year, and it helped more than 3,000 businesses convert to energy-saving equipment. But the PUC voted in March not to provide the funding for the trust, after a close review of language in the 2013 energy law that includes the program showed that a single word was missing, apparently as the result of a clerical error.
The Democratic-controlled House of Representatives last week voted 138-1 to give initial approval to a bill that fixes the error, However, the bill has not yet been voted on in the Republican-controlled Senate. The bills runs the risk of getting pulled into political horse trading over energy issues, as Republican lawmakers try to satisfy Gov. Paul LePage’s request for more oversight of Efficiency Maine and an expansion of his cabinet to include an energy commissioner.
On Wednesday, PUC commissioners Mark Vannoy and Carlisle McLean argued that petitioners for reconsideration had not brought forward additional information to support changing the panel’s March 17 decision. Vannoy and McLean both voted to interpret the 2013 law literally, on the basis of the missing word, even though the public record indicates lawmakers intended that the program receive the $38 million in funding.
Commissioner David Littell opted to consider legislative intent when he cast the single vote to provide the funding on March 17. Littell, the only commissioner not appointed by LePage, also voted to reconsider the decision Wednesday.
The Natural Resources Council of Maine, the Conservation Law Foundation, the Maine Association of Building Efficiency Professionals and the Maine Public Advocate all urged the commission to reconsider its March decision.
The energy law authorized a surcharge on electricity ratepayers – averaging about $3 a month – in order to finance an energy-efficiency program. The Legislature intended to funnel up to $59 million annually toward the Efficiency Maine program, however, the a single word – “and” – was inadvertently dropped during the final drafting of the bill’s language. The PUC vote in March meant program funding would be capped at $22 million rather than the $59 million envisioned by the Legislature.
In his request to have the PUC reconsider its decision in March, Timothy Schneider, the Maine Public Advocate, wrote that the decision didn’t square with its acknowledgment that the 2013 energy law was designed to increase funding for Efficiency Maine. Schneider argued that the decision will “severely limit” the funding requirement set forth in the law.
Littell attempted to make a similar case, arguing that the majority’s interpretation could ultimately create a funding gap for Efficiency Maine when the law was designed to beef up funding.
Vannoy and McLean were not persuaded.
Vannoy said the appeal to reconsider relied on the same information that was presented in March. He also disputed claims that the March decision didn’t align with the 2013 law to increase funding.
McLean addressed the drafting error and her decision not to consider the legislative intent of the law. She said the error survived extensive legislative vetting and that the language was not ambiguous, which would provide legal grounds for the PUC to consider legislative intent. She then argued that the petitioners would not likely push the commission to consider legislative intent if the addition of a word didn’t produce their desired outcome.
“I should not, and will not, embark on divining on what the Legislature meant when the language before is clear,” she said. “This goes for statutes and outcomes I might like and applaud in my personal view as well as those I might disagree with as a personal citizen.
McLean and Vannoy both said that the Legislature is the appropriate body to fix the law. Their decision Wednesday effectively shifts the focus to the State House. Last week the House gave overwhelming first approval to L.D. 1215, sponsored by Rep. Sarah Gideon, D-Freeport. The bill is described as a “clean fix” that adds a missing “and” to the omnibus energy law. However, the bill has not moved in the Senate.
Lawmakers are also considering a bill from LePage to make his energy office a cabinet-level agency and give him the power to appoint the executive director of Efficiency Maine Trust . Some lawmakers have suggested that LePage’s bill and the “clean fix” bill to restore the missing language for Efficiency Maine funding are meant to run on parallel tracks. However, it’s unclear if Democrats have fully endorsed the governor’s plan, meaning the “clean fix” will likely remain stalled until a deal is reached.
Dylan Voorhees, who handles energy issues for the Natural Resources Council of Maine, said Wednesday that he’s hopeful that the Legislature will fix the drafting error. However, he said that his organization stands ready to appeal the PUC decision in Superior Court if a legislative fix falters.
“This whole affair has been rather unfortunate and the commission could have put it to rest this morning,” he said. “They didn’t and that’s disappointing.”
Steve Mistler can be contacted at 791-6345 or at: