PUCO / screen capture
An order empowers the chair or vice-chair to take unilateral action if a quorum isn’t practical or feasible.
UPDATE Friday, March 20, 11:45 a.m. EDT: Public Utilities Commission of Ohio Chair Sam Randazzo briefly commented on the single-commissioner delegation provision at the commission’s March 20 meeting.
“We have delegated the authority to myself and Commissioner Trombold to act in the event that we can’t get together. But that’s not our preferred course of action,” he said. “So we are going to continue to try and have at least three commissioners when we need to issue a decision, like the one we’re going to issue today.”
The latest emergency order suspends nonessential in-person checks on utility equipment inside customer homes, such as checks on gas meter functioning. It also provides more details on the suspension of automatic approvals, which was ordered last week. Any utility requests for incremental cost increases will be taken up “on a case-by-case basis, recognizing that our time and attention is being focused presently on the things we need to do to manage the COVID-19 spread risk,” Randazzo said.
“We’re working towards having a regularly scheduled meeting on March the 25th and we’ll see you then,” he added.
The Public Utilities Commission of Ohio has gotten out in front of the coronavirus epidemic with emergency orders aimed at protecting consumers from utility shut-offs. But a provision for individual action by just the chair or vice-chair could test the limits of the commission’s authority.
The PUCO’s first emergency order on the coronavirus pandemic came on March 12, three days after Gov. Mike DeWine’s executive order declaring a state of emergency in Ohio.
“Last week the PUCO took action to be sure utilities are not disconnecting customers for nonpayment during the state of emergency,” said commission spokesperson Matt Schilling. A follow-up order on March 13 expanded the emergency directives to include situations where customers may need reconnections of utility service.
As of March 17, American Electric Power, Dayton Power and Light, FirstEnergy, and Duke’s utilities were all suspending disconnections at least temporarily, according to information compiled by the Energy and Policy Institute. In most cases, usage charges will continue to accrue.
Other parts of the March 12 PUCO order dealt with procedure changes during the public health emergency. Among them is a provision that makes Chair Sam Randazzo or deputy chair Beth Trombold “individually empowered to act and make decisions on behalf of the full Commission that are necessary to address and mitigate the impacts of that emergency.” The provision kicks in if either of them judges that it is “not practical or feasible to convene a quorum of commissioners.”
Schilling did not elaborate on what those conditions might be or whether there is any precedent for convening commission meetings via phone or a webinar/webcast set-up. “The Commission speaks through its orders,” he said.
However, there are ambiguities.
“The most sensible interpretation is that the chair is authorized to act unilaterally to take actions necessary to comply with the executive order,” said Mark Whitt, a regulatory lawyer with Whitt Sturdevant in Columbus, who commented in his individual capacity and not on behalf of any client.
Examples of such things could include requiring employees to work from home, going outside of usual procurement channels for emergency supplies, dealing with employee travel issues and so forth.
“I do not believe the order purports to waive the quorum requirement for action in specific cases,” Whitt said. If that’s correct, “then the commission order makes sense,” he added. “Someone needs to be in charge.”
At the same time, he agreed that technology alternatives for meetings could “make it unnecessary to ‘suspend’ the statutory quorum requirement.”
Individual action might also make sense if two or more commissioners become ill or must care for a sick family member during the epidemic. Three commissioners fall into the 60-and-over age group, which faces higher risks from COVID-19.
The commission did have a quorum March 17 when it ordered a temporary halt to door-to-door marketing by competitive gas and electric suppliers. The Office of the Ohio Consumers’ Counsel sought that change in comments filed on March 16. “Door-to-door sales of energy are inherently problematic for consumers, but now are an unacceptable risk during the public health emergency,” said those comments.
And an administrative law judge’s order on March 16 has suspended deadlines for various filings. That order also holds up automatic approvals for renewable energy certifications, businesses’ commitments of demand reduction and energy efficiency resources, and certifications for competitive retail suppliers of gas or electricity. Commission timeframes to act on various applications also are tolled.
PUCO authority for emergency orders goes back to 1911, former commissioner Sally Bloomfield reported in the Ohio State Law Journal in 1976. The statute’s current language lets the commission amend, alter or suspend rates when “necessary to prevent injury to the business or interests of the public or of any public utility of this state in case of any emergency to be judged by the commission.”
The commission relied on the statute three years ago in a 2017 case imposing extra charges on Youngstown Thermal customers when it went into receivership. Cases during the 1970s involved situations where utility rates did not keep up with rapid inflation. Bloomfield noted earlier cases as well.
The PUCO also relied on emergency authority when it first told utilities to set up Percentage of Income Payment Plans for low-income customers in 1983. That emergency action stood up to challenges. However, the Supreme Court of Ohio rejected the commission’s use of emergency authority to let gas companies recover unpaid amounts as part of the fuel component in their rates.
So, there are prior cases allowing the PUCO to exercise emergency authority. But there is also at least one instance in which a reviewing court found that authority had limits.
For now, “the only certainty is uncertainty,” Whitt said. Any review of the PUCO’s recent emergency orders or their parts would need to wait until someone challenges them or their parts. So far, no one has come forward to do that.
“On the whole, the commission and chair have shown commendable leadership,” Whitt said. “Sometimes it is better to ask for forgiveness than for permission,” he added.
The commission’s next regularly scheduled meeting was supposed to be March 25. Then the PUCO issued an agenda for another special meeting today, March 20, for consideration of yet another proposed entry on procedures during the declared state of emergency.