A group of unlikely allies are pushing back against a proposal that could limit participation in future cases before the New Hampshire’s Public Utilities Commission and make other changes to the agency’s proceedings.
Critics say the commissioners are trying to change their agency’s rules in ways that could make energy regulation less open and transparent.
The commission, which regulates the state’s electric utility companies and shapes major energy policies, has undergone significant changes since Gov. Chris Sununu created the New Hampshire Department of Energy in 2021. Now, both the commission and the department need to develop new sets of rules for themselves, which are due in 2027.
In filings over the course of the summer, state energy officials and advocates have asked the commissioners to slow down their process for adopting the new rules, which has moved unusually quickly. In comments to NHPR last week, the commission did not show any sign of changing course.
Don Kreis, New Hampshire’s consumer advocate, said he sees the proposal as the commission’s attempt to “radically transform itself” in a way that could harm electricity customers.
Under the existing rules, the commission acts like a court, with the commissioners as judges. They sit on a bench in a hearing room, and different parties with different interests present evidence and argue their cases.
“Under these new rules, the Commission would basically be also serving as a prosecutor of sorts, actually developing evidence and kind of tilting the playing field in the direction of outcomes that it prefers,” he said.
An unlikely coalition warns against limiting participation
The proposed rules are facing widespread criticism from many who participate in their hearings – the state’s consumer advocate, officials at the Department of Energy, and a group of organizations that advocate for a wide variety of causes.
Those organizations include an association that represents the interests of power plants in the region, environmental and clean energy advocates, and a social services agency. The groups are often found arguing against one another in front of the commission, but they came together to send a letter last week to express their joint concerns to commissioners.
One of their primary concerns is that the proposed rule changes would limit participation in commission hearings to people who would be “directly injured” by the case at hand.
Dan Dolan, the president of the New England Power Generators Association, said he’s worried that could permanently bar any coalitions — like trade associations, advocacy organizations, and consumer advocates — from participating in regulatory proceedings.
Since utility regulation can be very technical, those coalitions generally have specialists – economists, lawyers or engineers – who are responsible for weighing in on regulatory decisions, making arguments in front of the commissioners as if they were judges in a court.
Dolan says limiting those specialists’ participation would make it harder for individual energy consumers or companies to find a voice in Public Utilities Commission proceedings.
“In practice, I think what you would see is very little participation in these regulatory dockets that govern tens of billions of dollars of economic activity in the state of New Hampshire. And what that then means is much less rigorous oversight, a much more thin record,” he said. “It then defaults to whatever the Public Utilities Commission and their staff view as the right outcome.”
The change would come at a time when the kinds of issues that end up in front of the Public Utilities Commission are emerging as political crossroads and growing in economic importance.
Electricity demand is rising, many are working to transition away from the fossil fuels that drive climate change, and new infrastructure proposals are coming forward that could shape how the grid looks in the future.
“The temperature has been raised on a lot of these issues,” Dolan said. “But to me, the answer to that is not to shroud everything in more secrecy. If anything, we do need to open it up.”
Meredith Hatfield, associate director of policy and government relations at The Nature Conservancy’s New Hampshire chapter, is also part of the coalition opposing the proposed rule change. She said participating in dockets at the Public Utilities Commission is an important way for the organization to do their advocacy work, particularly when it comes to deploying more clean energy.
“That need for transparency, that need for the public and members of organizations with interest in those issues to be able to have clear, understandable processes to follow is a key part of being able to engage in public decision making, that's really what drove us to get engaged,” she said.
Hatfield was previously New Hampshire’s consumer advocate and has practiced before the commission for more than two decades. She said the proposal from the commissioners was “out of the ordinary.”
One of her concerns is that the proposed rules could allow commissioners to stop considering settlement agreements and to reject stipulations of fact – documents that lay out the facts of a case that all parties have agreed on.
“If you have ratepayers and utilities and everyone else saying, ‘we think this is a just and reasonable and fair outcome of a case,’ how can the Commission not even consider that? That really seems like it runs counter to basic principles and as well as New Hampshire law,” she said.
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Policymakers or regulators?
Hatfield also said the current commissioners have taken an unusual approach to Public Utilities Commission proceedings: expressing opinions and skepticism, and asking for information a commissioner wouldn’t typically ask for, like live spreadsheets.
Kreis, who currently advocates for ratepayers in front of the commission, said he’s also seen commissioners more overtly expressed policy agendas, which he sees as potentially detrimental to ratepayers.
“I think that the PUC commissioners are hostile to energy efficiency,” he said. “I think they're hostile to dynamic initiatives that are designed to make the grid more flexible for consumers, and certainly initiatives that are designed to help poor people afford their energy.”
Kreis said he’s observed Public Utilities Commissioners expressing a preference for market-based solutions to energy issues.
“I think that's a policy agenda that is capable of being debated back and forth,” he said. “But I don't think it's a policy agenda the PUC should be free to pursue.”
When the Department of Energy was created in 2021, officials there were expected to take over policymaking and planning responsibilities, while the Public Utilities Commission would be left to focus on regulating.
Chris Ellms, the assistant commissioner of that department, says from his perspective, the agencies’ roles are clear. The department is responsible for directing policy, defending public interest, and building the record of evidence within cases before the PUC.
The Public Utilities Commission, he said, is meant to adjudicate. “They decide and resolve disputes,” he said.
Many parties that have filed comments on the rules have urged the commissioners to slow down and go back to the drawing board. During a hearing earlier this summer about the new rules, a representative from the Department of Energy asked the commission to withdraw their proposal entirely.
Since both agencies have until 2027 to adopt new rules, officials with the department wanted the chance to work collaboratively. If the commission didn’t withdraw the rules, a department official said they would need a two-and-a-half month extension to articulate their concerns.
Those concerns included worries about how new responsibilities would impact the department financially, since the agency would need to meet shorter deadlines to develop their own rules.
The commission’s proposal would also put new requirements on the Department of Energy, forcing them to file statements of their positions earlier in a hearing process than other parties.
“If we're given requirements and restrictions that other parties don't have to follow, it gives the utilities an advantage and it's our ratepayers who would lose out,” Ellms said.
The commission extended the deadline for comments by 30 days. The comment period ended last week, and the Commission doesn’t seem to have plans to return to square one.
“The Commission appreciates all the comments received and is in the process of reviewing the comments and preparing its updated draft rules to be circulated to the docket,” Michelle Bunnemeyer, a staff attorney for the Public Utilities Commission, said in an email. The commission, she said, will send a report to the Office of Legislative Services with its final proposal.
