The chair of the Legislative Committee on Administrative Rules repeatedly questioned the Public Service Board’s authority to put the rules into effect on Jan. 1.
Typically, rules are reviewed by the panel before they are implemented.
Members of the Legislative Committee on Administrative Rules decided Thursday to postpone any action on the rules for up to two weeks.
Legislators must now ensure that the Public Service Board rules match legislative intent, as spelled out in state statute, more than a month after adoption.
The rules address the popular net metering program often used by homeowners, which has in recent years led to solar development that has dramatically outpaced legislators’ expectations.
The rules require many new solar projects to be built in places like gravel pits, brownfields and parking lots. This addresses what many municipalities wanted — fewer solar arrays in cow pastures — but is expected to increase the cost.
The rules also address the assets called renewable energy credits for wind, solar or hydro. Under the new rules, utilities will purchase most of the credits from net-metered power produced in Vermont. This will effectively increase the amount of electricity that is deemed renewable within the state but is also predicted to push rates up, especially if renewable development continues at the current pace.
“It has to be a balancing act,” said Rep. Robin Chesnut-Tangerman, P-Middletown Springs, a member of the administrative rules panel. “It’s difficult to expand net metering while striving for lower cost. … I’m very sympathetic to the fact that (the Public Service Board) has those goals in tension that they need to reconcile.”
Some on the panel are questioning the board’s authority to adopt the rules.
The Legislature, in Act 99, directed the PSB in 2014 to draft rules for implementing a new net metering program by Jan. 1, 2016, after a public hearing and comment process.
But Act 99 says that if the board “is unable to finally adopt the rules by July 1, 2016,” it could unilaterally put into effect a new program at the start of this year “if that order is followed by final adoption of rules for this program within a reasonable period.”
The board, he said, not the Legislature caused the delay.
“They’re all people of basically good faith, who kind of set the normal rules aside in order to streamline a particular problem, and instead of it moving through with less complications it has dragged through and has been more complicated than it ever should have been,” MacDonald said.
MacDonald said that authority was supposed to let the board adopt the rules once they’d been reviewed by the Legislature. Instead, the final draft wasn’t submitted to LCAR until 20 days after the rules took effect.
On Thursday he repeatedly questioned whether the PSB overstepped.
“In this rule are a substantial number of areas where the Legislature clearly delegated such authority to the Public Service Board,” he said. “And, in those rules are areas where the board may well have acted in the absence of legislative authority.”
But even some critics of the Public Service Board’s actions say the board went through an extraordinarily thorough public process that included numerous hearings and revisions over years.
“We’ve been asking the Public Service Board to do a better job of public engagement, and that’s what they did here,” said Rep. Amy Sheldon, D-Middlebury, a member of the administrative rules committee. “I understand why we are where we are.”
The board’s long delay resulted from a commendable effort to tailor the rules to the wishes of the general public, Sheldon said. The rules appear to have satisfied many competing interests, she said.
There are several policy areas where legislators say they wish they’d had the chance to make changes before the rules were implemented.
The rules eliminate caps on net metering. At the same time, the rules lower the rates utilities pay customers for excess power from net metering.
MacDonald said the rules might unacceptably slow new renewable energy development. Sheldon said they might encourage new renewable energy development more than legislators or the public wants.
Both say they don’t feel they’ve had sufficient time to fully hash out the issues surrounding the rules.
MacDonald’s committee has no authority to amend the rules.
LCAR’s charge is quite limited: to review whether proposed rules fulfill legislative intent, whether the rules are arbitrary and capricious, and whether they came after sufficient public engagement. If rules fail to meet those standards, the committee can send them back for revision.
The full Legislature can change the rules, however. LCAR members on Thursday put off any decision on the rules for up to two weeks, to give other committees the opportunity to vet the rules and potentially amend them.
Chesnut-Tangerman said he’s inclined to approve the rules and to allow lawmakers, through new legislation, to tinker with them as they see fit. The rules are extremely complex, he said, and legislators wrote Act 99 in a way that would give them a full legislative session for review; the two-week delay that LCAR members instead agreed upon Thursday might not be enough.
