The group claiming status as a ratepayer advocacy group in its attempt to get federal regulators to override state net-metering regimes has finally revealed the identity of one of its members. But that revelation appears to strengthen claims by its opponents that it is representing energy industry interests rather than those of ratepayers.
This week, the New England Ratepayers Association (NERA) filed an answer to the thousands of comments opposing its petition asking the Federal Energy Regulatory Commission (FERC) to rule state net-metering policies illegal under federal law.
While the New Hampshire-based 501(c)(4) organization isn’t required to disclose its members or financial backers, its filing did include an affidavit from the only member it has publicly acknowledged to date: Geoffrey Mitchell, a customer of Connecticut utility Unitil. Mitchell wrote that he is “directly and adversely affected where net metering is used to shift costs from customers who are net metering participants to customers who are not.”
Mitchell may be a ratepayer, but he's also president and founder of Brant Energy, a New Hampshire-based consultancy advising utility clients including Eversource, Liberty Utilities and others that have lobbied against net metering in New Hampshire. According to his online biography, Mitchell is also a founder and former executive of natural-gas companies Merrimack Energy Company and First Reserve Gas Company.
Public Citizen, a watchdog group accusing NERA of misrepresenting its status as a ratepayer advocate to mask its backing by energy industry interests, pointed out in a FERC filing that Mitchell is a board member of the Ratepayers Legal Defense Fund, an organization founded by NERA President Marc Brown and James and Michael Sununu, brothers of New Hampshire Gov. Chris Sununu, a net-metering opponent whose 2018 campaign was funded in part by Eversource.
According to Public Citizen, this “undermines NERA’s credibility as an organization representing ratepayer interests” and provides further evidence that NERA is “actively concealing and misleading the Commission about the financial interests that NERA claims to represent.” The group has asked FERC to dismiss NERA’s petition on the grounds that it violates FERC rules that petitioners must disclose their interest in the regulations they're seeking to enact.
“This is a front group,” Tyson Slocum, Public Citizen’s energy program director, said in a Thursday interview. “The fact that the only member they’re willing to identify is a guy who is a president of a consulting firm that works with electric utilities? This whole thing is a sham.”
UPDATE: In an email sent Thursday, NERA President Marc Brown wrote that Mitchell "volunteered to identify himself as an individual residential ratepayer impacted by these policies. As a retired consultant, he understands the industry and how net metering is taking money from non-solar customers by overpaying for rooftop solar." In comments to Utility Dive, Brown said that Mitchell is “essentially retired."
Slocum challenged that assertion, noting that Mitchell is listed as president of Brant Group in a March 2020 filing with the New Hampshire Department of State, and that his company filed a claim last year seeking $49,560 in consulting services payments from then-bankrupt utility Pacific Gas & Electric.
“Geoffrey Mitchell is less a ratepayer, and more aligned with the economic interest of the utility industry,” he said.
Legal and policy arguments around the NEM petition
FERC has seen hundreds of organizations and government agencies and thousands of individuals file comments opposing NERA’s petition that was filed in May. A group led by advocacy organizations Vote Solar and Solar United Neighbors logged opposition to the proposal from 30 state public utility commissions and 35 members of Congress, as well as 31 attorneys general from states ranging from Oklahoma to California.
Nine members of Congress, including former Democratic presidential candidate Sen. Elizabeth Warren (D-Mass.), filed a letter last month asking FERC to reject NERA’s petition, saying it “would overturn long-held precedent and give the federal government decision-making power that has long belonged to the states.”
NERA’s answer states that opposing arguments are “outside the scope of this proceeding and lack merit”; the response reiterates the group's claim that the net-metering regulations now in place in 41 states “distort wholesale market outcomes and investment decisions to the detriment of more efficient resources, including more efficient renewable resources.”
NERA’s argument that net-metered systems should be subject to federal jurisdiction under the Public Utility Regulatory Policies Act or the Federal Power Act is based on the argument that FERC has sole jurisdiction over energy sales from rooftop solar and other distributed generation on the customer side of the meter. Similar legal arguments have failed to convince FERC in the past to alter its policy of allowing states to debate and amend their own net-metering policies.
If NERA’s petition is approved by FERC, it could open up state programs to challenges from utilities in regulatory proceedings and independent lawsuits in federal court, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard University.
NERA has received a handful of comments supporting its petition from groups such as the Taxpayers Protection Alliance and The Heartland Institute. A comment from Michael Boyd, president of a group called Californians for Renewable Energy and the owner of a solar-battery system interconnected to the PG&E grid, argued that the facility should be eligible for standard contracts outside of California’s net-metering regulations.
The Edison Electric Institute, the chief trade organization for U.S. investor-owned utilities, declined to take a position on NERA’s petition last month, although its statement noted that it has “long taken issue with retail net energy metering as both a regressive and poor public policy tool that unfairly shifts electricity costs onto the most vulnerable customers.”