DOVER, Del. (AP) - A judge has rejected a challenge by state environmental officials to rules issued by Delaware utility regulators regarding renewable energy requirements.
The judge on Monday ruled that the Department of Natural Resources and Environmental Control has no standing to challenge regulations issued by the Public Service Commission.
Superior Court Judge Ferris Wharton agreed with the commission and the state Division of the Public Advocate that DNREC had no standing to sue because it was neither a “person” nor “aggrieved” under Delaware’s Administrative Procedures Act. Environmental secretary Shawn Garvin did not respond to an email seeking comment, but a spokesman said the agency is reviewing the decision and will discuss its options.
The ruling is the latest development in a long-running legal dispute over which state agency has authority to develop regulations regarding how minimum renewable energy purchase requirements can be frozen if they become too costly for ratepayers.
In 2005, lawmakers passed theRenewable Energy Portfolio Standards Act, which requires electric utilities to purchase a portion of their supply from renewable energy resources. Lawmakers later amended the act to permit DNREC and the Public Service Commission,in consultation with each other, to freeze the minimum renewable energy purchase requirements when the cost of compliance exceeds certain thresholds. At the same time, they authorized thecommission to specify procedures for freezing the minimum purchase requirements.
Under the law, DNREC, in consultation with the commission, was allowed to freeze the minimum requirement if it determined that the cost of compliance exceeds 3% of the total retail cost of electricity for retail suppliers during the same compliance year.
The commission issued regulations in 2011 regarding implementing a freeze. Four years later, the Division of the Public Advocate,which represents utility customers, sought more detailed regulations from the commission regarding how and when the cost of compliance and total retail cost of electricity would be calculated.
The commission, backed by DNREC, refused the request,ruling that DNREC had the primary responsibility for issuing regulations governing when a freeze could be declared.
The DPA then filed a lawsuit. A judge declared in 2016 that lawmakers granted the PSC, not DNREC, explicit authority to develop regulations regarding a freeze. In compliance with the court ruling, the commission then adopted such regulations in 2017.
Undaunted, DNREC filed a lawsuit in 2018, claiming that the commission adopted unlawful regulations that usurped its authority.
“The optics of this case are not attractive,” Wharton noted, pointing out that the case pitted two state agencies against each other, with a third state agency, the DPA, intervening and represented by yet a fourth government body, the attorney general’s office.
“The taxpaying citizens of the state might fairly ask, ’What is going on here?” Wharton wrote. “Is the state suing itself? Is this how our government is supposed to work?”
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