FERC Clears Way for Action Against Alabama Regulators for Approving Discriminatory Solar Charges

WASHINGTON, D.C. – The Federal Energy Regulatory Commission (FERC) has declined to grant a petition asking it to initiate an enforcement action against the Alabama Public Service Commission (PSC) for allowing Alabama Power to impose punitive charges against customers with rooftop or on-site solar. FERC’s decision clears the way for the petitioners to pursue their case against the PSC in federal court.

In a joint concurrence statement FERC Chairman Glick and Commissioner Clements wrote separately to express their concern that the PSC may be violating federal law by discouraging rooftop or customer-sited solar growth in Alabama.

The petition was filed by the Southern Environmental Law Center (SELC) and Ragsdale LLC on behalf of Birmingham-based nonprofit GASP and four Alabama Power customers who invested in solar installations on their properties. The four customers are paying a monthly fee for what Alabama Power claims is “back-up service,” but which in reality is designed to protect the utility’s revenues from sales lost due to solar adoption. Alabama Power does not assess similar charges against customers who reduce usage by means other than investing in rooftop or on-site generation.

The petition asked FERC to initiate an enforcement action against the PSC to implement the federal Public Utility Regulatory Policies Act (PURPA), which protects solar customers from unfair treatment by their utility. The petition was a necessary prerequisite to GASP and the customers pursuing their own enforcement claim in federal court.

FERC’s decision not to enforce was expected, given the agency’s historical reluctance to initiate such actions. In their joint statement, Commissioners Clements and Glick found that “[p]etitioners have presented a strong case that the Alabama Commission failed to adhere to regulations set forth in FERC Order No. 69 [FERC’s order establishing its PURPA regulations], violating the requirements of [federal law].” FERC’s decision not to enforce means that petitioners may now themselves bring an enforcement action against the PSC in the appropriate court.

“We are pleased that Chairman Glick and Commissioner Clements recognize the apparent illegality in how Alabama Power, with the full support of the Alabama Public Service Commission, is treating customers who make private investments in rooftop or customer-sited solar,” said Keith Johnston, Director of SELC’s Alabama office. “We are now prepared to take the next step of seeking relief from a federal district court so that Alabama Power customers can finally reap the benefits of solar to the same degree as customers in other solar-rich states.”

“Rather than protect customers from monopoly overreach, the Alabama Public Service Commission is allowing Alabama Power to single out solar customers with excessive and unnecessary charges,” said GASP Executive Director, Michael Hansen. “There is no question that this unjust, discriminatory treatment of solar customers is stifling solar growth across the state, and undermines PURPA’s basic aim of encouraging the development of solar.”

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About GASP: GASP is a nonprofit health advocacy organization based in Birmingham, Ala. Our mission is to advance healthy air and environmental justice in the greater-Birmingham area through education, advocacy, and collaboration. We strive to reduce exposure to air pollution, educate the public on the health risks associated with poor air quality, and encourage community leaders to serve as role models by advocating for clean air and clean energy. GASPgroup.org

About Ragsdale LLC:

Founded in 1991, Ragsdale LLC has been representing individuals and small businesses in civil lawsuits for 35 years. Using our experience and knowledge of law and the court system, our areas of practice include environmental and pollution claims, personal injury and death, securities fraud and class actions, fraud and contract disputes, and whistleblower claims. www.RagsdaleLLC.com