In Search of the Climate Act Safety Valve

Proponents of the New York Climate Leadership & Community Protection Act (Climate Act) don’t acknowledge that there are affordability and reliability safety valves.  Worse, the rate case proceedings ignore them too.  This post documents references to Public Service Law 66-p safety valves in the New York State Department of Public Service (DPS) Document and Matter Management Proceedings.

I am convinced that implementation of the Climate Act net-zero mandates will do more harm than good because the energy density of wind and solar energy is too low and the resource intermittency too variable to ever support a reliable electric system relying on those resources. I have followed the Climate Act since it was first proposed, submitted comments on the Climate Act implementation plan, and have written over 540 articles about New York’s net-zero transition.  The opinions expressed in this article do not reflect the position of any of my previous employers or any other organization I have been associated with, these comments are mine alone.

Overview

The Climate Act established a New York “Net Zero” target (85% reduction in GHG emissions and 15% offset of emissions) by 2050.  The Climate Action Council (CAC) was responsible for preparing the Scoping Plan that outlined how to “achieve the State’s bold clean energy and climate agenda.”  After a year-long review, the Scoping Plan was finalized at the end of 2022.  Since then, the State has been trying to implement the Scoping Plan recommendations through regulations, proceedings, and legislation. 

Safety Valves

Public Service Law (PSL) Section 66-P Establishment of a renewable energy program includes subsection 2 that states that the commission shall establish a program to require that:

1. a minimum of seventy percent of the state wide electric generation secured by jurisdictional load serving entities to meet the electrical energy requirements of all end-use customers in New York state in two thousand thirty shall be generated by renewable energy systems; and
2. that by the year two thousand forty (collectively, the “targets”) the statewide electrical demand system will be zero emissions. In establishing such program, the commission shall consider and where applicable formulate the program to address impacts of the program on safe and adequate electric service in the state under reasonably foreseeable conditions. The commission may, in designing the program, modify the obligations of jurisdictional load serving entities and/or the targets upon consideration of the factors described in this subdivision.

These two requirements are mandates in the Climate Act so Public Service Law 66-P is simply executing those provisions.  It charges the Public Service Commission (PSC) with implementing renewable energy programs but includes feasibility safety valve conditions for affordability and reliability.  Section 66-p (4) states: “The commission may temporarily suspend or modify the obligations under such program provided that the commission, after conducting a hearing as provided in section twenty of this chapter, makes a finding that the program impedes the provision of safe and adequate electric service; the program is likely to impair existing obligations and agreements; and/or that there is a significant increase in arrears or service disconnections that the commission determines is related to the program”.

I have started following some of the rate cases for electric and gas services which are universally requesting markedly higher rates.  Based on what I have found so far. program costs to implement the Climate Act mandates are part of the reason that the costs are increasing.  The rationale to include those programs is that the Climate Act is a law that requires it. Thus far, they have ignored the safety valve provisions of 66-p(4).

The DPS Document and Matter Management (DMM) system is the online repository for all cases before the Public Service Commission.  There are thousands of cases in the system and individual cases can have thousands of filings.  Before the availability of artificial intelligence programs, it was impossible for me to determine how many of the filings in the system referred to the safety valve provisions in 66-p(4).  Now I can check out whether anyone besides me is questioning this requirement.

Response to DMM Safety Valve References Query

This post describes the findings to the following question I posed to Perplexity AI: “In the New York State Department of Public Service Matter Master Proceedings have any of the filings acknowledged Public Service Law Section 66-P, Establishment of a renewable energy program requirements section 66-p (4)?  This section quotes the Perplexity AI response with my annotated comments. Note that I have included links for the references. I want to make the point that AI is not without faults so I do not claim that the following documents are the only ones with references to PSL section 66-p(4).

The order (Case 15-E-0302) adopting the modifications to the Clean Energy Standard for consistency with the Climate Act describes all the provisions of PSL 66-P.  If this reference had not shown up, then the AI search would have failed.

Direct Acknowledgment of PSL Section 66-P(4) in DPS Proceedings

Clean Energy Standard Case (15-E-0302)

The most significant acknowledgment of PSL Section 66-P(4) appears in Case 15-E-0302, the proceeding on the Clean Energy Standard Reference Link 1.In this case, the Commission explicitly recognized that “PSL §66-p(4) provides the Commission with authority to ‘temporarily suspend or modify’ the obligations created by the Program if, after conducting a hearing, it finds that the Program ‘impedes the provision of safe and adequate electric service,’ ‘is likely to impair existing obligations and agreements,’ and/or is related to ‘a significant increase in arrears or service disconnections'”  Reference Link 1.

At least one entity acknowledged that there are bounds to the implementation of the Climate Act.  I do not know if there were others or just this example.

Independent Power Producers Filing

Independent Power Producers of New York, Inc. (IPPNY) filed comments in Case 15-E-0302 that directly reference PSL Section 66-P(4) Reference Link 2. Their filing states that “the CLCPA is also carefully bounded to ensure reliability and affordability, providing that ‘the Commission may temporarily suspend or modify’ the program if it finds ‘that the program impedes the provision of safe and adequate electric service; the program is likely to impair existing obligations and agreements; and/or that there is a significant increase in arrears or service disconnections that the commission determines is related to the program'” Reference Link 2.

The following response illustrates a shortcoming of AI searches.  I suppose I could have refined the search to ask for the number of unique individual stakeholders who referenced 66-p(4) but I did not.  The quotation is from one of my submittals and I know I have referenced this safety valve numerous times.  I suspect that the reference to multiple public comments means the search program found my comments in multiple filings.

Public Comments and Stakeholder Acknowledgment

Individual Stakeholder Comments

Multiple public comments filed in DPS proceedings have acknowledged PSL Section 66-P(4) Reference Link 3. One commenter specifically stated: “Section 66-p (4) states: ‘The commission may temporarily suspend or modify the obligations under such program provided that the commission, after conducting a hearing as provided in section twenty of this chapter, makes a finding that the program impedes the provision of safe and adequate electric service; the program is likely to impair existing obligations and agreements; and/or that there is a significant increase in arrears or service disconnections that the commission determines is related to the program'” Link 3.

The Perplexity AI report incorrectly refers to environmental advocacy comments twice.  In the first instance, the comment was from a renewable developer instead of an advocacy group.

Environmental Advocacy Comments

A September 2024 filing by Darren Suarez directly quotes PSL Section 66-P(4), noting that “the law grants the Commission the power to temporarily suspend or modify the program, but only after a hearing and a specific finding” Reference Link 4. This filing acknowledges the statutory framework while expressing concerns about the State’s ability to meet the legal standards for suspension Link 4.

It is interesting to note that the State Comptroller noted the requirement in its July 2024 audit of Climate Act progress.

State Comptroller’s Office Recognition

The New York State Comptroller’s Office has acknowledged PSL Section 66-P(4) in its audit reports of Climate Act implementation Reference link 5. The Comptroller’s report states: “According to the Climate Act, PSC may temporarily suspend or modify obligations after a hearing if it determines the implementation of the renewable energy program is impeding the provision of safe and reliable electric service, impairing existing obligations or agreements, or resulting in a significant increase in arrears or service disconnections” link 5.

The New York University School of Law Institute for Policy Integrity was referenced but the link provided does not work.

Academic and Legal Analysis

Policy Integration Analysis

Academic and policy analysis documents filed in DPS proceedings have recognized the significance of PSL Section 66-P(4) as a safeguard mechanism Reference Link 6.These analyses acknowledge that while PSL Section 66-p charges the Commission with implementing renewable energy programs, “it does not alter the extent of the Commission’s jurisdiction or authority to do so” and that the Commission should “carry out its responsibilities under PSL Section 66-p within the bounds of its jurisdictional constraints” Link 6.

The second reference to environmental advocacy also mislabeled the commenter.  I am not sure real environmental advocates would count this website as one of their own, but Perplexity AI did.

Stakeholder Process Documentation

Environmental advocacy groups have noted that PSL Section 66-P(4) establishes “safety valve criteria” for renewable energy program implementation Reference Link 7. These comments emphasize that “it is incumbent upon the Commission to define ‘safe and adequate electric service’ and ‘significant increase in arrears or service disconnections’ before the LT Plan is implemented” Link 7.

The reference for the following section is to a PSC order to “measure and track compliance with, and develop and consider proposals to implement, the provisions” of the Climate Act.

Regulatory Framework Context

Commission Authority Recognition

DPS staff documents and Commission orders acknowledge that PSL Section 66-P(4) provides necessary flexibility in renewable energy program implementation Reference Link 8. The Commission has recognized that this provision ensures renewable energy programs can be adjusted if they compromise electric system reliability or create significant customer impacts Link 8.

Procedural Requirements

Several filings acknowledge the specific procedural requirements of PSL Section 66-P(4), particularly the requirement for conducting a hearing “as provided in section twenty” before any suspension or modification can occur Link 1 and Link 3. This procedural safeguard ensures due process in any decision to suspend or modify renewable energy program obligations.

Discussion

The Comptroller report audited Climate Act progress and acknowledges the safety valve and then  makes the ultimate point:

PSC’s mission is to ensure affordable, safe, secure, and reliable access to utility services for the State’s consumers at just and reasonable rates while protecting the natural environment and to stimulate effective competitive markets for clean, renewable, and distributed energy resources along with product and service innovations to benefit consumers. PSC thus must determine the rates are reasonable for both the consumer and the producer so that New York can successfully transition to the level of renewable energy it desires to achieve.

One of the key findings of the Comptroller report addressed affordability:

The costs of transitioning to renewable energy are not known, nor have they been reasonably estimated. Moreover, funding sources to cover those costs have not been identified, leaving the ratepayers as the primary source of funding. The lack of alternative funding sources adds additional risk to whether the State can meet its goals timely. Data shows utility costs have already risen sharply over the last two decades and more New Yorkers are having difficulty paying their utility bills. 

The problem is that PSC has not determined whether the rates are reasonable and the transition can provide safe, secure and reliable energy.  Nor has it established the criteria to trigger a hearing if the program impedes the provision of safe and adequate electric service; the program is likely to impair existing obligations and agreements; and/or that there is a significant increase in arrears or service disconnections that the commission determines is related to the program.

With regards to the rate case expenditures, the utilities are in a difficult spot.  They are under tremendous pressure to invest in mandated programs to achieve Climate Act goals.  However, when they include the costs for those programs the costs go up so much that there is as much pressure to keep the rates down.  In my opinion, their rate case filings should at least acknowledge that there are limits to how much money can be squandered trying to decarbonize New York.

In my opinion, the Hochul Administration is doing everything in its power to hide the costs of Climate Act implementation.  On July 20, 2023 the first annual informational report (“Informational Report”) on the implementation of the Climate Act was released.  It included a description of financial data from 2022.  There hasn’t been an update since the initial report. 

Conclusion

This search for the safety valve provisions in DMM filings found multiple references to it, albeit a large percentage were my submittals that have been mostly ignored.  Importantly there is no sign that the provision has not been addressed by DPS.  This is more consistent with political pressure to focus on renewable energy program expansion than to protect the interests of New York ratepayers.

I recently evaluated National Grid Upstate New York customer in arrears data and found that there has been a significant increase in arrears. On the face of it that could be a safety valve trigger.  However, it is impossible to determine whether there has been a significant increase in arrears related to the Climate Act because there have been no updates to the DPS Informational Report and the other Agency information highlighted by the Comptroller Report. 

Given the magnitude of the rate case proposed increases observed, it long past due for the DPS and NYSERDA to provide sufficient financial status information to determine the impact of the Climate Act.  I believe that the Commission should hold a hearing as provided in PSL 66-P because it is likely that the safety valve triggers have been exceeded.