In May I described my Personal Statement on Niagara Mohawk Rate Case Joint Proposal (JP). The article mentioned that the statement argued that the JP does not acknowledge New York Public Service Law safety valves. This article describes the response to that argument by the Department of Public Services (DPS).
The New York Department of Public Service (DPS) “has a broad mandate to ensure access to safe, reliable utility service at just and reasonable rates.” The New York Climate Leadership & Community Protection Act (Climate Act) DPS implementation process proceeds because the law says so while at the same time DPS ignores another law that says that there are limits. This is an update to an earlier post about Climate Act Safety Valves.
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
My previous article about safety valves described Public Service Law (PSL) Section 66-P Establishment of a renewable energy program that provides for bounds on implementation. 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”.
A couple of months ago I joined Constantine Kontogiannis in a submittal in the Niagara Mohawk Power Corporation dba National Grid (NMPC) rate case proceeding. I posted an article describing our statement in opposition to the Joint Proposal (JP) settlement plan. In one of our arguments, we addressed these safety valve provisions. It was included to force the PSC to acknowledge that the safety valves must be addressed. The submittal included an attachment that was summed up in my analysis that showed that the number of people in arrears has significantly increased since the start of the Climate Act transition which I believe should trigger the DPS to consider a Section 66-p (4) hearing. Our statement concluded that it is inappropriate to invest in Climate Act programs until the PSC defines the criteria for the Section 66-p(4) safety valves, institutes a tracking system, and determines if the Climate Act implementation should be suspended or modified.
The DPS Staff Reply Statement in Support of the JP addressed issues raised in my Statement in Opposition to the Joint Proposal dated May 14, 2025. The following quotes the relevant text in the Reply Statement with my annotated comments. For readability the footnotes are not included. The following is the introduction to the response.
A Statement in Opposition to the Joint Proposal filed by Roger Caiazza and Constantine Kontogiannis (Caiazza and Kontogiannis) raises various issues, which will be address in turn, below. However, the issues alleged by Caiazza and Kontogiannis largely concern the CLCPA. The CLCPA, adopted in 2019, established a nation-leading effort to reduce greenhouse gas emissions and respond to the effects thereof across New York State.
As discussed in Staff’s Initial Statement in Support, the text of the CLCPA includes directives for the Commission. CLCPA §7(2) requires the Commission to consider whether its decisions are inconsistent with or will interfere with the attainment of the statewide greenhouse gas emissions limits established in article 75 of the environmental conservation law.
The following text makes the point that DPS must follow the law. However, they ignore the inconvenient fact that PSL-66(p) is a law too. By not acknowledging that provision DPS fails their “broad mandate to ensure access to safe, reliable utility service at just and reasonable rates.”
Further, pursuant to CLCPA §7(3), the Commission shall not disproportionately burden disadvantaged communities and shall prioritize reductions of greenhouse gas emissions and co-pollutants in disadvantaged communities. Caiazza and Kontogiannis’ arguments regarding the CLCPA ignore the fact that the aforementioned provisions of the CLCPA are statutory requirements that the Commission is obligated to comply with.
The next statement refers to an argument that we made noting that the items that give priority to certain classes of ratepayers necessarily increases costs for everyone else. This will exacerbate the costs of the program for the other ratepayer classes and likely increase the number who need support to survive. In the absence of an update to the mandatory Informational Report that documents ratepayer impacts, it is impossible to quantify those impacts.
Moreover, as discussed throughout the Joint Proposal, and in Staff’s Statement in Support, the items that would help meet the goals of the CLCPA have been included to support ratepayers and are not a “substantial detriment” to ratepayers.
The next statement passes the buck of responsibility for affordability to another proceeding:
Finally, the issues raised by Caiazza and Kontogiannis regarding the CLCPA are beyond the scope of this rate case. The Commission has instituted a proceeding to address the CLCPA, and Caiazza and Kontogiannis’ statewide concerns are more appropriately addressed in that proceeding.
The following quotes Section D of the DPS reply. The first paragraph acknowledges my analysis that showed that the number of people in arrears has significantly increased since the state of the Climate Act. The reference to the fact that it is “not clear how much the CLCPA costs affected the number of customers in arrears” devalues the analysis without recognizing that the reason it is not clear is because DPS has not updated its mandated reports in over a year.
D. The Provisions of PSL § 66-p Are Not Applicable to This Proceeding
In their Statement, Caiazza and Kontogiannis assert that the Joint Proposal does not acknowledge PSL § 66-p(4). The subject of PSL §66-p is the requirement for the Commission to establish a renewable energy program. Caiazza and Kontogiannis contend that they have significant reliability and affordability concerns related to the programs that support the CLCPA in the Joint Proposal. To support this claim, Caiazza and Kontogiannis cite to an increased number of customers in arrears; however, they note that it is “not clear how much the CLCPA costs affected the number of customers in arrears.” Ultimately, Caiazza and Kontogiannis conclude that their concern supports the suspension of the CLCPA and any CLCPA-related programs in the Joint Proposal, pursuant to PSL §66-p(4).
The DPS Staff made several other points in response to our Statement. There are unmentioned conflicting obligations in the following. Both the DPS and the company seeking the rate increases do have an obligation to provide a safe, reliable utility service at just and reasonable rates. Apparently DPS staff are not willing to establish the criteria for what that means.
First, the assertion that the Joint Proposal does not acknowledge PSL §66-p(4) is not a failing of the Joint Proposal. Neither the Joint Proposal nor the Signatory Parties have the power or authority to direct the Commission to conduct a hearing to consider a suspension of the CLCPA or CLCPA-related programs pursuant to PSL §66-p(4).
Second, there are numerous generic proceedings that were initiated or expanded to comply with the directive for the Commission to establish a renewable energy program.
In the preceding paragraph, the DPS staff response deflected responsibility for addressing PSL §66-p(4) by saying that there are other proceedings. I used Perplexity AI to prepare a white paper documenting references to affordability and reliability recommendations in the New York Department of Public Service (DPS) Document and Matter Management (DMM) System. The search found the following relevant references ; four stakeholder letters and comments, two business and industry filings, six government and oversight filings, and note that the PSC imposed affordability provisions in four rate cases. I believe the requirement in the NYSE&G/RG&E for a mandated Benefit-Cost table in future filings showing the share of new revenue that funds Climate Act mandates vs. core reliability should be included in all cases.
The affordability references white paper document notes that:
The July 2024 Office of the State Comptroller (OSC) audit warns that neither DPS nor NYSERDA has produced a comprehensive estimate of total CLCPA implementation cost, leaving ratepayers the de-facto funders. OSC recommends that PSC:
- “assess the extent to which ratepayers can reasonably assume responsibility”;
- “identify alternative funding sources” (federal, State budget, carbon revenues);
- craft a backup plan should affordability thresholds be exceeded.
The affordability references white paper showed a disturbing lack of urgency by DPS to address affordability issues related to the renewable energy program. DPS did not respond to the OSC audit for six months and then referenced an existing program. That response could have been sent a couple of weeks after the OSC audit came out. Moreover, there has been no action on the commitment to address the OSC tasks mentioned below:
DPS Chair Rory Christian’s January 2025 response commits the Commission to those tasks and highlights the existing 6% energy-burden target as its affordability yardstick.
The DPS reply tries to explain away my analysis finding that the number of customers in arrears has increased significantly since the start of the Climate Act by saying that there are outreach programs. That is treating the symptoms and not the disease.
Additionally, regarding Caiazza and Kontogiannis’ statements regarding arrears, the Joint Proposal includes provisions that require additional outreach to customers who have unresolved arrears.
The final paragraph passes the buck for safety valve responsibility. As shown in the reliability references white paper the issue has been raised but DPS has not addressed the clear need to address PSL §66-p(4).
Finally, the concerns raised by Caiazza and Kontogiannis are likely not limited to the Niagara Mohawk service territory and the programs implemented by Niagara Mohawk and are potentially state-wide concerns. Caiazza and Kontogiannis’ position that the Commission should suspend the CLCPA-related programming is outside the scope of the rate case and more properly addressed in the generic proceedings that are related to the renewable energy programs.
Conclusion
The DPS response to the need for affordability and reliability safety valves clearly is a failure to support the broad mandate to ensure access to safe, reliable utility service at just and reasonable rates. Utility costs are the most significant manifestation of Climate Act implementation to ratepayers. DPS staff responsible for rate cases defer to someone else. Despite numerous filings and explicit OSC recommendations DPS has not updated the costs of implementation much less whether observed costs are affordable.
Without quantifiable bounds DPS claims that they recognize the “obligation to provide safe, reliable utility service at just and reasonable rates” is no more than a slogan, How much longer will the DPS facilitate the “build as much as possible as quickly as possible” Hochul Administration Climate Act plan without considering affordability and reliability limits. Crossing fingers and hoping things work out is not a recipe for a successful energy plan.
Pragmatic Environmentalist of New York 