Eversource and United Illuminating filed a joint motion in May of 2024 to require the Public Utilities Regulatory Authority (PURA) commissioners to vote on a cost-recovery change involving roughly $85 million in electric vehicle costs, after PURA had already approved the change with only the executive secretary’s signature and no recorded votes by the commissioners.
The move set off a heated meeting between utility company attorneys, Gov. Ned Lamont’s staff, the Department of Energy and Environmental Protection (DEEP), and PURA in June, where the utility lawyers argued they could not accept the cost recovery approval without a proper vote by the commissioners, while PURA and the governor’s office argued they were giving the companies what they wanted, so the companies should withdraw the motion.
All of this took place six months before Eversource and United Illuminating filed a lawsuit in court alleging PURA Chairman Marissa Gillett has taken over as presiding officer on dockets, issuing unilateral rulings on motions under the guise of the executive secretary’s signature.
The utilities met with Lamont’s team in June and voiced their concerns, but nothing changed in practice. Instead, things became even more contentious as Avangrid and Eversource began digging into how the executive secretary’s signature was being used and whether it properly reflected a vote of the entire commission, ultimately ending up in a lawsuit.
While the executive secretary’s signature block was typically affixed to ministerial decisions, such as granting a time extension or intervenor status, Eversource and UI argue these “Gaudiosi rulings” have been used by Gillett to issue hundreds of substantive rulings on motions that involved tens of millions of dollars, legal rights, and findings of fact on her own.
In a 2023 draft decision, PURA disallowed UI to defer a small EV cost recovery of $330,000 to a later rate case – instead, telling UI they would just have to forfeit the money. UI protested the draft decision on many counts. PURA then reversed course, allowing the deferral in their final decision.
The EV cost recovery decision came as part of PURA’s rate adjustment for UI which, the company claims, left them in tough financial straits that “substantially reduced the revenues available to UI to fund utility operations and core capital programs,” according to their March 18, 2024, filing, and resulted in a lowered credit rating.
The acrimonious relationship between PURA and the utilities — well evidenced in those written filings — worried both Eversource and UI that they would be denied EV cost recovery in the future.
The two companies paused their respective EV programs and filed separate motions requesting a change to the EV recovery mechanism to assure they could recoup the money before moving forward with any further investment. The EV rebate and charger program is part of the public benefits charge on ratepayers’ bill; the utility companies make government-mandated investments and then recoup those costs through the public benefits charge.
“This promise of future recovery – for increasing amounts – is called into question by PURA’s regulatory decisions and arguments before the courts,” the motion states. “However, Eversource simply cannot continue to utilize its limited capital resources in support of these incremental, non-reliability-based programs, particularly if there is a perceived increase in the level of risk caused by PURA’s ongoing actions to discourage further investment by utilities.”
What they received back, however, was a harshly worded letter approving the change signed by executive secretary only, with no record of votes. The change, involving roughly $85 million at the time — and many more millions in the future — wasn’t even listed as a decision; it was merely a letter from the executive secretary.
“To ensure the success of the EV Charging Program, the Authority established a clearly defined cost recovery mechanism in 2021 through the EV Decision,” the executive secretary wrote in the May 17 letter. “Subsequent decisions by the EDCs now threaten the continuation of that program. Facing this Cornelian dilemma, the Authority will allow the EDCs to seek recovery for certain EVSE program costs, including rebates, program administration, education and outreach, through the RAM proceeding beginning in 2025.”
Eversource and United Illuminating, however, issued a joint motion on May 22, arguing they couldn’t rely on a decision that purported to approve their cost recovery mechanism now and in the future without it being properly approved by a commission vote and raising concerns about the “institutional integrity” of PURA.
“As explained in detail… the Companies have taken the unusual step of requesting confirmation of a secure, timely and predictable recovery path due to a loss of transparency, fairness and lawfulness in PURA’s cost-recovery decisions,” UI and Eversource wrote. “This loss of institutional integrity is not resolved by the issuance of a letter that purports to grant substantive rights to the Companies yet is unsigned by the Commissioners; that restates falsehoods from prior case decisions that are the source of consternation and risk; and that explicitly threatens layers of unlawful penalties, rather than engendering constructive policy discourse.”
Following the sit down between the utilities, DEEP, PURA, and Lamont’s staff, the utilities withdrew their joint motion, and in August of 2024 – just as Avangrid was making arguments about “Gaudiosi rulings” in their gas rate case – PURA approved the EV cost recovery change as part of the final decision issued in two separate dockets — nearly $50 million for Eversource and roughly $7 million for UI. The utilities also projected $28.4 million in combined costs, but PURA declined to include that sum, only accepting actual costs. The two decisions were signed by all three commissioners.
The approval, however, came with a warning — again from the executive secretary — saying the companies’ pause on the EV program was a “potential violation of the Authority’s orders” and “any future pause or cessation of PURA-ordered programs will result in a Notice of Violation assessing penalties.”
In their court filings, both companies claim hundreds, if not thousands, of substantive rulings have been made by Gillett acting as presiding officer and issuing those rulings under the executive secretary’s signature, leading the companies to believe it was a ruling by the full commission.
Some of those rulings include extending the COVID-era shutoff moratorium, which added at least $70 million to the public benefits charges; withholding millions due back to natural gas customers, and PURA investigating itself over allegations of bias and improper communications.
Gov. Lamont, who has nominated Gillett for another term at PURA, released a document purportedly in defense of PURA, showing that 6,133 motions have been filed since 2017 and listing votes for four of them, although at least one listed motion contained no votes in PURA’s records and none of the votes were conducted publicly, nor have meeting minutes associated with the decisions.
Thus far, PURA has been unable to produce records of votes on substantive motion rulings.
In previous comments to Inside Investigator, PURA indicated that Gillett typically acts as presiding officer and ensures a “general consensus” among commissioners before making a motion ruling. They also assert that they are not required to keep meeting minutes on motion rulings because under state statute, commissioners can discuss matter pending before the agency.
Gillett is set to go before the Executive and Legislative Nominations Committee for reappointment.
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