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Times Square, New York. (Photo: iStock.com/Travel Wild)

In a motion for reargument filed June 12 regarding a recent decision by the New York State Court of Appeals, the National Energy Marketers Association (NEM) has asked the court to reconsider a decision which NEM believes does the opposite of what the court intended.

The motion addresses the appeals court’s May 9 decision that forces competitive suppliers to sell energy under utility prices causing losses that cannot be recovered by ESCOs. Yet, Utilities can do this at any time by recovering current losses in future prices.

NEM’s motion said that this decision could potentially undercut 2002 Public Service Law amendments to regulations that were specifically created to keep the PSC from imposing utility pricing rules on non-utility ESCOs.

“Enabling the PSC to impose restrictions through ‘conditioned access’ to utility infrastructure that it could not impose through direct statutory authorization would allow the PSC to bypass the very limits the Legislature imposed on it by expanding its authority over ‘gas and electric companies’ (public utilities over which the Legislature gave the PSC the power to set rates) to regulate ESCOs – over which the Legislature specifically declined to permit the PSC to decide rates,” the motion argued.

Furthermore, the motion said, the PSC itself has acknowledged they don’t have the power to apply utility-type price restrictions on non-utility ESCOs

“The PSC repeatedly recognized its lack of jurisdiction over rates charged by non-utilities,” the brief stated.  NEM urges the Appeals Court to take a fair look at the unfair results that result from treating Article 2 companies like Article 4 utilities.

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