In re the Provision of Basic Generation Service
15 A.3d 829
| N.J. | 2011Background
- Rate Counsel challenged a BPU order that purported to implement a pass-through of increased solar alternative compliance payment costs to ratepayers.
- Two parallel BPU proceedings were involved: a Renewable Energy Portfolio Standards/solar SACP proceeding and a Basic Generation Service (BGS) auction format proceeding.
- The January 25, 2008 BPU Order allowed a pass-through for costs affecting existing 2006–2007 BGS contracts.
- The BPU proceedings were mixed, blending rulemaking and adjudicative elements without a formal hearing.
- Rate Counsel argued the BPU failed to provide proper notice and an opportunity to comment on the pass-through, given the consolidated proceedings and subsequent comments from private parties.
- The appellate court vacated the pass-through and remanded for a new proceeding with proper notice and comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the BPU's January 2008 Order constitute rulemaking triggering APA notice? | Rate Counsel | BPU | Yes; treated as rulemaking despite not using formal procedure. |
| Was there adequate notice and opportunity to comment on the pass-through issue? | Rate Counsel | BPU | No; improper conflation of proceedings and inadequate notice. |
| Should the order be vacated and remanded for notice and comment? | Rate Counsel | BPU | Yes; vacate and remand for new proceeding with proper notice and comments. |
| Did Rate Counsel’s participation in overlapping dockets excuse the notice failure? | Rate Counsel | BPU/Respondents | No; overlapping status does not excuse lack of notice. |
Key Cases Cited
- Metromedia, Inc. v. Div. of Taxation, 97 N.J. 313 (N.J. 1984) (multi-factor rulemaking analysis; rulemaking requires notice and opportunity to comment)
- In re Provision of Basic Generation Serv. for the Period Beginning June 1, 2008, 411 N.J.Super. 69 (N.J. Super. App. Div. 2009) (administrative procedures in BGS context; implied rulemaking considerations)
- In re Regulation of Operator Serv. Providers, 343 N.J.Super. 282 (N.J. Super. App. Div. 2001) (notice and comment requirements; substantial change in rulemaking context)
- In re Adoption of N.J.A.C. 9A:10-7.8(b), 327 N.J.Super. 149 (N.J. Super. App. Div. 2000) (notice adequacy when proposal substantially changed; applicability of rulemaking principles)