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Utilities seek to put brakes on solar ownership vote; GOP could take over PSC if Tony Evers defeated

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Solar panels

Workers with Midwest Solar Power install solar panels on a Monona home in 2021. Utilities and their allies are seeking to slow a decision on a policy that could expand access to solar energy.

With Republicans poised to seize control of Wisconsin’s utility oversight board next year if they unseat Gov. Tony Evers, utility companies are seeking to slow a decision on a practice that could expand access to renewable energy.

Two groups — Vote Solar and the Midwest Renewable Energy Association — have asked the state Public Service Commission to declare that state law allows for “third-party” arrangements through which customers can lease solar panels or buy solar energy from a company other than their utility.

Wisconsin law says homeowner associations can’t restrict peoples’ rights to install solar panels on their property. Many do it anyway.

The Wisconsin Utilities Association, joined by groups representing municipal and cooperative utilities, says the requests have the potential to “upend 115 years of Wisconsin regulatory law” and open the door to “retail competition.”

The PSC voted 2-1 in July to accept the renewable energy groups’ petitions and instructed the commission’s administrative judge to conduct hearings and return the issue for a vote by Dec. 1.

Commissioner Ellen Nowak, the commission’s lone Republican appointee, called the vote “a purely political decision” that would allow the issue to be decided this year while Democrats control the commission.

“The commission made it clear that they want this issue decided before a potential change in the commission’s makeup,” Nowak said after the vote.

Because Republican leaders in the Senate have blocked confirmation of commissioner Tyler Huebner, a Republican governor could immediately replace the former renewable energy advocate appointed by Evers in 2020 for a six-year term.

Prior to Huebner’s appointment, the PSC declined multiple requests to decide the issue, with conservative commissioners arguing that was a job for lawmakers. A pair of Republican lawmakers last year introduced legislation to allow third-party financing for solar, wind and other renewable energy sources but the bills failed to advance.

Earlier this year the commission deadlocked on a case involving the city of Milwaukee from which Huebner had recused himself, with Chair Rebecca Valcq voting to endorse the practice and Nowak opposed.

Now the utility groups accuse the commission of putting the proceedings on a “rocket docket” and argue the timeline is too short for them to develop positions or respond to arguments from 18 intervening parties.

The utilities are asking the commission to do away with the Dec. 1 deadline and throw out the schedule set by Judge Michael Newmark, which includes an initial hearing on Oct. 25 followed by public hearings on Nov. 2.

The utilities argue the petitions amount to “the quintessential wolf in sheep’s clothing” that if granted would represent “the most momentous commission action in generations.”

Midwest Renewable Energy Association argues the utilities have no legal basis for the request and have failed to show the schedule violates any right to due process.

The group cited more than half a dozen other cases in which the commission issued decisions in less time than the 133 days between opening the third-party docket and Dec. 1 and refutes the utilities’ argument that they must respond to “hundreds of pages of testimony,” noting there were just 19 pages filed by two organizations, MREA and the Citizens Utility Board.

“The rest of the filings were by the utilities, their front groups, allies and proxies,” the group wrote.

The commission is scheduled to discuss the schedule request Wednesday.

While the contract details vary, third-party ownership is a financing mechanism that could make solar energy available to more people, including residents who can’t afford the upfront costs.

Wisconsin law says that public utilities are subject to regulation by the PSC, but the definition is ambiguous: any entity providing “heat, light, water or power ... to or for the public.”

Renewable energy advocates say it’s clear that a company financing a customer-hosted system is not a “public utility,” but an informal PSC advisory on the issue and the commission’s past refusals to rule on the issue have created regulatory ambiguity.

The groups say it’s time for the commission to resolve a “decade of uncertainty” and stop considering agreements on a case-by-case basis, which they say amounts to an effective ban since third-party providers have to absorb the costs of litigation unlike monopoly utilities, which pass them on to ratepayers.

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