At its December 2021 Oral Argument Session, the Supreme Court of Pennsylvania will hear arguments in three consolidated instances involving the set up of good meters by electrical utilities. A sensible meter is a component of a community that features a meter, two-way communication, laptop {hardware} and software program, and educated assist personnel. Pennsylvania’s Act 129 of 2008 amended the Pennsylvania Public Utility Code to require electrical utilities with 100,000 or extra clients to furnish good meter know-how upon request from a buyer, in new constructing development, and in accordance with a depreciation schedule to not exceed 15 years in size.
The Supreme Court agreed to contemplate a number of points in these instances, however the crucial points are: (1) whether or not the code mandates common deployment of good meters or as an alternative permits customers to decide out of good meter set up; and (2) the burden of proof {that a} client should fulfill to show a violation of Section 1501 of the code.1 This Alert briefly discusses the occasions main as much as the Supreme Court’s consideration of these points and then discusses the potential impacts of the Supreme Court’s determination.
BACKGROUND
Act 129 was enacted to cut back vitality consumption and demand. Smart meters assist obtain this goal by offering clients with direct entry to, and the capability to make use of, value and consumption info. Smart meters assist time-of-use and real-time pricing applications. Smart meters additionally assist the computerized management of electrical energy consumption by the buyer, the electrical utility, or a 3rd get together (at the buyer’s request). Some clients have resisted the set up of good meters at their houses and companies, nevertheless, primarily based on privateness, security, and different issues.
As early as 2013, the Pennsylvania Public Utility Commission (PUC) held that the General Assembly supposed to require all coated electrical utilities to deploy good meters all through their methods. The PUC held that the code doesn’t present clients with a normal proper to decide out of good meter set up, however a buyer may declare that the set up of a sensible meter at his residence or enterprise would represent unsafe or unreasonable service. Consequently, the PUC held {that a} buyer who information a criticism alleging that the set up of a sensible meter would violate Section 1501 is entitled to a listening to, however has the burden of proving that the set up and use of a sensible meter at his residence or enterprise will exacerbate or adversely have an effect on his well being.2
In the instances that can be heard by the Supreme Court, the electrical utility (PECO Energy Company) sought to switch present computerized meter studying meters with wi-fi good meters. Several residential clients refused to permit the utility to switch their meters, claiming that they had been medically delicate to emissions of radiofrequency electromagnetic vitality (RF) from the wi-fi meters. The utility’s tariff supplied the clients choices, resembling relocating the meter on the buyer’s property, however the clients rejected these choices. The utility threatened to terminate the clients’ service and the clients filed complaints at the PUC. After trials with in depth medical and professional testimony, the PUC concluded that the clients didn’t reveal that their well being can be adversely affected by the good meter. Therefore, the PUC concluded that these clients didn’t reveal that the utility failed to supply them with protected and affordable service.
On evaluate, a divided Commonwealth Court of Pennsylvania discovered that the code requires that utilities supply good meters to all clients, however doesn’t require that every one customers settle for that provide. Consequently, the majority discovered that the code doesn’t preclude utilities — or the PUC — from accommodating clients’ requests to keep away from RF emissions.
In phrases of the burden of proof, the Commonwealth Court positioned the situation in context as follows (emphasis in unique):
The query right here is way murkier than merely stating the right burden of proof. What is the correct course when RF emissions do have identified risks, however analysis has not but decided the extent of these risks? Should Consumers bear the threat that RF emissions are extra dangerous to them than to others as a result of of their sensitivity and underlying well being situations? Conversely, ought to PECO be required to accommodate Consumers’ fears regardless that medical analysis has not but definitively decided the diploma of threat posed by the degree of RF publicity at situation?
The Commonwealth Court held that the clients’ burden of proof was to point out that the utility’s service was both unsafe or unreasonable; the clients didn’t must show that the service was each unsafe and unreasonable. In addition, the Commonwealth Court held that the customers needed to reveal, by a preponderance of the proof, that the good meters would trigger adversarial well being results to them. It was not sufficient for them to show the potential for, or threat of, hurt from good meters; they wanted to reveal a “conclusive causal connection” between RF publicity and adversarial well being penalties.
The Commonwealth Court concluded that the PUC’s determination was primarily based primarily on the conclusion that the code mandated common deployment of good meters. Finding this conclusion faulty, the Commonwealth Court ordered the case to be remanded so the PUC may contemplate whether or not lodging are applicable (even with out proof of hurt to the buyer). The Commonwealth Court inspired the PUC, on remand, to discover methods of balancing the events’ pursuits, resembling by permitting the use of wired good meters or the deactivation of the RF-emitting features of a wi-fi good meter.
POSSIBLE OUTCOMES AND CONSEQUENCES OF THE SUPREME COURT’S DECISION
One doable final result of this case is that the Supreme Court may agree with the PUC that the code mandates common good meter deployment. Such a choice, whether or not it’s “proper” or “incorrect” as a matter of statutory development or public coverage, would appear to impact little change in the electrical trade as a result of it might uphold the PUC’s long-standing interpretation of the code. A Supreme Court determination adopting the PUC’s place would get rid of lingering uncertainty on the situation, however would in any other case have little obvious impression on the establishment.
If, on the different hand, the Supreme Court finds that clients can decide out of good meter set up, the Supreme Court would wish to deal with — or would wish to remand the case to the Commonwealth Court or the PUC to deal with — the circumstances by which clients can decide out. Could clients decide out for any cause or may clients decide out just for sure, specified causes resembling well being impacts? Will clients be required to show hurt, or will utilities be required to make lodging even with out proof of hurt? Will clients be permitted to decide out in the event that they show, after a sensible meter has been put in, that they suffered adversarial well being results from that good meter?
The sensible penalties of a choice permitting clients to decide out might be important. Electric utilities have invested a whole lot of thousands and thousands of {dollars} into good meter methods. The Supreme Court’s determination may require them to make in depth extra investments. An electrical utility may must have a number of networks in place concurrently so as to present electrical service to clients who use wi-fi good meters in addition to clients who use an analog meter or a wired good meter. There is also an elevated administrative burden on utilities as a consequence of elevated numbers of buyer requests to decide out and the must accommodate extra of these requests. The PUC may additionally face an elevated caseload if customers file extra complaints at the PUC as a result of their requests to decide out are denied. All of these doable outcomes would have a monetary impression — on electrical utilities and their charges and on the PUC and its assessments to fund its operations. This is to not say that the Supreme Court ought to affirm the PUC’s place to keep away from these penalties; it’s merely to acknowledge that the Supreme Court’s determination on the correct interpretation of the code has actual world penalties.
Nevertheless, the Supreme Court’s determination on the buyer’s burden of proof may need a good better impression than its determination on whether or not clients can decide out of good meter set up. This is as a result of the Supreme Court’s determination on the burden of proof would apply to a a lot better selection of instances; it might not simply apply to instances involving electrical utilities’ good meters, however would apply to any case involving a public utility (electrical, pure fuel, pipeline, water, wastewater, telecommunications, or transportation utility) by which the complainant alleges that the utility will violate Section 1501 of the code if that utility does (or doesn’t) take sure specified motion in the future.
The instances earlier than the Supreme Court had been uncommon in that they concerned trials that lasted a number of days and concerned professional testimony by each events. That is uncommon for PUC client criticism proceedings, however will that turn out to be extra widespread in the future as customers attempt to fulfill a tort case-like burden of proof? If so, will that create backlogs in the PUC or require that the PUC rent extra administrative legislation judges?
Another doable final result of the Supreme Court’s determination, it doesn’t matter what the Supreme Court decides, is that the General Assembly may amend the code in response to the determination. Perhaps the Supreme Court’s determination will — in the eyes of the legislature — misread the legislature’s intent in adopting Act 129, or maybe the legislature has modified its collective considering in the 13 years since Act 129 amended the code. Of course, if the legislature amends the code to make clear its intent concerning a buyer’s proper to decide out of good meter set up, the legislature may seize the alternative to make different adjustments to the code as nicely.
CONCLUSION
Much is at stake when the Supreme Court decides the good meter instances listed on the December Oral Argument Session. Legislators, regulators, electrical trade executives, and public utility practitioners ought to look ahead to the outcomes of these instances in 2022.
