Compromise or 'complete and utter sham'? Kentucky's solar bill is in dispute ... again

The bill that many critics say would put the skids on rooftop solar in Kentucky has had and an off-again, on-again journey in Frankfort – one that's also engendered a fair amount of ill will and disagreement.

There were those charges – that were denied – that Republican leaders were stacking a House committee with favorable votes when they added new members while it seemed the bill was bogged down. That was the maneuver Rep. Jim Wayne, D-Louisville, described as "an insidious malignancy that can infect a democracy."

There was a hastily called backroom meeting out of the public eye of Kentucky Education Television cameras and their internet streaming when a revamped bill finally made it back to the full House, in a form that its sponsor Rep. James Gooch, R-Providence, called a compromise.

But now Kentucky's dean of environmental lawyers – at least from the citizen perspective – is calling this new version "a total and utter sham," just as House Bill 227 – backed by oil, coal, trucking and utility industries – has begun to move in the Senate and as the General Assembly enters its final days.

More: A hotly contested bill to curb solar power rises from the dead and passes Kentucky House

At issue is how customers with rooftop solar and what's called "net metering" get reimbursed for any extra electricity they generate, and thus, whether rooftop solar will continue to be an economically viable option.

"The big change is that the most recent committee substitute (bill) does what solar advocates asked for – charge the (Kentucky Public Service Commission) with determining the value of that excess energy, rather than having the legislature set it at the ... wholesale or actual value of the energy," Chris Whelan, a spokeswoman for LG&E and KU Energy, said last week.

The Louisville-based utility has aggressively pushed for the bill as a matter of what it calls fairness to customers without solar, arguing those with solar panels aren't paying their fair share of the utility's fixed costs.

That's in dispute, of course.

Read this: Anti-solar bill moves in Kentucky House, despite resistance from Louisville and Lexington

Then on Tuesday, FitzGerald called to say he had figured out the utilities' end game.

FitzGerald said the way the bill is worded could allow utilities to change their arrangement with solar customers to provide them with cash instead of credits for the extra energy they make. That, he said, would kick in federal rules that would require the Public Service Commission to consider rooftop solar customers the same as commercial energy providers.

In turn, any payments from utilities to solar providers would have to be at essentially a wholesale rate, or about 70 percent less than current practice.

"The whole idea that this is a compromise is a complete and utter sham," FitzGerald said. "The PSC would have no option in setting the rate at which net metered electricity would be valued, and all of the recognized benefits of solar to the utility and to other customers would be ignored."

Whelan countered by saying solar advocates asked for the cash option and that's in part why that's in the bill. She disagreed with FitzGerald's legal interpretation that federal rules would force essentially the wholesale rate for reimbursement.

Again, she said, solar advocates got what they wanted - basically PSC acting as a referee.

The commission is aware of the issue raised by FitzGerald but has not yet evaluated it, said Andrew Melnykovych. He also said lawmakers have not asked the PCS to comment on the bill.

The bill, one of the most fought over in the 2018 General Assembly, now would require the PSC "to consider and assign a value to the excess generation, as requested by the solar advocates and by Mr. Fitzgerald on the witness stand at the first House hearing," she said.

The utility's team said net metering customers will remain under state law, making an "intrastate transaction," so the federal government should not have any jurisdiction, Whelan said.

FitzGerald countered that solar advocates never requested "the gamed process this bill establishes."

The dispute is similar to the one I wrote about last week when FitzGerald argued that the wording of the bill also does not guarantee that customers with existing solar panels won't be affected by the changes. LG&E disagreed with that, too.

One thing is clear, however. Tuesday was the 53rd day of a session that can last no more than 60 days, so lawmakers are running out of time to sort all this out and make the best decision on solar power for Kentuckians.

Reporter James Bruggers writes this Watchdog Earth blog: 502-582-4645; jbruggers@courier-journal.com; Twitter: @jbruggers; Support strong local journalism by subscribing today: www.courier-journal.com/jamesb.

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