Low-income advocates had their right to intervene in two energy rate cases affirmed, then dashed to the ground in a roller-coaster ride of court decisions over the last two days.
On Monday, Franklin Circuit Court Judge Phillip Shepherd ruled state utility regulators unreasonably blocked low-income advocates from participating in ongoing Louisville Gas & Electric and Kentucky Utilities rate cases.
But on Wednesday, the Kentucky Court of Appeals overturned that ruling. Instead, it found the lower court lacked the jurisdiction to rule on the decision made by state utility regulators.
Kentucky utilities are regulated by a three-member board appointed by Gov. Matt Bevin known as the Public Service Commission.
Spokesman Andrew Melnykovych said the commission was pleased the court upheld its discretion in choosing who may intervene in cases that go before them.
“The PSC is very cognizant of the effect of its decision on low-income customers,” Melnykovych said. “In no way should the PSC’s satisfaction over this decision be interpreted as the PSC not being sensitive to the interests of low-income ratepayers.”
After years of allowing low-income advocacy organizations the chance to participate in rate cases, the Public Service Commission denied groups advocating for low-income families last November.
Among those seeking to participate in the case were the Metropolitan Housing Coalition and The Association of Community Ministries.
Tom FitzGerald, attorney for the low-income groups, said he plans to ask the Court of Appeals to reconsider and will go to the Kentucky Supreme Court if necessary.
"The Commission purports to have a 'soft spot' for low-income ratepayers, yet prevented the advocates for those ratepayers from meaningfully participating in challenging the LGE and KU proposed rates on behalf of those ratepayers, reasoning that the Attorney General should be the one to advocate low-income customer interests," FitzGerald wrote in a Facebook post.
At the same time, the commission allowed groups including Walmart and Kroger to participate, finding they represent the interests of commercial customers.
The Public Service Commission excluded the low-income groups, arguing that their interests would be represented by the Attorney General’s Office.
The commission’s evidence was based on a single newspaper article that Judge Shepherd said has no value as evidence.
“It would certainly set a dangerous precedent to allow the Commission to abruptly depart from its well-known and long-held practice of allowing intervention by these plaintiffs without relying on substantial evidence to do so,” he said.
Shepherd further concluded the commission did not explain “the complete reversal of its previous line of cases in which these entities were allowed to intervene.”
Melnykovych said the commission’s reversal is based on prior experience. The Public Service Commission decided the process is better served if low-income groups were represented by the attorney general, rather than allowing the additional parties into the case, he said.
As attorney general, Andy Beshear will be able to sponsor the low-income groups and allow testimony from them in front of the commission, Melnykovych said. However, those groups will not be able to cross-examine witnesses or participate in discovery, he said.
However, Beshear’s office has said he supports the intervention of low-income groups and cannot adequately represent their interests.
"We are currently reviewing the opinion, but support these organizations and their efforts to be heard before the Public Service Commission," Beshear said. "My office will continue to represent and advocate for all Kentuckians in our fight to ensure utility rates are fair and affordable."
Shepherd said in his ruling the Public Service Commission’s decision silences the voices of low-income ratepayers and denies them a fair opportunity to be heard.
This post has been updated.
