As expected, Republican leaders in the Maine Legislature have used an acknowledged drafting error in a law regarding energy efficiency funding to bargain for big changes in energy policy rather than just fix the one-word mistake.
On Thursday, House Minority Leader Ken Fredette announced he had a proposal to restore the missing “and” — in exchange for a long list of other changes, some of them substantial.
He would create a new state department focused on energy with its own commissioner. It would be funded by taking $300,000 per year from the Efficiency Maine Trust, which would be overseen by the new commissioner, who would be appointed by the governor, who is no fan of energy efficiency investments.
With energy policy becoming increasingly complex and regional, there may well be good reasons to have an energy commissioner rather than just a policy advisor in the governor’s office. But that debate should stand on its own. Tying it to the simple act of adding an “and” so that Efficiency Maine is funded at the level lawmakers intended is ludicrous.
Fredette says tying the “and” fix to all the other proposed changes, which likely came straight from the governor’s office, is the only way the simple correction can pass legislative muster. We may never know because, late last month, Fredette and the four other Republican legislative leaders refused to let their fellow lawmakers consider a bill, from a Democrat, that would have simply inserted the “and” into the law. LePage said Friday he would veto such a bill anyway.
Last month, the Public Utilities Commission came to the unexpected conclusion that a fee to be collected from electricity ratepayers to support energy efficiency efforts applied only to utility transmission and distribution costs and not the cost of the actual electricity supply.
At issue is the 2013 omnibus energy bill, which allows the PUC, not the Legislature, to set the budget for Efficiency Maine, the state entity that oversees residential and business energy efficiency programs. Lawmakers established that the budget for electricity efficiency programs should amount to no more than 4 percent of certain electricity sales.
The law defines those sales as “total retail electricity transmission and distribution sales.” An earlier draft of the bill, however, read “total retail electricity and transmission and distribution sales.” Hence the debate over the missing “and.”
PUC staff reviewed the bill’s progression through the Legislature in 2013. In a memo to commissioners, the PUC staff said it found that there was agreement that the 4 percent cap would raise about $59 million for Efficiency Maine. In addition, early versions of the bill contained the first “and,” but it was inadvertently dropped by the Revisor of Statutes Office. This amounts to what is known as a “scrivener’s error.” It should not negate the intent of lawmakers nor should it require a literal reading of the erroneously written law.
Despite this, the PUC voted 2-1 that the cap be based only on transmission and distribution costs, essentially cutting Efficiency Maine funding to $23 million.
It is Alice in Wonderland-ish to have the party of smaller government argue that the only way to solve this problem is to expand government and create new levels of government oversight.
Fortunately, some Republicans see right through this stunt.
“I just personally think that any effort to extract additional concessions in order to fix a clerical error is wrong,” said well-respected Sen. Roger Katz, R-Augusta.
Republican Rep. Larry Dunphy of Embden, a member of the Legislature’s Energy, Utilities and Technology Committee, was the only lawmaker Wednesday who had signed on to Fredette’s bill as a co-sponsor. Dunphy said he supports most of the elements in Fredette’s bill but prefers to fix the typo by itself.
“We had an agreement. We shook hands. We all made concessions to make that bill happen,” he said. “I think it’s a matter of integrity that we simply do what we agreed to do.”
It really is that simple.