by ANDREW MAYKUTH, The Philadelphia Inquirer, 11 November 2020
|Getty Broome/AP Photo|
The Pennsylvania Public Utility Commission and Peco Energy this week asked the Pennsylvania Supreme Court to review a lower-court decision that invalidates a policy requiring the universal installment of smart meters. Several Peco customers objected to the installation of wireless devices on their homes, saying the radio frequency (RF) emissions made them ill.
State Commonwealth Court last month determined that the 12-year-old law requiring utilities to “furnish” smart-meter technology by 2023 contained nothing to require “every customer to endure involuntary exposure” to radio emissions. The court’s opinion, written by Judge Ellen Ceisler, instead interpreted the law to support customer choice in the use of the smart-meter technology.
The PUC interpreted Act 129 of 2008, an energy-conservation law, as requiring smart-meter technology for every customer without exception, and the utilities noted that the legislature had declined several attempts over the years to add an opt-out clause into the law.
Smart meters use radio technology similar to that of cellular telephones to establish two-way communication with each customer, giving the companies instantaneous readings about consumption and the operations of its power grid. The devices also allow utilities to remotely turn on or shut off service. Utilities say the gadgets have improved storm response by allowing them to quickly establish the location and extent of outages.
Scores of customers objected to the smart meters on the grounds that they were a health concern or an invasion of privacy, but the PUC only considered cases filed by customers who argued that the electromagnetic frequencies emitted by the devices had made them sick.
The utilities supplied legions of expert witnesses who testified that the devices are safe, and Commonwealth Court affirmed the PUC’s finding that the customers had not established that their health issues were linked to smart meters.
Nevertheless, the court’s order requires the PUC to consider “all reasonable accommodations,” including turning off the devices’ wireless function, installing them away from customers’ homes or putting in a wired, not wireless, device.
Energy utilities say the court ruling undermines long-approved plans for smart meters on which they have already spent more than $2 billion to meet the 2023 deadline. Peco was among the first to install the devices and has largely completed installation to more than 1.7 million customers at a cost of more than $700 million.
“The court has now determined that universal deployment is not required, and that individual customers may be able to ‘opt out’ of receiving a smart meter,” Peco said in its 544-page petition to the Supreme Court this week. “This decision puts at risk nearly a decade of existing smart-meter design, construction and deployment, totaling in the billions of dollars.”
The utilities say the decision also opens a potential obstacle course of roadblocks from customers who object to utility practices — from the location of transmission lines or how they curb vegetation — without any evidence of lack of safety.
“There are a lot of issues out there that people get concerned about it, and it’s scary from the utility standpoint because you have to go about accommodating all of these things,” said Terrence J. Fitzpatrick, the president of the Energy Association of Pennsylvania, a trade group of utilities. “How many special arrangements do you have to make with folks just because they have a belief that can’t really be proven about something they don’t like?”
Steven G. Harvey, the Philadelphia lawyer who argued the case to the Commonwealth Court on behalf of several Peco customers, said he is elated that the court ruled that customers could opt out.
“We feel very strongly that Act 129 is not a mandate for everybody to get exposed to radio frequency and we’re happy the Commonwealth Court agrees with us,” Mr. Harvey said. “We think the Supreme Court is going to agree with us again.”
Mr. Harvey represented three Peco customers: Maria Povacz, of New Hope, Bucks County; Laura Sunstein Murphy of West Bradford Township, Chester County; and Cynthia Randall and Paul Albrecht, who live in Roxborough.
The PUC, citing the “wide-ranging impact” of the court’s decision, last week issued an order putting a stay on dozens of legal challenges from customers opposed to the meters pending the end of the court fight.
A critical part of the legal argument hinges on Act’s 129′s requirement that utilities “shall furnish” smart meters to customers. The Commonwealth Court, in its Oct. 8 decision, interpreted those words to mean that utilities must offer a smart meter, but it does not “imply that the recipient must take that which is offered.”
Peco, in its legal filing to the Supreme Court, said the term “furnish” is used throughout utility law to describe the services provided by electric companies. It said the Commonwealth Court ruling would arm customers with a veto and “create a patchwork of utility services that must be tailored to the demands and fears of individual customers.”
Six other Commonwealth Court judges heard the case and signed Judge Ceisler’s decision, though two signed a partial dissent in which they appeared to agree with the utilities on the critical opt-out issue, saying that the General Assembly’s intent was not ambiguous.
“Smart meters are mandatory in the commonwealth,” wrote Judge J. Andrew Crompton, who was joined by Judge Christine Fizzano Cannon. “There is no opt-out provision.”
They said that if the General Assembly had wished to give customers a veto, they could have done so in 2008 or in any year since. “However, it has not, and it is not this court’s role to create an opt-out provision where none exists statutorily,” they said.
First Published November 11, 2020, 9:12pm