Blindsided by a late question of constitutionality, backers see an effort to preserve incentives undone by seeds of confusion.
by Tux Turkel, Staff Writer
Portland Press Herald news story
Solar advocates spent months promoting the benefits of rooftop installations, developing details on topics ranging from job growth to lower electric rates. They thought they had the votes on Aug. 2 to override a veto by Gov. Paul LePage of a crucial solar energy bill.
Then Rep. Richard Malaby, a Republican from Hancock with no interest in energy policy, rose on the floor of the House of Representatives. Malaby launched into a speech that had nothing to do with solar power. Instead, he made a passionate case that it was improper for the House to take up the bill because it was unconstitutional, citing a landmark U.S. Supreme Court ruling on the Affordable Care Act.
The solar lobby never saw that one coming. Neither did House Speaker Sara Gideon, a Democrat. She was forced to put the House into recess for 18 minutes while she consulted Mason’s Manual of Legislative Procedure, the official parliamentary guidebook.
No one knew that the seed for Malaby’s diatribe was planted months ago, by a LePage energy adviser with a long history of undermining solar.
When the vote finally came, solar supporters failed by three votes to get the two-thirds majority needed to override the governor’s veto.
Malaby’s speech is being cited as an example of how tactics, including his out-of-the-blue comments, an alleged misinformation campaign by Central Maine Power and a strategic legislative blunder, combined to create confusion and defeat the solar lobby for a second year in a row. In the aftermath, some solar advocates say facts fell victim to politics.
“Facts do matter and they will eventually prevail,” said James Cote, a lobbyist who represents an alliance of solar installers. “But we’re in a pretty toxic environment with solar policy and anything with the word ‘solar’ in it.”
The vote has created more uncertainty in Maine’s solar industry, which employs about 500 people, and keeps Maine in the back of the pack of states developing solar power as a means of energy independence. Solar advocates have also filed a lawsuit, challenging the state’s authority to phase out existing solar incentives.
Solar power generation has been growing nationally by double digits, driven in part by renewable energy mandates in states such as California and Massachusetts. But growth has been stunted in Maine, which lacks state incentives and has a governor who is hostile to an energy source he sees as shifting costs onto other electric customers.
Last year, a bill was introduced that aimed to update net metering, a 1990s rule that gives panel owners a 100 percent credit for the retail value of excess power they feed back into the electric grid. It passed, but lawmakers failed to override LePage’s veto by two votes.
This year, after another expansive solar bill ran into opposition, supporters tried a scaled-back approach. L.D. 1504 sought to keep current net metering laws in place while the Public Utilities Commission – which had enacted its own rule to gradually phase out net metering – did a cost-benefit study.
But solar supporters never got buy-in from CMP. To the contrary, Maine’s largest utility doubled down.
On July 18, Sara Burns, CMP’s president and chief executive, wrote a column published in the Portland Press Herald that asserted incentives for rooftop solar owners could add $150 million to customer bills through 2035. That and other factors led lawmakers to put off a planned vote on the veto override, when they first convened to consider outstanding bills on July 20.
Solar supporters accused Burns of scare tactics, and she later acknowledged that her $150 million figure reflected a worst-case scenario. It contradicted estimates from the Maine Office of the Public Advocate that the bill would actually provide customers with a modest savings. But the column had its desired effect: It made some lawmakers who had supported the solar bill think twice.
A CONTROVERSIAL AMENDMENT
The blur of competing facts formed a backdrop on Aug. 2, when lawmakers returned to finally end the longest legislative session in state history. Facing decisions on major public issues such as cellphone use while driving and the legal age for buying cigarettes, the House was asked to consider a new solar bill few members had heard of.
L.D. 1373 had been introduced earlier this year by Rep. Seth Berry, D-Bowdoinham. It began life as an environmental activist wish list of incentives and rebates, but could never win enough support to move ahead.
On Aug. 2, the bill was reborn as a vehicle to fix a perceived problem. Emera Maine, which serves electric customers in northern and eastern Maine, had raised concerns about legal language in the solar bill. Berry and other Democrats thought they could clarify the language, by using L.D. 1373 as a template for a new amendment.
This turned out to be a mistake. LePage’s Republican allies skillfully used the amendment bill to sow doubt about solar.
House Republican Leader Ken Fredette rose and said he was confused. The solar bill had been vetoed by the governor, he pointed out. But now comes an amendment, which has been turned into a new bill, on the last day of the session, which hasn’t gone through the committee process and which he hadn’t seen until five minutes ago.
“A bill that amends a bill that the chief executive has vetoed,” Fredette said, sounding exasperated.
Minutes later, Rep. Beth O’Connor, R-Berwick, took the floor. A member of the committee that handles energy issues and a critic of renewable energy subsidies, she said she couldn’t possibly understand the amendment bill in five minutes. Her voice rising in anger, O’Connor called the bill a desperate attempt to just pass something.
Berry then rose to apologize for any confusion. The amendment, he said, was just two sentences. It didn’t change any current practices, just clarified how rooftop solar owners are compensated.
But when a vote was called at the urging of Republicans, the House voted 73-64 to indefinitely postpone the amendment.
Cote, the solar lobbyist, said his side didn’t have time to explain the measure to lawmakers.
“We thought it made sense,” he said. “It was meant to be an olive branch. But it was easy at that point for opponents to take it and just confuse the issue even further.”
THE IMPACT OF DOUBT
Confusion intensified later that afternoon, when the solar bill came up.
Gideon was caught off guard by Rep. Malaby’s contention that the House had no standing to consider the bill. In his view, the bill redistributed funds, which amounted to a tax on non-solar users. He thought that was unconstitutional, based on wording in Maine law and a U.S. Supreme Court ruling on the individual mandate for health insurance, which he read aloud.
Masking her displeasure, Gideon replied that Malaby had presented a well thought-out argument “that took some time for someone to put together.” After reviewing the parliamentary rules, though, she determined the House could proceed.
But this unexpected debate over whether the solar bill was a tax gave Republicans new ammunition. Fredette rose to say that the tax question, combined with the failure of L.D. 1373, exposed the “gaping hole” in L.D. 1504.
Rep. Heather Sirocki, R-Scarborough, agreed, saying she found Malaby’s argument “compelling.” Then she said she would “share a few words from Sara Burns,” and began reading passages from the CMP chief’s July 18 newspaper column, repeating the disputed projection of a $150 million hit to ratepayers.
Democrats tried to quell the growing rebellion. A member of the energy committee, Rep. Heather Sanborn, D-Portland, calmly listed the limited steps that would be taken under the bill. Rep. Janice Cooper, D-Yarmouth, urged members not to be sidetracked by a false argument, and emphasized that the bill contained no taxes.
But the tide had already turned. While the veto override easily passed in the Senate, 28-6, it failed in the House, 88-48, three votes short of the two-thirds majority needed. Fourteen House members were absent from the vote, and seven Republicans who initially supported the measure changed their positions.
In an interview last week, Malaby said he got the idea for his speech months ago from one of LePage’s energy advisers, Jim LaBrecque, a vocal opponent of solar energy. Malaby said he first thought the analogy between provisions of the solar bill and the Affordable Care Act was “crazy.” But LaBrecque persisted, providing him with appeals court rulings meant to back the claim.
Then, while watching a Red Sox game in mid-July, Malaby said something jogged his memory and led him to get on the internet and do his own research. What he learned formed the basis of his speech to the House, he said.
“I think I swayed a few Republicans who voted against the bill, because they are more constitutionally oriented,” Malaby said. “I think it made a difference.”
After the vote, solar supporters were left trying to sort out what happened.
“What’s so frustrating is, it’s not about policy,” said Chris Rauscher, public policy director for Sunrun Inc., a top national rooftop installer that lobbied for the Maine bill. “This is complicated stuff. So it’s disingenuous to inject (misinformation) into the debate. The best way to kill a bill like this is to inject more doubt.”