In its sixth trip back to the courtroom, the Mid-Atlantic Power Supply Association filed yesterday a notice of intent to appeal a recent Baltimore Circuit Court ruling that affirmed an electric deregulation plan giving 1.1 million residential customers a rate reduction for six years.
MAPSA contends that Circuit Judge Albert J. Matricciani Jr. erred in his decision last month and relied on stale case law when he upheld the deregulation plan Sept. 20.
Deregulation went into effect Aug. 5 in the Baltimore region - a month later than the rest of the state - after several failed attempts by MAPSA to block its start.
Matricciani's ruling allowed Baltimore Gas and Electric Co. to continue collecting $528 million from its customers as partial repayment for money the company spent to build power plants and to continue charging residential customers 4.224 cents per kilowatt hour for electricity.
In its appeal to the Maryland Court of Special Appeals, MAPSA charges that the Maryland Public Service Commission and other parties traded away competition in the state's residential market for price freezes and token rate reductions that amounted to a plan that is too favorable to the incumbent utility.
"MAPSA members thought long and hard about continuing with the appeal process," said Suzanne Daycock, executive director of the New Jersey-based trade group that represents power suppliers. "I was deeply disturbed by the decision reach by the Circuit Court judge. I sat in his courtroom and read the parties' briefs regarding Maryland law and judicial precedent.
"What's so disturbing about the decision is that it relies upon past court decisions that have long since been superseded by more recent decisions in the Court of Special Appeals," Daycock said.
MAPSA's action came as no surprise to BGE or PSC officials, who said yesterday that the group's deadline to appeal was set to expire Tuesday.
"It's just a continuation," said Robert S. Fleishman, general counsel for Constellation Energy Group, the parent of BGE. "It's been so many times that they've challenged the settlement and in so many ways that I've lost count. In our view this just seems to be more of the same. They're challenging a settlement that was fully reviewed by the Circuit Court judge, who made a decision that we think was the correct decision.
"We think the settlement has stood and will stand the test of time," Fleishman said.
The appeal put something of a damper on a week of high points for Constellation, which announced Monday that the company would split into two next year - one, a fast-growth, unregulated company called Constellation Energy Group that will generate and sell power nationwide; the other, a regional electric company called BGE Corp. that will include its regulated subsidiary, BGE.
Fleishman said the appeal would not affect those plans and it "will have absolutely no impact on customers. Everything is moving forward."
The deregulation plan was approved by the PSC in November. Thirteen other parties also agreed to the settlement, including the Office of the People's Counsel, guardian of consumer rights in utility matters, and other industrial and private customers.
But MAPSA, which participated in the settlement discussions, opposed the settlement.
MAPSA filed its appeal in December but was twice denied when it sought a stay in Circuit Court. MAPSA then asked the Maryland Court of Special Appeals for a stay and was denied, and finally turned to the Court of Appeals, which on June 30 ordered the stay for deregulation in Baltimore and the five surrounding counties only hours before the sweeping agreement was to take effect.
When that stay was lifted in July by the Court of Appeals, the case was sent back to Circuit Court, which granted MAPSA another stay. But on Aug. 4, Matricciani lifted that stay and granted MAPSA a hearing on the merits of the case. On Sept. 20, he affirmed the PSC decision.
To date, only two residential customers have switched from BGE to another electric supplier.
"I don't think [MAPSA's] going to win," said PSC Commissioner Catherine I. Riley, who will become chairman of the agency next month after Glenn F. Ivey steps down from the position. "They have objected all the way through the BGE settlement. I think we did a good job and I think we were fair."