Expired Commissioner Jon McKinney announced his resignation from the WV PSC last week. Mr. McKinney’s resignation will be effective at the end of December, exactly 2 1/2 years after his term expired in June 2011. So, once again, Gov. Tomblin has an opportunity to appoint a real leader to the Commission, who will stand up for West Virginia against the interests of corporate utility holding companies based in Ohio (AEP and FirstEnergy) and American Water Company (New Jersey).
Mr. McKinney’s resignation leaves Chairman Mike Albert in a dominating position on the Commission. The former Jackson Kelly lawyer, who long represented American Water Company’s West Virginia American Water and Allegheny Energy (swallowed by FirstEnergy in 2012), will be the only Commissioner with experience and personal familiarity with the issues currently facing the PSC.
The conflicts of interest Mr. Albert brings with him from Jackson Kelly continue to hinder the work of the Commission. Shortly after he was appointed in 2007, Mr. Albert had to recuse himself from the TrAIL transmission line case, because he had personally worked on preparing Allegheny Energy’s application to the PSC. There was at least the appearance of a similar problem with his presiding over the PATH case, which was filed in May 2009, because the two transmission projects were closely linked.
Mr. Albert’s conflicts of interest continue to haunt the PSC’s work, as Mr. Albert abruptly recused himself from the West Virginia American Water general investigation into the company’s failed response to the Freedom Industries chemical disaster. This recusal was a real blow to the investigation, because, following the resignation of Commissioner Palmer in September, only Commissioner McKinney was left available to hear the case. WV law requires that no less than two commissioners are needed to issue orders or make decisions at the PSC. So, the water company case came to a grinding halt.
As Ken Ward points out in his article on the McKinney resignation, WV American Water Company investigation has a number of issues piling up. Newly appointed Commissioner Brooks McCabe may be able to catch up on the six month old case, but the commissioner to be appointed to replace McKinney will be even more behind. The whole situation seriously hampers the effectiveness of the investigation.
The PSC also has two major electric company base rate cases before it. There is a tentative settlement in the FirstEnergy case, but the AEP case is only just getting going. Base rate cases, which determine how much of a company’s fixed costs can be recovered from rate payers, only come along once every three to five years, so both of these cases will have lasting impacts. Commissioner Albert is still presiding over both these cases, so he will have a major impact on their outcome.
Gov. Tomblin needs to replace Commissioner McKinney with a knowledgeable lawyer with extensive experience in utility regulation. This is the only way to provide a counterweight on the Commission to Mr. Albert’s Jackson Kelly career. Lawyers such as past Consumer Advocate Billy Jack Gregg or current Consumer Advocate Jacqueline Roberts would be excellent choices.
The PSC Commissioner job is a hard one, that requires knowledge and experience. Much as we would like more citizen representation, utility regulation is a specialized field and the work load is heavy. Above all, we need a new commissioner who is not captured by the corporations he/she is regulating and a commissioner who will stand up for West Virginians.