US midterms 2022: Energy transition at the forefront of commission elections

Introduction

During the 2022 midterm elections, nine states will hold utility commission elections for 15 seats. Elections for two open seats on the Georgia Public Service Commission have been postponed and will not occur in November.

Changes in the makeup of these commissions have the potential to result in shifts in the direction of energy policy in their respective states. When assessing the level of regulatory risk for investors, Regulatory Research Associates attributes a greater level of investor risk to states where commissioners are elected rather than appointed.

Of the nine states holding elections in 2022, commissioners in three states — Louisiana, Montana and Nebraska — are elected by district, while in the remaining six states — Alabama, Arizona, North Dakota, Oklahoma, South Dakota and Texas — commissioners are selected in statewide elections.

All nine utility commissions are controlled by a Republican majority, with six of the commissions entirely comprised of Republican members. RRA takes no view on which political party is the more or less constructive option from an investor viewpoint.

Issues raised by the candidates demonstrate varying opinions on the appropriate scope and pace of the energy transition, as well as the role of gas in the nation's energy future. Certain candidates have raised concerns regarding the trajectory of customer rates and questioned whether customer interests are being sufficiently represented under the existing framework.

Legal battles postpone Georgia utility commission elections

This year's Georgia Public Service Commission election cycle has been marred with multiple legal controversies, ultimately resulting in the postponement of the general election for the two eligible terms. Several lawsuits have been filed, with issues ranging from violations of the Voting Rights Act to the unconstitutionality of the state's residency requirements.

During this election cycle, there typically would have been only one seat on the ballot; however, a special election was to occur for the PSC District 3 commission seat. The current District 3 commissioner, Republican Fitz Johnson, was appointed by Republican Gov. Brian Kemp on July 21, 2021, to fill a vacancy created by the appointment of former Chairman Chuck Eaton to the Atlanta Judicial Circuit. Therefore, Johnson must run in a special election to serve the remainder of the term, which expires in December 2024.

Before the cancellation of the PSC elections, Democrat Patty Durand and Libertarian Colin McKinney were set to challenge incumbent Republican Vice Chairman Tim Echol for the District 2 seat, while Democrat Shelia Edwards was to face Johnson for the District 3 position.

Statewide utility commissioner races

Alabama

Two Alabama Public Service Commission seats will be on the ballot this year. In both instances, the incumbents seek reelection and will face only Libertarian candidates since no Democrats filed to run for the positions. Commissioners serve four-year terms beginning in November, and the terms on the ballot this year will extend to November 2026.

Place 1: Incumbent Commissioner Jeremy Oden, a Republican, faces Libertarian Ron Bishop in the general election.

Oden was initially elected to the PSC in 2012. Before being elected, Oden was a state House of Representatives member from 1998 to 2012. Oden has campaigned on the promise to keep energy reliable and affordable. If reelected, Oden promises to continue his fight for "common sense energy policies that put Alabama and America first."

Bishop is an information technology professional. While not much is known about Bishop's platform, in the past, Bishop has stated he believes in free markets.

Place 2: Incumbent Commissioner Chip Beeker, a Republican, faces Libertarian Laura Lane.

Beeker was first elected to the PSC in 2014 and served on the Greene County Commission from 1986 until 2006. Beeker has pledged to continue opposing the Biden administration's energy and climate agenda and the proposed Green New Deal. The candidate has maintained that his main priority is job growth within the state.

Lane has a background in business administration and experience in configuration management and policy analysis for the aerospace industry. Lane supports facilitating the deployment of alternative energy and fuel options, as well as removing the $5.41/kW tax, or capacity reservation charge, placed on Southern Co. subsidiary Alabama Power Co. ratepayers who have installed solar panels.

Arizona

Members of the Arizona Corporation Commission, or ACC, are elected through plurality block voting, under which voters may select as many candidates as there are open seats. Therefore, the candidates with the most votes are elected to the commission. In the primary election, the top two candidates from each party advance to the general election. Commissioners serve four-year terms, and the two terms on the ballot this year will extend to January 2027.

ACC incumbent Justin Olson, a Republican, declared his candidacy for Arizona's U.S. Senate seat but was ultimately defeated during the state's primary election. Olson is not seeking reelection to the ACC.

Commissioner Sandra Kennedy, a Democrat, is serving a term that extends to January 2023 and is seeking reelection. The other candidates for the two open seats are Democrat Lauren Kuby and Republicans Nick Myers and Kevin Thompson.

Kennedy, a former state representative and senator, was elected to the commission in 2018 and had previously served on the commission from 2009 to 2013. During a candidate debate, Kennedy stated, "only a transition to clean solar energy from fossil fuel generation can lower and actually stabilize utility rates, with the enormous benefit of cleaning up [Arizona's] air and saving large amounts [of] precious water."

Kuby is a current member of the Tempe City Council and serves as a senior global futures scientist at Arizona State University's Global Futures Laboratory. Kuby is pledging to be a "corporate watchdog and a consumer and climate champion" and has stated that commission members need to "hold utility monopolies accountable for their actions and inactions."

A former software engineer and small business owner, Myers has worked as Commissioner Justin Olson's policy adviser for over a year. In an interview with Phoenix, Ariz.-based AZCentral, Myers supported repealing the state's renewable energy standard due to its effect of "forcing" emerging technology on utilities.

Thompson, an Air Force combat veteran and current City Councilmember for Mesa, Ariz., has campaigned on a pledge to protect consumers and businesses and ensure the state has a reliable energy grid by working with utilities to ensure their integrated resource plans account for current and potential growth as well as capacity needs.

North Dakota

North Dakota Public Service Commission members are elected in statewide elections and serve six-year staggered terms. There are two PSC positions on the ballot in November.

Special election — partial term: Typically, there would have only been one PSC position on the ballot during this election cycle; however, a special election will occur in which current Commissioner Sheri Haugen-Hoffart must run for retention to serve the remaining four years of a six-year term after being appointed to the position earlier this year. Haugen-Hoffart faces Democrat challenger Trygve Hammer in the general election.

Haugen-Hoffart, if elected, is committed to assuring that utility providers are fairly regulated while also protecting consumers and taxpayers. In addition, Haugen-Hoffart promises to continue efforts to protect the security of the energy grid and the reliability of the state's supply chain.

Hammer is a combat veteran, who enlisted in the U.S. Navy as a nuclear power machinist and was commissioned as a second lieutenant in the Marine Corps, and also a former oil field worker. Hammer says North Dakota needs leaders who will work to keep utility costs low and protect public interest, all while preserving the state's landscape.

Full-term PSC election: Incumbent Chair Julie Fedorchak, a Republican, is seeking reelection to a term that would expire in December 2028 and will face Democrat Melanie Moniz in November.

Fedorchak was first appointed to the commission in 2012. Fedorchak states that the PSC is constantly advocating "for changes to stabilize markets, to help stave off retirements, to create a more gentle glide path through this [energy] transition, and not jeopardize reliability or affordability."

Moniz is a member of the North Dakota Human Rights Coalition and Center for Science in the Public Interest. Moniz's campaign has been relatively quiet on her policies regarding utility regulation but believes that commissioners need to consider public input when going about PSC business and that the accessibility of public meetings is paramount for such input.

Oklahoma

As a result of a 2020 constitutional amendment, beginning in 2010, members of the Oklahoma Corporation Commission, or OCC, became subject to a prospective two-term limit. Consequently, Republican OCC Chair Dana Murphy was ineligible to seek reelection in 2022, becoming the first commissioner to be term-limited under the constitutional provision.

Commissioners serve six-year terms, and Murphy's successor will serve a term that expires in January 2029. Democrat Warigia Margaret Bowman will face Republican Kim David in the general election. Independent Don Underwood will also appear on the ballot.

Bowman is a professor at the University of Tulsa College of Law, teaching water, natural resources and energy law. Fair utility rates, pipeline safety, an upgraded grid and high-skilled jobs in the energy sector are some of Bowman's stated priorities if elected. Bowman stresses the need to conduct a grid audit and ensure that the state has an efficient, resilient and up-to-date grid.

A real estate agent and property manager, David is at the tail end of her third and final term as a state senator and was unable to seek reelection to the Senate due to term limits. If elected to the OCC, David plans to use past experiences to provide reasonable costs of energy and other products to consumers and companies.

South Dakota

Candidates for the South Dakota Public Utilities Commission are nominated at each political party's state convention. Commissioners are selected in statewide elections and serve for six years in staggered terms. There are no term limits for PUC regulators. The seat on the ballot this year would expire in January 2029.

In addition, incumbent Chairman Chris Nelson, a Republican, seeks reelection to a third term on the commission and faces Democrat Jeff Barth in the general election.

Before becoming a commissioner in 2011, Nelson was elected as the secretary of state for two terms before being term-limited. Nelson explains that rate requests cannot be rejected because of personal beliefs, but as commissioner, he is committed to thoroughly reviewing each request by analyzing all the facts and determining how state law applies to all the details.

Barth, a retired Qwest Communications field operations supervisor, has served on the Minnehaha County Commission for 16 years. Barth has criticized state Republicans for "no longer representing the people" but instead siding with companies to prioritize private gains over public interests.

Texas

Members of the Railroad Commission of Texas, or RRC, serve for six years in staggered terms. The seat on the ballot this year would expire in December 2028.

Incumbent Chairman Wayne Christian, a Republican, seeks a second term on the RRC and faces Democrat Luke Warford, Libertarian Jaime Andres Diez and Green Party Hunter Wayne Crow.

Christian was first elected to the commission in 2016. Christian has been critical of renewable energy sources, stating that during the February 2021 winter storm, "unreliable, subsidized forms of energy, like wind, performed the worst" compared to "reliable sources, like natural gas." In addition, Christian stated that meeting the state's energy demands requires long-term solutions, including natural gas-fired electric generation and more oil and gas production.

Warford was formerly the Texas Democratic Party's chief strategy officer and has done consulting in the private sector for energy companies. Criticism of the state's response to the February 2021 winter storm is one of the main components of Warford's platform. Warford pledges to secure the state's energy infrastructure, stating that one of the causes of the grid failure during the winter storm can be traced to a decrease in natural gas supply.

District-specific utility commission races

Louisiana

Louisiana uses a nonpartisan blanket primary system, or a "jungle primary," meaning that all candidates run regardless of political affiliation, and the voters cast ballots in one primary election held Nov. 8. The candidate receiving a simple majority is then deemed the victor; however, should no candidate win by a simple majority, the top two vote-receivers, regardless of party affiliation, move forward to a runoff general election, which would then be held Dec. 10.

Two Louisiana Public Service Commission district seats, District 3 and District 4, are up for election. District 3 incumbent Chairman Lambert Boissiere III, a Democrat, and District 4 incumbent Commissioner Mike Francis, a Republican, seek reelection. Commissioners serve for six years in staggered terms. The seats on the ballot this year would expire in December 2028.

District 3: Boissiere will face Democrat challengers Willie Jones, Davante Lewis, Gregory Manning and Jesse Thompson.

Boissiere said that for the past 10 years, the commissioner has been fighting for renewable energy, resiliency, net metering, energy efficiency, and broadband and pushed for the use of securitization for storm costs.

Jones, a New Orleans insurance adjuster, has stated that energy costs are too high and the utilities are placing this burden on ratepayers. Jones has repeatedly called for universal level billing for utility customers, which would rely on calculating average monthly usage to avoid spikes in monthly charges.

Lewis pledges to enforce a ratepayers' Bill of Rights to limit service disconnections, provide a fixed billing system for senior citizens, ban excessive late fees and strengthen the cap on the maximum profit that investor-owned utilities can be authorized.

Manning supports overhauling the commission's weatherization and energy efficiency program. An advocate for renewable energy, Manning supports restoring the state's net metering program and implementing a community solar program.

Thompson, a civil engineer, pledges to help reduce energy costs and make utility bills more affordable. In addition, Thompson criticized the PSC, stating that it does not serve ratepayers in a just and fair manner.

District 4: Francis seeks a second six-year term and faces Republican Shalon Latour and unaffiliated Keith Bodin in the upcoming election.

Francis has said that while the PSC does not have authority over gas commodity prices, every tool and resource possible is being used to reduce the overall cost of monthly electric bills for ratepayers. Francis states the PSC is exploring policies to bring relief in a legal and responsible manner.

Latour, who initially had no intention of running for the seat, believes that the current commission members have not worked hard enough to induce Entergy Corp. to reduce shareholder profits.

Bodin supports implementing an auditing program to ensure that a utility's storm restoration costs are storm-related and not from unrelated utility programs.

Montana

In November, two Montana Public Service Commission seats will be on the ballot, District 1 and District 5. Commissioners serve four-year, staggered terms and may not serve more than eight years in a 16-year period. The terms of the positions on the ballot this year expire in January 2027.

District 1: Republican Commissioner Randy Pinocci seeks a second term. Pinocci defeated Republican challenger K. Webb Galbreath during the primary election and will run in an uncontested race, as no Democrat filed to run for the position, making Pinocci the presumptive winner.

District 5: The PSC District 5 seat will see a new face as incumbent PSC Vice Chairman Brad Johnson was ineligible to seek reelection due to term limits. Democrat John Repke and Republican Ann Bukacek will face off in the general election.

A retired financial executive, Repke has taught business classes to local communities. Repke claims there is a "complete lack of professionalism and competence" at the commission and points to a string of controversies and court cases that have marred the PSC.

Bukacek is a retired internal medicine doctor who plans on giving fair and balanced protection to Montana's energy needs. Bukacek plans to decrease efforts to remove access to the state's coal and hydro sources.

Nebraska

In Nebraska, two incumbent Nebraska Public Service Commission members were defeated during the state Republican primaries for the District 4 and District 5 seats. The two candidates, Eric Kamler and Kevin Stocker, will run in uncontested races in November and are considered the presumptive winners of their respective races, as no Democrat or independent candidates have filed to run for the positions.

Commissioners serve six-year terms. The terms of the District 4 and 5 seats extend from January 2023 until January 2029.

District 4: Kamler defeated incumbent Commissioner Rod Johnson by a vote of 57.6% to 42.4%.

While campaigning, Kamler said that, if elected to the PSC, a few top priorities would be strengthening energy security, accountability concerning where tax dollars are spent and the expansion of high-speed and reliable broadband internet availability. Kamler has served on the Geneva City Council, representing the Second Ward. Kamler is also U.S. Congressman Adrian Smith's agriculture liaison.

District 5: Stocker presumptively will unseat incumbent Vice Chair Mary Ridder as the District 5 commissioner after receiving 43.4% of the votes. Ridder earned 40.7% of the votes, while challenger Dakota Delka received 15.9%.

Stocker campaigned on issues such as affordable energy, broadband availability, and transportation and claims to have past experience that "will make an immediate and positive impact on the commission." Stocker has owned and operated several transportation businesses that the commission licensed, inspected, and regulate and was also safety chairman on the National Board of the American Bus Association. Stocker earned his degree from the University of Nebraska-Lincoln.

For a more detailed analysis of the 2022 General Elections, refer to RRA's topical special report "General Elections: A deep dive into the 2022 state-level midterm elections."

RRA's assessment of regulatory risk

RRA evaluates the regulatory climate for energy utilities in each of the jurisdictions within the 50 states and the District of Columbia — a total of 53 jurisdictions — on an ongoing basis. The evaluations are assigned from an investor perspective and indicate the relative regulatory risk associated with the ownership of securities issued by each jurisdiction's energy utilities. In addition to the state commissions that have direct responsibility for setting rates, each evaluation is based upon consideration of the numerous factors affecting the regulatory process, including gubernatorial involvement, legislation and court activity.

State utility regulatory commissions are quasi-judicial agencies created to oversee rates charged by the utilities, which are essentially government-sanctioned monopolies. Along with establishing rates, countless other proceedings come before commissions, including mergers, grid modernization programs, integrated resource planning, storm-cost recovery proceedings and other generic proceedings.

In addition to how a commission exercises its authority over the utilities, several factors may influence the degree of investor risk associated with utility commissions. Such factors include the process through which regulators are selected, the experience and background of the commissioners and the amount of oversight the commissions have been granted.

Regarding energy matters, all else being equal, regulatory issues are less politicized when regulators are not selected by election. When assessing the level of regulatory risk for investors, RRA takes no view on which political party is the more or less constructive option; however, RRA does attribute a greater level of investor risk to states in which commissioners are elected rather than appointed.

Realistically, a commissioner candidate who indicates support for the utilities and their shareholders or appears to be amenable to rate increases is less likely to be popular with the voting public. Whereas candidates who proclaim themselves as "utility watchdogs" or "protectors of ratepayers" may be more critical of the utilities when rate issues come before the commission.

Additionally, there might not be specific experience requirements to run for commissioner, so a newly elected candidate may have a steeper learning curve when it comes to utility regulatory and financial issues, which could also make discerning the decisions that an individual might make more difficult, increasing uncertainty.

^{Regulatory Research Associates is a group within S&P Global Commodity Insights.}

^{S&P Global Commodity Insights produces content for distribution on S&P Capital IQ Pro.}