On appeal from the New Jersey Board of Public Utilities, Docket No. E007030203, in A-4047-09 and A-5948-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 19, 2010 in A-3374-09 and December 7, 2010 in A-4047-09, A-5948-09 and A-5949-09 - Decided Before Judges Parrillo, Yannotti and Skillman.
On appeal from Executive Order 14 of 2010 in A-3374-09.
On appeal from 2010 Supplemental Appropriations Act in A-5949-09.
On June 29, 2010, the Governor signed into law a Supplemental Appropriations Act for the 2009-10 State fiscal year. L. 2010, c. 19. Section six of this Appropriations Act provides:
Notwithstanding any provision of law or regulation to the contrary, there may be transferred from the Clean Energy Fund to the General Fund as State revenue an amount not in excess of $158,000,000, subject to the approval of the Director of the Division of Budget and Accounting.
The lead appeal addressed by this opinion challenges the validity of this provision.
We reject this challenge and conclude that section six of the 2010 Supplemental Appropriations Act is valid. This conclusion moots the other three appeals before us, which challenged interim executive actions relating to the same $158,000,000 in the Clean Energy Fund that the Supplemental Appropriations Act authorized to be transferred to the General Fund.
Before setting forth our reasons for upholding the validity of the authorization in the 2010 Supplemental Appropriations Act for the transfer of Clean Energy Funds, we first describe the legislation under which those funds are collected, the manner in which those funds have been administered in recent years, and the executive actions preceding enactment of this Appropriations Act.
Clean Energy Funds are collected under a section of the Electric Discount and Energy Competition Act (EDECA), N.J.S.A. 48:3-49 to -98.1, enacted in 1999, L. 1999, c. 23, which authorizes electric and gas public utilities to impose a "societal benefits charge" upon their customers to recover certain costs enumerated in this section.*fn1 N.J.S.A. 48:3-60(a). The Board of Public Utilities (BPU) determines the amount of the societal benefits charge each utility may collect. Ibid. A utility is authorized to use the money collected through this charge for specific legislatively prescribed purposes, including social programs, N.J.S.A. 48:3-60(a)(1); nuclear power plant decommissioning, N.J.S.A. 48:3-60(a)(2); manufactured gas plant remediation, N.J.S.A. 48:3-60(a)(4); and consumer education, N.J.S.A. 48:3-60(a)(5).
In addition to these purposes, N.J.S.A. 48:3-60(a)(3) authorizes the use of money collected from the societal benefits charge for the "costs of demand side management programs," which consist of "energy efficiency" and "renewable energy" programs. The Legislature directed the BPU to play a more active role in determining the allocation of money for these purposes than for the other purposes for which money collected under the societal benefits charge may be used. Specifically, N.J.S.A. 48:3-60(a)(3) requires the BPU to undertake, in consultation with the Department of Environmental Protection (DEP), a "comprehensive resource analysis of energy programs" to determine "the appropriate level of funding for energy efficiency and . . . renewable energy programs."
In the years immediately following enactment of the EDECA, the money collected under the societal benefits charge that the BPU allocated to energy efficiency and renewable energy programs, like money allocated to the other purposes authorized by N.J.S.A. 48:3-60(a), was expended directly by the utilities. However, in 2003, the BPU decided to establish an independent fund into which money from the societal benefits charge allocated for these purposes would be deposited, which became known as the Clean Energy Fund at issue in this appeal. Although the BPU originally deposited the money in the ...