The Kentucky Public Service Commission on June 14 said that it has issued an order stating that electric vehicle (EV) charging stations are not utilities and therefore should not be subject to regulation.
The ruling intends to remove any ambiguity over the legal status of EV charging stations and pave the way for the deployment of more such stations in Kentucky, which has lagged behind neighboring states in the availability of public EV charging stations, with 94 in the state thus far, the commission said.
As noted in the order (Case No. 2018-00372), currently, only two electric utilities in Kentucky – Kentucky Utilities Company and Louisville Gas and Electric Company – have tariffs that govern EV charging stations (EVCSs), including privately owned EVCSs and EVCSs owned by the utilities.
The order states that any EV charging station that purchases power from a regulated electric utility or generates its own power solely for the purpose of charging EVs is not subject to commission jurisdiction, the commission said in its statement.
As noted in the order, the commission in November 2018 initiated the proceeding to investigate its jurisdiction over EVCSs and whether an entity that owns or operates an EVCS is subject to the commission’s statutory authority over electric utilities.
An EVCS would have to meet the following criteria to be an electric utility subject to the commission’s jurisdiction:
- An EVCS must be a “facility used or to be used for or in connection with” the “generation, production, transmission, or distribution of electricity”
- An EVCS must be a “facility” that provides electricity “for lights, heat, power, or other uses”
- An EVCS must be a “facility” that provides electricity “to or for the public, for compensation”
The commission added in its order that the majority of commenters in the proceeding concluded that an EVCS is not a utility, and therefore is not subject to the commission’s jurisdiction. The majority of the commenters who concluded that an EVCS is not a utility based their conclusion on their determination that distribution of electricity ends at the meter, and thus an EVCS is an electric-consuming facility and not an electric distribution facility.
However, the commission added, it is well settled that the defining characteristic of a public utility is service to, or readiness to serve, an indefinite public, which has a legal right to demand the utility’s service. Thus, the commission said, determining whether an EVCS is a public utility requires an analysis of “to or for the public.”
Nearly 50% of states have concluded that EVCSs are not utilities, with state regulators determining either that an EVCS provides service to a limited, defined class, and therefore does not provide service to or for the public, or that an EVCS provides a service where electricity is incidental to the transaction.
If an EVCS were deemed to sell electricity to or for the public, it would violate the electric territorial boundary act, KRS 278.016-278.018, the commission said, adding that enacted in 1972, the statutory provisions were designed to encourage the orderly development of retail electric service, which is electric service furnished to a consumer for ultimate consumption. Each regulated utility providing retail electric service is granted an exclusive service territory and is prohibited from serving consumers who are not within the regulated utility’s certified territory, the commission said.
Consistent with commission precedent, if an EVCS does not provide service to or for the public, then it is not an electric utility under KRS 278.010(3)(a), the commission said, noting that if an EVCS is not an electric utility, as defined by statute, it would not be subject to commission jurisdiction or to the electric territorial boundary act.
“Although we reach our determination based on whether an EVCS provides service to the public, we agree with the majority of commenters that an EVCS is an end user or electric-consuming facility, and is not a distribution facility,” the commission said. “We reach this conclusion for similar reasons as the comments: an EVCS provides a battery charging service where an electric current – that the EVCS did not generate, transmit, or distribute – passes through a charging port to an EV battery.”
The commission said that it finds that an EVCS does not provide electric service to or for the public because EVCSs provide a limited service of charging EV batteries to a select group of people, namely, EV owners. An EVCS does not have a duty to serve the public at large, nor do they hold themselves out as ready to furnish electric service to the public at large on a non-discriminatory basis, the commission said. Furthermore, an EVCS may not be able to serve all EVs on the market because there are different EV batteries and charging ports, depending upon the EV brand, the commission noted.