Creating publicly owned utility requires state authority -- Gazette.Net


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Montgomery County Attorney Marc P. Hansen is standing by his opinion that creating a publicly owned power utility in Montgomery would require an act of the Maryland General Assembly.

At the request of Councilman Roger Berliner, Hansen reviewed a 2011 opinion he issued on the subject.

In 2011, Hansen found that to operate a publicly owned utility, the county would need to obtain from the Maryland General Assembly the authority to acquire Pepco’s infrastructure by condemnation.

Looking into the history of how municipally owned electric companies were created in Maryland, Hansen concluded Feb. 15 that history “does not offer an alternative to the steps outlined in the OCA (Office of the County Attorney) Opinion that would need to be taken if Montgomery County wanted to pursue a publicly controlled electric company to replace PEPCO.”

No jurisdiction has really tried to form a publicly owned electric utility in Maryland for 80 years, said Eric Hensal, a county resident and founder of the group Public Power for Montgomery County.

“I still disagree with him (Hansen) at the end of the day,” Hensal said.

But Hensal said he still feels there is enough room to pursue public power in Montgomery.

“And that is what is important,” he said.

Berliner (D-Dist. 1) of Bethesda said he is disappointed that the law appears to afford the county little alternative than action by the state legislature. Currently, he is not planning to puruse any state bills to request the authority to establish public power.

“Personally, I don’t believe the political climate in Annapolis is conducive to granting our county the authority it would require,” he said. “Given the political dynamic in the state legislature, it just is a very, very uphill fight.” The Maryland Attorney General’s Office also opined in 2011 on the issue at the county’s request, saying it agreed with Hansen.

“We concur with the County Attorney’s description of the legal prerequisites to the displacement of PEPCO by a County-controlled distributor of electricity,” the office said in an opinion signed by Attorney General Douglas F. Gansler, Assistant Attorney General Ann MacNeille and Chief Counsel on Opinions and Advise Robert N. McDonald.

Berliner said he is considering asking the Attorney General’s Office to also give the matter a second look.

Given the significance of electric reliability in Montgomery, he said, it might be worth asking the attorney general for more detail.

For now, Berliner said, he will focus his energy on other efforts to reform electric service in the county.

kalexander@gazette.net