This Pa. law on utility shutoffs unfairly impacts Black and Brown people. It must be repealed | Opinion

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By Josie B. H. Pickens and Robert W. Ballenger 

The COVID-19 pandemic has disproportionately impacted Black and Brown Americans due to long-standing systemic health and social inequities.

Our society’s response should be to remove all the barriers that will make it more difficult for these communities to recover. In Pennsylvania, this means we must not only take action to prevent utility shut offs that, like COVID-19, disproportionately impact Black and Brown people, but also undo harmful policies that deepen and systematize inequity.

The movement for Black lives has brought systemic racism back into the public eye. Just as we must examine racism in policing, public health, public and private sector employment, and education, it is fundamental that we view utility consumer protection laws (and their absence) through the lens of racial justice, to root out those policies and practices that perpetuate injustice and concentrated misery within communities of color.

Black and Brown people have disproportionately suffered utility shutoffs, and the multitude of health, safety, housing stability, and family unity risks that follow.

Customers who fall behind and experience a shut off can lose everything. Their lives are jeopardized when they have no other housing options and are forced to reside in their homes with no heat or electricity. They may be evicted and lose housing subsidies.

Their children may be taken into protective custody. They may experience months, and even years, without utility service. The psychological and emotional impacts are incalculable.

PUC orders halt to utility shutoffs over coronavirus emergency

Restoring equity requires us to confront suffering head-on, and rectify the imbalance created by policies that contribute to systemic racism and oppression. One such policy is Chapter 14 of the Public Utility Code, an unjustified and inequitable law designed to increase collections for Philadelphia Gas Works (PGW).

Chapter 14 instituted draconian restrictions on consumer access to payment arrangements and the commission’s dispute process, meaning that people cannot fairly receive opportunities to catch up on their bills when they fall behind, leading to more utility terminations.

Philadelphia was then, as it is today, struggling with intractable poverty rates and an economic divide that has, for generations, disproportionately harmed Black and Brown families.

PGW was held up as the poster-child for granting utilities broad new powers to shut off and deny service, while using coded language to cast Philadelphians as “deadbeats” who could afford to pay their bills, but simply chose not to pay.

Describing PGW’s customers as “deadbeats” amid an effort to protect “responsible” customers is a prime example of the kind of dog-whistle that hardly veils disdain for poor Black and Brown people.

Chapter 14 was passed by the General Assembly at night, near midnight, with no public hearings (or even public comment), and little debate. Chapter 14 limited residential customers to a single PUC-ordered payment arrangement and prohibited the most financially vulnerable customers, low-income customers who participate in utility Customer Assistance Programs (CAPs), from seeking Commission payment arrangements entirely.

A January report prepared by the Commission, found that since the enactment of Chapter 14, the Commission has turned away 265,265 callers requesting a payment agreement. Together with limitations on utility issued payment agreements, Chapter 14 authorized utilities, in many circumstances, to demand full payment of any outstanding balance as a condition of restoring service, irrespective of whether a customer can afford those payment terms.

Shortly after it was passed by the General Assembly, and signed into law, the legislator who introduced the provisions of Chapter 14 hired former state representative and PUC Commissioner Joseph Rhodes, Jr., to analyze whether, in fact, there was any legitimate need for the legislation.

Rhodes concluded that PGW’s financial performance in 2004 was already improving due to management restructuring, and that there was no evidence to support utility claims that there was a “dead-beat” problem in Pennsylvania. Rhodes predicted that the real-world effect of Chapter 14 would be to produce more misery.

Immediately following the implementation of Chapter 14, Pennsylvania experienced skyrocketing rates of utility terminations and unprecedented numbers of households entering the winter without service.

Year after year, PGW retains its inauspicious honor as the leader in shut offs as a percentage of customers and the gas utility with the most customers entering winter without heat.

The problem was never “deadbeats.” It was unaffordable utility charges that left vulnerable customers with few good options to preserve a life essential service.

By eliminating payment arrangement opportunities and increasing shutoffs, Chapter 14 worked only to make this problem worse.

The PUC recently revised its affordability standards to substantially reduce CAP charges and will soon initiate a rulemaking to revise its universal service regulations, but as Pennsylvania utilities move to implement the Commission’s new affordability policies, Chapter 14 remains a barrier to providing customers with interim relief.

On July 16, PUC Chairperson Gladys Brown Dutrieuille introduced a motion to convene a stakeholder group to establish additional protections to help customers maintain utility service if the moratorium on shut offs, established due to COVID-19, is lifted.

The motion, viewed by itself, was a sensible and thoughtful proposal. In addition to modifying Commission policies, the stakeholder group would consider expanding consumer protections that the General Assembly, in 2004, severely circumscribed.

Brown Dutrieuille’s motion suggested additional Commission-ordered payment arrangements and flexible utility repayment terms could once again be available to customers. But the politically divided Commission was deadlocked on the motion. So while customers remain protected from termination (for now), there is no comprehensive plan to protect low-income consumers from the crushing weight of COVID-19 related utility debt and the myriad inequities that will result when utilities are permitted to resume terminations.

Chapter 14 was grounded in pure speculation about the need to protect those deemed “responsible” from stereotypical “deadbeats.”

It has contributed to lasting inequities in Philadelphia, where 9 out of 10 utility customers who seek assistance from CLS are Black or Brown. It is time for the Legislature to repeal Chapter 14.

Racism continues to affect Black Americans in all aspects of their lives, including policing, public health, public and private sector employment, and education. Latinx and other people of color also face systemic racism stemming from their history and experiences of discrimination and injustice.

As the commission considers whether, and when, to lift the moratorium on utility shut offs, it is vital – as a matter of racial justice – to ensure that fair and equitable opportunities to maintain service are restored.

Josie B. H. Pickens and Robert W. Ballenger are co-directors of the Energy Unit at Community Legal Services where, through direct legal representation and policy advocacy, they fight to ensure that all Pennsylvanians have access to affordable water, heat, and electricity in their homes. They write from Philadelphia.