FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO.

904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

TESLA, INC., )
) VERIFIED ARTICLE 78
Petitioner/Plaintiff ) PETITION AND COMPLAINT
)
against ) Index No.:

) Date Filed:
NEW YORK STATE PUBLIC SERVICE )
COMMISSION, )
)
Respondent/Defendant. )

("Tesla"
Petitioner/Plaintiff Tesla, Inc. or "Petitioner"), by and through its attorney,

Braymer Law, PLLC, submits this Verified Article 78 Petition and Complaint against the New

York State Public Service Commiccinn with knowledge of its own acts and status
("Commission"),

and acts taking place in its preseñce, and upon information and belief as to all other ñiatters, and

alleges as follows:

Preliminary Statement

1. This proceeding asks that this Court review under Article 78 of the Civil Practice Laws and Rules

("C.P.L.R.") two Orders recently issued by the New York State Public Service Commission (the

"Commiccinn") in Case 18-E-0138,Proceeding on Motion of the Co--iocion Regarding Electric

Vehicle Supply Equipiñeñt and Infrastructure. This proceeding also asks that this Court declare

the two Orders void under C.P.L.R. § 3001. The Orders establish a Framework for an Electric

Vehicle ("EV") Direct Current Fast Charging ("DCFC") Infrastructure Program (hereiñãfter, the

"Program"), designed to spur private developers to invest in publicly available fast charging

Filed in Albany County Clerk's Office 08/02/2019 04:25:22 PM 1 of 21 Index # 904877-19 Clerk: KT
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

stations¹ drivers' anxiety,2

as means of eliminating EV range and thereby advance the public

policy goal of rapidly increasing EV adoption.

2. The Orders are legally defective, as the Commission failed to provide adequate notice that it

intended to use this proceeding to favor certain private developers over others, in direct contrast

choice;3
to the State's long held policy goal of promoting customer arbitrarily and capriciously,

and disqualified the one developer - Tesla - whose investments have

discriminatorily, irrationally,

needle"
"moved the on electrifying transportation and whose continued growth is crucial to this

State's ability to achieve its policy targets; lacked any evidentiary basis for concluding that the

funds,"
Program will constitute a "prudent investment of ratepayer given that, as approved, the

Program will incentivize the development of chargitig stations that cannot be utilized by the

overwhelming majority of EVs on New York roads today, or likely to be on New York roads in

"regulate"
the foreseeable future; and exceeded the bounds of its jurisdiction by seeking to the

business model and technologies customers adopt, thus putting its thumb on the scale of the EV

infrastructure industry.

3. For years, New York has dedicated considerable resources towards greening its energy sources as

means of slashing its carbon footprint, improving air quality, and reducing the costs of energy for

all New Yorkers. In early July, New York lawmakers and Governor Cuomo reached a landmark

I
There are three of charging
categories facilities: Level 1, Level 2, and Level 3. Level 3 is known more commonly
"DCFC."
as Direct Fast Charging,
Current or Level 1 theilities can dispatch a charge of 120 volts, and can charge a
30 kW hour ("kWh") car battery in approximately 8 hours. Level 2 facilities are capable of charging at 240V, and
can charge the same size car battery in roiighly 4 hours. DCFC facilities, which can charge at 19kW or more, can
typically charge the same car battery in less than 30 minutes. New York State Public Service Cer-minion Case 18 -
E-0138, Joint Petition for Immediate and Long-Term Rate Relief to Encourage Statewide Deployment of Direct
Current Fast Charging Facilities for Electric Vehicles, filed April 13, 2018 ("Joint Petition"), n, 2. Going forward, it
is expected that most DCFC facilities will be rated at 50 kW or higher. Id., n. 1.
2 anxiety"
"Range may arise in the decision to purchase an electric vehicle, not only in regard to its estimated range,
but also in relation to concerns regarding the availability of public charging. Id., p. 8.
³
See Matter of National Energy Marketers Assn. v. New York State Pub. Serv. Commn., 2019 N.Y. Slip Op. 03655,
2019 N.Y. LEXIS 1356 (N.Y. Ct. Of App. May 9, 2019).

2 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

agreement that would require the State to all but eliminate its greenhouse gas ("GHG") emissions

2050.4
by As the State's transportation sector is responsible for more of the state's carbon dioxide

sector,5
emissions than any other the State has long recognized that "[t]he state's climate goals

electricity."6
cannot be achieved without a rapid transition to vehicles powered by The State has

also long recognized that EVs offer enormous benefits to non-EV drivers, not only relating to

carbon reduction, but also to the electric system benefits of well-mañaged deployment and

resource.7
operation of electric vehicle supply equipment as a distributed energy Thus, the State

2025.8
committed to having 800,000 Zero Emission Vehicles ("ZEVs") on New York roads by

York.9
However, as of October, 2018, only 38,000 ZEVs were registered in New

4. In April, the New York Power Authority ("NYPA") and other state agencies, collectively known

Petitioners,"10
as "Joint requested that charging stations obtain immediate and long-term relief

from the rates they pay for electricity, as necessary to spurring the development of DCFC facilities

corridors."1¹
"in public places, particularly along major State vehicle Joint Petitioners stated that

"[w]hile slower-charging elements of the State's overall infrastructure are evolving, the current

encouraging."12
prospect for increasing numbers of public DCFCs is not Specifically, the Joint

4 Plans,"
New York
Times, June 18, 2019, "New York to Approve One of the World's Most Aufuitiuüs Climate
httos://www.cooele.com/url?sa=t&rct=i&a=&esrc=s&source=web&cd=3&cad-ria&uact-8&ved=2ahUKEwi5i uF
6s3iAhWLv1kKHOotA0EOFiACeeOIDBAH&url=httos%3A%2F%2Fwww.nytimes.com%2F2019%2F06%2F18%
2Fnyregion%2Fgreenhouse-gases-ny.html&usst=AOvVaw2tlOeJ5vRZSXhMF2 ufuZq.
5
Case 18-E-0138, Order Instisting Proceeding, Issued and Effective April 24, 2018 ("April 24, 2018 Order), p. 1,
citing U.S. Energy Information Admini«ration, State Carbon Dioxide Emissions Data (October 24, 2017) available
at https://www.eia.gov/environment/emissions/state/.
6
CaSe 18-E-0138, Proposal to Encourage Statewide Deployment of Direct Current Fast Charging Facilities for
Electric Vehicles, filed November 21, 2018 (hereinafter, "Consensus Proposal,"), p. 2, citing New York State Energy
Research Development Authority ("NYSERDA") 2017 Biennial Report to the 2015 State Energy Plan: The Energy
to Lead, p. 56.
7 April
24, 2018 Order, p. 2.
8 Consensus ZEV Meracrandüre of Understanding.
Proposal, p. 2, citing New York's pledges pursuant to a multi-state
9
Id., p. 3.
10 The Joint Petitioners were NYPA, the New York State Department of Enviroñmcñtal Conservation ("NYSDEC"),
the New York State Depmanent of Transportation ("NYSDOT") and the New York State Thruway Authority
("NYSTA").
"
Joint Petition, p. 1.
12
Id. (internal citations omitted).

3 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

stations'
Petitioners sought relief from the high demand charge component of DCFC charging

bills.13
monthly utility They argued that at this nascent stage of EV adoption, while charging

station utilization is low, as are profits to be gained from the provision of charging services,

bill.14
demand charges can account for up to 80 to 90% of a station's monthly This, the Joint

Petitioners stated, "present[ed] an untenable financial burden for DCFC investment and

development." 15

5. In November, the Joint Petitioners, now in concert with the state's utilities and other stakeholders

(hereinafter, "Consensus Proposal Sponsors") petitioned the Commission to approve "an incentive

stations.16
program to encourage deployment of public fast charging ('DCFC') Like the Joint

Petitioners, the Proposal Sponsors also reasoned that plãeeinent of fast charging stations in

areas,"
publicly accessible locations, such as "along major roads and in urban was key to lowering

anxiety" adoption;¹7
the "range that deters more widespread EV that meeting the fast-charging

plugs.18
needs of 800,000 ZEVs would require more than 1,500 plugs DCFC In light of the

constraints on the State's resources - the State is planning to install 200 plugs 2020 -
only by

private investments must make up the remainder. To that end, they specifically noted that they

intended their proposed programs to attract developers such as Tesla, ChargePoint and

13 charge"
The "demand is the charge a utility iñpescs for the maximum amount of electricity that can be provided to
a charging station per month, whether or not that amount is actually used. By contrast, the energy charge component
varies based upon the station's volume of c0ñsumption.
14
Id., p. 10.
15
Id., p. 11.
16
The Consensus Proposal Sponsors were the same New York state agcñcies that comprised the Joint Petitioners
(NYPA, NYSDEC, NY SDOT and NY STA), as well as the state's utilities (Central Hudson Gas & Electric
Corporation, ComoH ed Edison Company of New York, Inc., New York State Electric & Gas Corporation, Niagara
Mohawk Power Corpention, Orange and Rockland Utilities, Inc., and Rochester Gas & Electric Corporation
("RG&E"), and the New York State Energy Research and Development Authority ("NYSERDA").
17
18
Consensus Proposal, p. 3. There were 304 DCFC plugs available at the time of the Consensus Proposal. Case 18-
E-0138, Order Estnliiisg Framework for Direct Current Fast Charging Infrastructure Program, Issued February
7, 2019 (hereinafter, "February, 2019 Order"), p. 6.

4 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

Volkswagen to New York State, which they expected would make significant contributions

capacity.19
towards the state increasing its DCFC

6. Finally, recognizing that the high costs of installing and operating charging stations are chilling

investments,20
private and that both the State and electric customers benefit from increased EV

usage, the Sponsors jointly proposed a program that "calls for each utility to provide an annual

stations." 21
per-plug incentive to support the development of public [fast-charging] Thus, the

- utilities22 --
Sponsors intended the per-plug incentive originally proposed by one of the State's

to serve as a means of "providing limited-term cost relief for DCFC station operators to address

challenges"
the short-term economic associated with demand charges, but without needing to

utilities' structures.23
reconcile, or to seriously alter, the state's several present, and varying, rate

7. Tesla is a leading developer and manufactrer of EVs, as well as other clean energy products and

services. In order to serve its EV customers, Tesla funds, builds and operates a network of

center.24
charging stations as a service to its customers, and the network is not operated as a profit

Tesla's vehicles comprised 80% of DC fast charging capable vehicle sales in 2018, and 60% since

2012.25

"Supercharger" customers'
8. In 2012, Tesla began developing its DCFC network to enable its

ability to confidently make road trips with quick chargiñg sessions on highly traveled routes. At

that time, other fast-charging plug connectors (for example, one connector known as a

"CHAdeMO,"
and another known as a Combiñêd Charging System ("CCS")) provided a charge

I'' Consensus
Proposal, n. 11.
20 2019 Order, p. 7.
February,
21 p. 1.
Consensus Proposal,
22 See
Id., p. 4 (noting that the per-plug incentive was proposed by ConEd, in response to the Joint Petitioner's
Proposal).
23
Id., p. 5
24
A map of Tesla's 1,604 Supercharger Stations with 14,081 Superchargers in North America may be viewed at:
https://www.tesla.com/suoercharger.
25 for
Case 18-E-0138, Tesla Petition Rehearing, filed February 28, 2019 ("Tesla Pet."), p. 6.

5 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

kW.26
of up to about 50 At 50 kW, it takes approximately 20 minutes to provide enough charge

miles.27
to drive 50 Tesla viewed charging capabilities and access as limitations and developed a

network capable of capble of higher charge rates. Tesla's chargiñg network and vehicles utilize a

power,28
Tesla-specific e0ññector that is capable of charging vehicles with up to 250 kW of which

can provide up to 75 miles of range in as little as 5 minutes.

9. With its issuance of two Orders, the Commission largely adopted the Consensus Proposal, finding

that per-plug incentive programs will encourage fast-charging station development in a cost-

effective manner. Id., p. 3. However, in both Orders, without any notice or meaningful

opportunity to be heard, the Commission determined it would disqualify Tesla from eligibility for

the incentive.

10. The Commission acknowledged that the Consensus Proposal Sponsors had defined "publicly

accessible" -
fast-charging stations the very ones whose deployment Sponsors argued were

critical to incent -- as "those access without site-specific physical access

meaning allowing

restrictions (e.g., supermarkets, malls, retail outlets, rest stops, visitor centers, train stations,

hotels, restaurants, and parking garages or lots where DCFC stations are open to the public and

users)."29
will be used by a wide variety of

accessible"
11. However, the Commission determined unilaterally that it would define "publicly as

meaning technologically accessible rather than physically accessible. Thus, in its February, 2019

stations"
Order, the Commission defined program-eligible "publicly accessible only as "those . .

26 CHAdeMO in use by Asian mañüfactürcrs such as Nissan and Mitsubishi.

-
connectors are enmmnnly CCS is
commonly in use by American and European cturers such as Chevrolet, BMW, Mercedes and Volkswagen.
27 2019 Order, n. 24.
February,
28
Id., n. 25.
29 2019 Order, p. 44 (emph. added). See also Id., p 9 (noting that "The Conscissus Proposal identifies
February,
common program peectca amongst the [irsvestar-owned utilities ("IOUs")], includiñg . . . applicability to only new
DCF C facilities that are publicly accessible (i.e., without site-specific physical access restrictions such as radio-
access)[.]"
frequency ide1stif1uation, security badge, or otherwisc limited

6 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

type[s,]"
. stations that utilize both . . . the CCS . . . and CHAdeMO plug not Tesla's stations that

standard."30
use Tesla's "own

12. In a subsequent Order, the Commission removed the requirement that qualifying stations be

types.31
limited to those that deployed both CCS and CHAdeMO plug In its place, the

basis;32
Commission ordered that only CCS will qualify on a standalone CHAdeMO and Tesla

connectors could qualify to receive the per plug incentive, as long as stations are co-located with

"proprietary" "non-
CCS plugs capable of providing the same or greater kW level as the or

standardized" deployed.33
plugs being Thus, the Commission held that Tesla could qualify for

the incentive, but only if it co-located at its station plugs capable of serving non-Tesla customers.

Id., p. 23.

fl"
13. The Commission justified its action by stating its "belief that it should elevate "the European

standardization,"
model of ensuring interoperability, connectivity, and Id., rather than honor the

actual modeling done by the Consensus Proposal's Sponsors that depended upon Tesla

34
contributing to the State's ability to achieve its GHG and ZEV targets The modeling tool used

Spon estimate,35
by the sors to develop their 1500 fast-charging station which was developed by

standard"
the U.S. Department of Energy ("DOE") and is widely regarded as the "gold for

developing estimates of infrastructure needs, is agnostic on the issue of connector type. Indeed,

Stations."
DOE's EV charging database characterizes Tesla's Superchargers as "Public

30 - 45.
Id., pp. 44
31 Order Modifying
Case 18-E-0138, Incentive Program and Granting, in Part, Petition for Réhéäriñg, Issued and
Effective July 12, 2019 (hereinafter, "July, 2019 Order"), p. 22.
32
Id., n. 5.
33
Id., p. 5. In its July, 2019 Order, the Commission made clear that it now no longer considers a CHAdeMO connector
to be a etedrd. See July, 2019 Order, p. 22.
34
Tesla Pet., p. 10, citing Joint Petition Preliminary Statemcat, p. 9.
35
Consensus Proposal, p. 3.

7 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

14. The Program authorized by the Commission's February, 2019 Order, as modified by its July,

neutral,"
2019 Order, should be reformulated: (1) as it claims to be "technology but instead,

arbitrarily and capriciously favors certain technologies over others; (2) since it lacks a rational

insofar as it fails to explain how Tesla -- the one EV manufacturer responsible

basis, disqualifying

for 80% of EV sales in 2018 and whose vehicles cannot utilize the CCS connector --
currently

will impact the State's achievement of 800,000 ZEVs and 1422 plugs by 2025; (3) since it

discriminates against Tesla, in violation of the New York State Public Service Law Section 65,

Subsections (2) and (3), which bar the Commission and utilities from directly, or indirectly, by

any special rate, rebate, or other method, subjecting a customer to undue or unreasonable

preference; (4) since it exceeds the Commission's jurisdiction, which ends at the point the utility

grid;36
interc0ññêcts the plug to the electrical and (5) since it rests on a defective record, as the

basis for the Commission's decision to exclude Tesla.

Parties

15. Tesla is a publicly-traded Company, headquartered in Palo Alto, CA.

16. Respondent, New York State Public Service Commission, is an agency of the State of New York

with an office in Albany, New York. The juriediction and authority of the Commission are

delineated in the New York Public Service Law.

Jurisdiction and Venue

17. This Court has jurisdiction pursuant to Article 78 and Section 3001of the C.P.L.R..

36 In
Case 13-E-0199, In the Matter of Electric Vehicle I'olicies, Declaratory Ruling on Jurisdiction Over Pubiluly
Available Electric Vehicle issued November 22, the Commissim' declined to find that its
Charging Stations, 2013,
jurisdiction reached publicly available electric vehicle charging stations

8 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

18. Venue is proper pursuant to C.P.L.R. §§ 506(b) and 7804(b).

19. This proceeding is ripe for this Court's review. In its July, 2019 Order, the Commission stated

that because Tesla had filed its Petition for of the Program "[t]he four-
timely Rehearing Order,

month period in which Tesla can seek review under C.P.L.R. § 217, by filing an Article 78

Rehearing.37
proceeding, commenced with the Commission's issuance of its Order on

Facts

The Commission Failed to Provide Notice of its Intent to Effect a Maior Program Change

20. In April of 2018, a Joint Petition was filed by four New York state agêñcies (NYPA, NYSDEC,

NYSDOT and NYSTA (collectively, "Joint Petitioners")) who sought immediate and long-term

rate relief to encourage the statewide deployment of fast charging facilities for electric vehicles.

See,supra, n, 1.

21. On April 24, 2018, the Commission opened Case 18-E-0138 to explore cost-effective ways to

deployment,38
promote EV and directed the Department of Public Service Staff to convene a

Teeb_nical Conference to consider various topics. The Consensus Proposal that emerged

therefrom "call[ed] for each [of the state's utilities] to provide an annual per-plug incentive to

support third party investment in publicly available direct current fast charging stations to

penetration."39
encourage increased electric vehicle

22. On November 23, 2018, the Commission issued a Notice Soliciting Comments on the Consensus

Proposal. The Notice exclusively directed persons wishing to commêñt to consult the Consensus

Proposal itself, which defined incentive-eligible publicly accessible DCFC stations as those

37
July, 2019
Order, n. 14.
38 April
28, 2018 Order, p. 3.
39
Notice Soliciting Commcñts (Novcrsber 23, 2018), p. 1.

9 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

restrictions."®
"having access without site-specific physical access The Coiñmission's Notice

accessible"
sought no comment on a definition of "publicly other than that contained in the

Consensus Proposal. The Commission's Notice failed to provide notice that the Commission

intended to effect a major chañge to its definition of "publicly accessible".

23. Similarly, the Commission's Order Instituting Proceeding, which identified nine topics for

Conference,"
discussion in the Technical sought no commêñt on the Commission's potentially

accessible"
departing from the definition of "publicly that the Coiñmission had itself been using

over the course of the prior five years, which definition was tracked almost verbatim by the

Consensus Proposal Sponsors. Compare, e.g., the Consensus Proposal, p. 9, which stated:

Publicly accessible sites may include sites such as supermarkets, malls, retail outlets, rest stops,
visitor centers, train stations, hotels, restaurants, and parking garages or lots where DCFC
stations are open to the general public and will be used by a wide variety of users[;]

with

the Commission's 2013 Notice of New and Commeñts in Case 13-

May 22, Proceeding Seeking

E-0199, p. 2, which stated:

The availability of Charging Stations is vitally important to iñcreased customer acceptance and
use of [Plug-In Electric Vehicles]. Public Charging Stations may be installed in garages,
parking lots, or next to parking spaces along public streets. The availability of public Charging
Stations at numerous locations will allow customers to charge vehicles while parked overnight

(e.g., at or near residences and hotels), at work, conducting errands, or at shopping, eating and
entertainment venues (e.g., at or near shopping malls, arenas and stadia, or in commercial

entertainment districts).

24. Further, the Commission's August 16, 2018 Notice of Working Group Meeting and Request for

Post-Conference Comments in Case 18-E-0138 identified fourteen topics, none of which hinted

40
Consensus Proposal, p. 9.
4¹
Order EnsEtuting Proceedings, April 24, 2018, pp. 4-5.

10

10 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

availability."42
that the Co111ñ1ission was contemplating a change to the definition of "public To

the contrary, even at that late stage of the Proceeding, the Commission's Notice still limited its

inquiry into physical, not technological, accessibility, as did the Commission's very first notice

Proceeding.0
opening the

25. On February 7, 2019, the Commission issued its Order Establishing Framework for Direct

Current Fast Charging Infrastructure Program which rejected the Consensus Proposal's

Sponsors' - 45.
definition of public accessibility. February, 2019 Order, pp. 43 The Order cited

no comment or record basis for the Commission's rejection of that definition. The Order cited

no analysis or any record evidence showing that changing the definition would spur more private

Sponsors'
sector investiñent in charging station deployment than would the definition The Order

cited no evidence supporting exclusion of Tesla from participation in the incentive program.

26. On February 28, 2019, Tesla filed a Petition for Rehearing, asserting inter alia, that the

Conññission's February Order was unlawful, because it was based on inadequate notice and

opportunity to be heard on changing the definition.

27. On March 27, 2019, pursuant to the State Administrative Procedure Act, a Notice of Proposed

Rulemaking ("SAPA Notice") was published in the State Register setting a deadlhe of May 28,

2019 for submission of commeñt on Tesla's Rehearing Petition. In addition, on March 27, 2019,

the Commission issued a separate public notice (the "Secretary's Notice") that also set May 28,

2019 as the coniiñeñt deadlhe. More than 580 public commeñts were submitted, many by Tesla

42 for Working
Notice and Request Group Meeting and Request for Post-Conference Ceñññcñts, Issued August 16,
2018. This sought coñüñcñ‡ regarding issues discussed at the technical confcrcñce, and invited post-conference
"
commcñts on a discrete set of topics. Question 4 asked for input into the . . . best way for utilities, charging station
providers, and site hosts to work together to locate charging stations where they best meet electric system, castemcr
needs[,]" drivers'
and cenmrañity again referencing only geographic access as being critical to the elimination of
range anxiety, and therefore, EV adoption. (emphasis added).
43 consider"
The April 18, 2018 Order directed Staff "expedifieusly to convene a technical conference to 9 specific
topics, expressly limiting stakeholder input into "lacaticñ considemtions, including customer need, and community
considentions."
April 18, 2018 Order, p. 5 (emph. added).

11

11 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

owners supporting Tesla's Petition who sought to benefit from the same lower charging costs as

would other EV drivers. July, 2019 Order, pp. 8 - 9.

28. Although the Commission held that "Tesla's Petition does not raise any errors of fact or law that

reheariñg,"
hecessitate granting July, 2019 Order, p. 14, the Commission purported to partially

erant Tesla's Petition by modifying its February, 2019 Order, but the Commission did so in the

body of its subsequent order. Thus, in the Commission's July, 2019 Order, the Commission

accessible"
changed its definition of a program-eligible "publicly station from one that utilizes

both CHAdeMO and CCS connectors, to one that uses CCS con-nectors. The Commission ruled

basis,44
that use of CCS will qualify on a standalone while stations using CHAdeMO and Tesla

connectors will qualify only if the station is co-located with a CCS plug capable of providing the

"proprietary" deployed.45
same or greater kW level as the plugs being However, the Commission

made these changes without holding the requested hearing.

29. The July, 2019 Order also rejected Tesla's claim of inadequate notice, stating: "To the extent any

deficiencies may have existed in providing adequate notice of matters under deliberation by the

Commission, they have been cured by the SAPA Notice and Secretary's Notice . . . which formed

Order."
the basis of the action in this July, 2019 Order, p. 15.

30. The Commission's two sleights of hand - its purporting to grant a reheariñg without
[1] holding

"hear"
a re-heariñg; and [2] its purporting to fix its failure to notify the public that it would

accessibility,"
coñinient on the proper definition of "public by instead notifying the public that it

"hear" -
would comment on whether there should be a rehearing on the issue do not cure the

procedural and due process (SAPA) fouls committed by the Commission.

44
Id., n 5.
45 teelmelegy."
Id., p. 5. The Commission's Order no longer considers CHAdeMO to be a "standardized See July,
2019 Order, p. 22.

12

12 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

The Commission's Decisions Were Arbitrary and Caoricicus and Lack Record Supeert

31. Throughout its two Orders, the Commission routinely claims that "[t]he goal of the DCFC

Program Order is to increase the number of publicly accessible chargers to address the range

goals."
anxiety of potential EV drivers, thereby inducing EV sales to meet the State's ZEV See,

e.g., July Order, p. 21 (emph. added).

Commissions'
32. However, the Orders fail to cite to any evidence showing that changing the

available"
definition of "publicly will increase the numbers of chargers.

33. Both the Joint Petitioners and the Consensus Proposal Sponsors sought expressly to include

Tesla's Superchargers in their count of the total needed to achieve the State's numeric target.

Indeed, the Consensus Proposal Sponsors expressly mentioned Tesla by name, as well as other

developers such as Volkswagen and ChargePoint, when noting that the proposed incentive

State."46
programs "are intended to attract . . . [such] developers to New York

34. By contrast, the Commission cites zero analysis that examines the impact that disqualifying Tesla

will have on the State's ability to achieve its numbers target. To the contrary, the Commission

engages only in extra-record speculation, stating: "ratepayer support may not be needed to build

"
new Supercharger stations for Tesla, in the same way it is needed for non-Tesla stations . . . and

that Tesla Superchargers may have sufficient utilization rates to make demand charge rates more

types."
cost effective than stations that service other vehicle July Order, p. 13 (emphasis added).

"needed,"
The Commission also cites zero support for its assumption that ratepayer support is for

example, to build stations for CCS compatible vehicles such as Volkswagen or BMW, but not for

Tesla stations or for stations serving vehicles that utilize the CHAdeMO connector. Moreover,

®
Consensus Proposal, n. 11.

13

13 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

the Commissinn cites zero support for requiring equipment to be co-located with CCS chargers

capable of equal output. Tesla's newest Superchargers and vehicles operate up to 250 kW,

whereas the majority of non-Tesla DCFC-cable vehicles are limited to 50 kW, thus the

Commission's Order requires to Tesla to deploy, or find partners to deploy, charging equipment

that cannot be fully utilized by other vehicles in the market.

35. The Commission essentially concedes that record support for its definitional shift was sparse,

footnote.47
finally pohthg to four sets of coñüñents in a Only two of those seem to advocate for

model,48
the European and neither of the two explain how the European model will leverage and

accêIêrate private investment while prudently investing ratepayer funds, the very purpose of the

proceeding.49

36. Accordingly, the Commission's Orders are arbitrary and capricious, lack record support, and must

be annulled.

The Commission's Discrimin Morv Treatment of Tesla is Unlawful

compact,"
37. It is a bedrock principle underlying the "regulatory pursuant to which the regulator

grants utilities a protected monopoly for the sale and distribution of energy to customers, and

permits them to recover their costs plus a reasonable return on their investment by way of

rates,50
regulator-set that ratepayer monies may not be used to favor any one person or corporation

over another. New York's Public Service Laws also prevent an "electric corporation . . . [from]

mak[ing] or grant[ing] any undue or unresersle preference or advantage to any pers0ñ, [or]

47
July, 2019 Order, n. 23.
48 Greerlets PSC Teclmical Slides (filed July 20, 2018) and Siemens Standsda Slides Panel (filed July 20, 2018)
addressed the desirability of the E=epean model.
49
February, 2019 Order, p. 38.
"
See generally, FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).

14

14 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

corporation . . . , or . . . subject[ing] any particular person, corporation or locality or any

panicular description of service to any undue or unreascitable prejudice or disadvantage

whatsoever."
in any respect NY CLS Pub Ser § 65(3). NY CLS Pub Ser § 65(2) further states

that: "No . . . electric corporation . . . shall directly or indirectly, by any special rate, rebate,

drawback or other device or method, charge, demand, collect or receive from any person or

corporate a greater or less compensation for . . . electricity . . . than it charges, demand, collects

or receivês from any other person or corporation for doing a like and contcmparaileciis

service with respect thereto under the same or substantially similar circumstances or

conditions."
(emphasis added).

38. The Commiccion does not dispute that it is discriminating against Tesla. Rather, the Commission

held that it may discriminate against Tesla, because it is a ratepayer-funded incentive that is at

issue, not an actual rate. See July, 2019 Order, p. 18. Yet, the incentive levels were developed

based on each utility's underlying rate (See Consensus Proposal, p. 6 fn. 19), and the Commission

explicitly ties the program to rates by capping the incentive amount to the customer's delivery

costs for a twelve-month billing period. See February Order, p.37.

39. At bottom, the per-plug incentive is a direct, special rebate that is intended to provide rate relief.

As such, it cannot be applied in a manner that expressly advantages some companies and

disadvantages other companies.

40. The Commission also seeks to justify its discrimination against Tesla by claiming that the

Program is voluntary. See July Order, p. 21. However, the Commission fails to acknowledge the

simple truth that if every developer but Tesla receives a monetary payment, then of course Tesla

(and its customers) will be paying higher rates than will other EV customers

15

15 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

41. The Commission rejects Tesla's claims that the Program Order will subject Tesla to electricity

costs more than double that of other charging service providers, apparently because it believes

Tesla provided no evidence for its assertion. July, 2019 Order, n. 18.

42. The Commiccion errs. On page 11 of its Petition, Tesla offered that an eight charger station in

Rochester Gas and Electric's territory with a peak demand of300 kW that consumes 20,000 kWh

per month will pay nearly 3.5 times more than a non-Tesla station of the same size and usage

profile. The Cominission offered no counter to Tesla's calculus anywhere in its July, 2019 Order.

43. As a matter of law, the appropriate place for vetting such analyses is in a heariñg and on the

record, not in a closed-door scrutiny of a post-hearing, post-decision petition. Tesla sought

rehearing precisely so that stakeholders and the Commission could properly evaluate the impacts

of discrimiñation on Tesla's competitive position, and on the State's ability to achieve its ZEV

and GHG targets.

44. The Commission's Orders were discriminatory and must be annulled.

The Commission Exceeded the Bounds of its Jurisdicti6n

45. In its Declaratory Ruling in Case 13-E-0199, the Commission was clear that "The Public Service

Law does not provide the Commission with jurisdiction over (1) publicly available electric

vehicle charging stations; [and] (2) the owners or operators of such charging stations, so long as

the owners or operator do not otherwise fall within the Public Service Law's definition of 'electric

corporation' "
. . .

46. However, in Case 18-E-0138, the Commission has claimed it is acting within its jurisdictional

bounds in picking winners and losers, because, it claims, it is not seeking to regulate service

16

16 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

station providers, rather it is only seeking to identify those service providers who would qualify

to receive ratepayer-subsidized ineventive funds. July Order, p. 16.

47. It is within the Commission's bounds to regulate how a utility provides electricity to a charging

station owner. It is also within the Commission's bounds to regulate the rate the utility charges

charging station owners for electricity conveyed to them.

48. The Commission oversteps its bounds when it seeks to dictate which technology particular station

owners use to charge electric vehicles. The Commission has no more authority to dictate the type

of connector used to charge EVs than it does to compel the type of dimmer switch a hotel installs

in guest rooms.

CLAIMS

FIRST CAUSE OF ACTION

(Agency Determination in Violation of Lawful Procedure: C.P.L.R.7803(3))

49. Tesla re-alleges and incorporates by references the allegations of all paragraphs above as if fully

set forth herein.

50. Among other legal errors, the Commission failed to notify Tesla and the public that it intended to

availability"
change the definition of "public in use since 2013, in violation of SAPA.

51. Accordingly, the Commission's Orders must be annulled because they were made in violation of

lawful procedure, and affected Petitioner's statutory and due process rights.

17

17 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

SECOND CAUSE OF ACTION

(Agency Determination Was Arbitrary and Capricious and an Abuse of Discretion:

C.P.L.R. § 7803(3))

52. Tesla re-alleges and incorporates by reference the allegations of all paragraphs above as if fully

set forth herein.

53. The Commission acted arbitrarily and capriciously, without record support, and without a rational

availability"
basis, in re-defining the "public criterion so as to exclude Tesla.

54. As a result, the Commission acted arbitrarily and capriciously and its Orders must be annulled.

THIRD CAUSE OF ACTION

(Agency Determination Affected by an Error of Law Due to

Discriminatory Treatment of Tesla: C.P.L.R. § 7803(3))

55. Tesla re-alleges and incorporates by references the allegations of all paragraphs above as if fully

set forth herein.

56. The Commission is misusing ratepayer monies by authorizing their use in a discriminatory

fashion, in violation of NY CLS Pub Ser § 65.

57. As a result, the Commission's Orders must be annulled because they were made in violation of

the law, and are affected by an error of law.

FOURTH CAUSE OF ACTION

(Agency Action Invalid as In Excess of its Jurisdiction: C.P.L.R. § 7803(2))

58. Tesla re-alleges and incorporates by references the allegations of all paragraphs above as if fully

set forth herein.

59. Respondent has inserted itself into the business of regulating electrical charging services,

contrary to its Declaratory Ruling in Case 13-E-0199 and the Public Service Law, which vests

18

18 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

plants"
the Commission with jurisdiction to regulate the sale of electricity from "electric to

Charging Stations, but not to regulate the manner with which charging stations provide charging

stations'
services using the specialized equipment.

60. As a result, the Commission acted in a manner that is in excess of its jurisdiction, and its Orders

are invalid and must be annulled.

FIFTH CAUSE OF ACTION

(Declaratory Relief)

61. Tesla re-alleges and incorporates by reference the allegations of all paragraphs above as if fully

set forth herein.

62. Each legal error described in this Petition independently warrants declaratory relief in favor of

Tesla, heludMg, but not limited to, on the grounds that the Orders are unlawful, that the

Commission acted without jurisdiction in issuing the Orders, that the Coir nission acted

arbitrarily and capriciously, and the Orders are discriniinatory.

63. Tesla is entitled to a declaration that the Orders are void.

PETITIONER IS ENTITLED TO DISCOVERY

64. Tesla seeks expedited discovery, McludMg as to the purported bases upon which the

nissions' Petitioners'
Coir Orders rely, that will support claims based on a violation of

Petitioners'
rights and other claims. Such discovery is warranted to provide Petitioner with

information showing that the Orders are arbitrary and capricious, not supported by substantial

record evidence, designed to favor certain conipanies to the detriment of Petitioner, and likely to

frustrate the State's ability to achieve its energy and climate goals.

19

19 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

WHEREFORE, Petitioner respectfully seeks that this Court:

1. Annull the Orders of the Commission issued on February 7, 2019 and July 12, 2019;

2. Annull and declare that the Orders issued on February 7, 2019 and July 12, 2019

are in violation of lawful procedure, arbitrary and capricious, and an abuse of discretion;

3. Annull and declare that the Orders of the ammi=ian issued on February 2, 2019

and July 12, 2019 violated Petitioner's statutory and due process rights;

4. Annul and declare that the Orders of the Cammi••ion issued on February 7, 2019

and July 12, 2019, because the Commission acted in excess of its jurisdiction;

5. Annul and declare that the Orders of the Commission issued on February 7, 2019

and July 12, 2019 are unlawful because they discriminate against Tesla;

attorneys'
6. Award Petiticñer the costs, disbursements, and fees incurred in

connection with this combined Petition and Complaint; and

7. Award Petitioner such other and further relief as this Court shall deem just, proper,

or equitable.

Dated: Glens Falls, New York

August 2, 2019

BRAYMER LAW, PLLC

By: /ff/)†Î
dia . raymer, Esq.
/
AttorneyforPetitioner
PO Box 2369
Glens Falls New York 12801

(518) 882-3252

20

20 of 21
FILED: ALBANY COUNTY CLERK 08/02/2019 04:25 PM INDEX NO. 904877-19
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/02/2019

21 of 21