A Legal Right to Air Conditioning?

by Mat Wadsworth

A small Pinal County, Arizona utility company made headlines this week for its August 31st decision to disconnect power to 96 homes. Electrical District No. 3 spokesman Bill Stacys position is that customers need to pay their bills or their power will be turned off. According to Stacy, disconnects for nonpayment “average several hundred disconnects per month.”

The company’s position makes some sense at first glance. They are running a business, not a charity. People who do not pay for their services are not entitled to services. It is not free for the company to produce electricity, so it is only fair to the paying customers that they do not have to pay higher rates to cover dead beats. It’s simple, pay your bills or you don’t get power.

Of course the human side of the situation is a bit more complex. August, 2011 tied for the hottest month on record in Phoenix, with an average high temperature of 109 degrees. With a record setting 13 days hotter than 110 degrees and a record setting average low temperature of 87.5, the air temperature in Phoenix stayed above 80 degrees for the entire month, even at night.

To put that in more real terms, at least two people in Arizona have died from the extreme heat in the last few weeks. Firefighters found a 70 year old woman in her home in Surprise on August 24th. The AC repairman who had been at her house the night before offered to put the woman up in a hotel and several neighbors offered to let her stay over with them, but the woman refused. By the time firefighters responded the air temperature inside her home was 107 degrees. Just three days later, police cited heat in the death of a 70 year old Glendaleman. His air conditioner was blowing hot air and temperatures inside his home were over 100 degrees.

The recession, extreme weather, and increased utility rates have created a situation in which more and more people are having trouble paying their bills on time. Given the extreme heat in Phoenix people are literally risking death to not run the air conditioner sufficiently. Then, they risk death if they are unable to pay the power bill.

Given this harsh reality, the Arizona Corporation Commission, which regulates most utilities in the state, prohibits disconnecting power when the weather is in the triple digits. Similarly, SRP, one of the big power companies in Phoenix, has a policy of not completely disconnecting power for nonpayment of bills. Instead, SRP installs a load regulator on homes which leaves customers with enough power to keep the refrigerator and a few lights running until the bill gets paid. Unfortunately for customers in Maricopa, Electrical District No. 3 is not regulated by the ACC.

Among those with their power disconnected last week was 76 year old Barbara Young who could not pay her $300 power bill on her fixed income. When temperatures in her house reached 90 degrees she worried that the food in her refrigerator would spoil, and she contacted her ex-husband for assistance. After fees she ended up paying $530 to get her power turned back on.

Young’s power company effectively held a gun to her head and told her to find a way to pay her bill or risk death on a 110 degree day without air conditioning. What’s the company’s explanation for these coercive tactics? Spokesman Bill Stacy actually had the audacity to cite the company’s “fiduciary responsibility.”

I assume the other utilities in the state also have fiduciary responsibilities, but for the most part they have chosen to suspend power disconnections until the extreme weather passes. No one is asking any company to give any customer a free ride, just to wait out the extreme heat before risking anyone’s life by disconnecting their power. A power company can wait a few weeks for its $300l, Ms. Young cannot wait a few weeks in the Phoenix summer to get her air conditioning.

The dramatic aspect to this situation leads to the question, do we have a constitutional right to power in extreme weather?

The likely answer is no. After all, we don’t have any constitutional right to healthcare, housing, food, etc. Millions of people in the US are homeless, hungry, and/or without proper access to health care. Unfortunately, we simply do not have any constitutional rights to life in this country. Therefore, it seems unlikely that we have a constitutional right to electricity, no matter how extreme the power.

However, we do have a constitutional right to due process. The US Supreme Court has held that there is a property interest in continued utility service.[1]  An argument could be made that by sending only one notice by regular mail and only giving customers 40 days, Electrical District No. 3 denied residents sufficient due process under the 14th amendment to the US constitution. A process server, certified mail, or even just having the meter reader knock on residents’ doors would be relatively inexpensive steps much more likely to inform the resident of the consequences of continued delinquency. Similarly, an argument could be made that it simply violates due process to be threatening someone’s utilities during extreme weather because of the coercive nature of the discussion. If the weather is so extreme to be risking death, the resident has no opportunity to make a reasoned decision about what alternatives they have available to them.

Finally, the Arizona legislature could simply pass a statute prohibiting power disconnects during extreme weather. Other states have passed statutes preventing or delaying disconnections during times of extreme weather.[2]  The Arizona legislature needs to pass a statute prohibiting the disconnection of utilities during periods of extreme weather. For example, if the temperature has been higher than 110 degrees or lower than 32 degrees in any of the last ten days, a utility company may not disconnect power from a residence for non-payment of bills. Similarly, a utility company is required to give a resident at least 15 days notice by process server or certified mail before disconnecting power.

Obviously, the power companies cannot be trusted to regulate themselves in this area. The courts and legislature need to step in.

[1] See Memphis Light, Gas and Water Division v. Willie S. Craft, 98 S.Ct. 1554, 1558 (1978).
[2] See Mich. Comp. Laws Ann. § 400.1207(2)(b) (West 2010) (low-income heating shut-off prevention program).

9 thoughts on “A Legal Right to Air Conditioning?

  1. Great article Matt. Only one comment.

    No disrespect for the old ladies of the world, but my understanding is that the (usually subsidized and offering services at below market rates) public utilities are treated with a great degree of deference. I am not very familiar with this area, but I do remember the section 366 of the bankruptcy code that states that the utility providers may not refuse service unless a bond is not provided within 20 days after proceedings begin. And that’s federal policy for all forms of the indigent and unfortunate.

    Maybe that’s her answer. File a petition, get at least a 20 day stay, and wait out the heat wave.

  2. Excellent issue. I am struck by the irony that she has a Constitutional right to wield a revolver but not to survive a heatwave.

  3. Great article Mat.
    Questions? Were there any children in the homes where the utility company turned off the power? If so, who would be held liable if one of those children were to be unduly affected by the lack of air conditioning? Obviously, the children are not the “deadbeats”. Would the parents be subject to prosecution for child endangerment because they fell behind on their utility bills? Is there no responsibility on the part of the utility company to ensure that there is no collateral damage for their actions?
    One more comment-you stated that “unfortunately, we simply do not have any constitutional rights to life in this country; however, is not the Declaration of Independence the foundation upon which the Constitution stands? And does not the Declaration of Independence include the statement that: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness?

  4. Well done, Mat.

    I’d like to know if the utility has offered a way for customers to “even out” their electric bills by averaging them over the course of 12 months — that tends to avoid the extreme peaks and valleys usually related to hottest part of the summer or coldest month of the winter.

  5. I think that the most the legislature could do is create notice requirements and an appeals process. Hopefully, bad press is enough to get a company to do something else. Is that too hopeful?

  6. I’m sure you’re not offering that as a general solution for most people Ismail, but I’m pretty skeptical of any laws that require the indigent to jump through confusing procedural hoops to get essential services. Still, it’s a solution that could work for those of us who would attempt to help individuals going through it.

    I like the load regulator solution. The problem with electricity in general is that it is preferable for people to use little and not be wasteful, and the best way to do that is with the current system of paying per kilowatt-hour. But we do need to have some way of preventing people from losing all their food and dying in a heatwave because they can’t pay their bills.

  7. Is the power company liable if they disconnect service and the person dies? I like your idea of a state law prohibiting power disconnects during extreme weather. That sounds like a sensible solution!

  8. What about a cab refusing to stop for someone to get a bottle of water when the heat is in the tripple digits! The insuranse blames the cab company and the cab company blames the insurance company but the end result is the same…no bottle of water!

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