UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
|
Carolina Power & Light Company Duke Energy Corporation South Carolina Electric & Gas Company GridSouth Transco, L.L.C. |
MOTION OF THE
AMERICAN PUBLIC POWER ASSOCIATION,
CENTRAL ELECTRIC POWER COOPERATIVE,
INC.,
ELECTRICITIES OF NORTH CAROLINA,
INC.,
ELECTRICITY CONSUMERS RESOURCE COUNCIL,
ENRON POWER MARKETING, INC.,
NEW HORIZON ELECTRIC COOPERATIVE,
INC.,
NORTH CAROLINA ELECTRIC MEMBERSHIP CORPORATION,
CITY OF ORANGEBURG, SOUTH CAROLINA,
PIEDMONT MUNICIPAL POWER AGENCY, AND
CITY OF SENECA, SOUTH CAROLINA
FOR COMMISSION ACCEPTANCE OF THEIR JOINT RESPONSE
TO THE “ANSWER OF THE GRIDSOUTH FORMING UTILITIES
TO
MOTION TO HOLD FILING IN ABEYANCE”
Pursuant to Rule 212 of the Commission’s Rules of Practice and Procedure (18 C.F.R. § 385.212), the American Public Power Association, Central Electric Power Cooperative, Inc., ElectriCities of North Carolina, Inc., the Electricity Consumers Resource Council, Enron Power Marketing, Inc., New Horizon Electric Cooperative, Inc., North Carolina Electric Membership Corporation, the City of Orangeburg, South Carolina, Piedmont Municipal Power Agency, and the City of Seneca, South Carolina (together, “Joint Movants”), file this joint motion requesting the Commission accept their response to the “Answer of the GridSouth Forming Utilities To Motion To Hold Filing In Abeyance” (“Answer”) filed in the above noted docket on December 6, 2000. In support of their motion and response, the Joint Movants state as follows.
On October 16, 2000, in compliance with 18 C.F.R. § 35.34(c) and pursuant to Sections 203 and 205 of the Federal Power Act (“FPA”), Carolina Power & Light Company, Duke Energy Corporation and South Carolina Electric & Gas Company (“Applicants”) jointly submitted their request for authorization and approval to establish GridSouth Transco, L.L.C. (“GridSouth”) as a regional transmission organization (“RTO”). In their filing, Applicants seek Commission approval of the core contractual documents required to form their proposed RTO, including the GridSouth L.L.C. Agreement and the Transmission Operating Agreement.
On November 17, 2000, the Joint Movants filed a motion (“Joint Motion”) requesting the Commission to: (1) specify the respects in which the GridSouth proposal falls short of the minimum characteristics and functions for regional transmission organizations as set forth in Order Nos. 2000 and 2000-A; (2) hold the GridSouth filing in abeyance; and (3) require the Applicants to commence fully collaborative negotiations to prepare a revised filing with the parties to this proceeding and all other parties interested in the formation of a fully-functioning RTO for the Southeast, under the auspices of a settlement judge if necessary.
On December 6, 2000, the Applicants filed their “Answer” responding to the Joint Motion. The Applicants claim that the stakeholder process that preceded the filing of their RTO proposal was “proper and meaningful,” and that complaining stakeholders (presumably including the Joint Movants) either did not participate in that process or took issue with aspects of the GridSouth proposal that the Applicants view as consistent with Order No. 2000. Nevertheless, the Applicants state that, having reviewed the numerous protests of their RTO filing, they “have concluded that additional stakeholder sessions could be helpful.” They warn, however, that for the Applicants to be able to place GridSouth into operation by December 15, 2001, “those sessions must be completed promptly and a process must be in place to rule on the GridSouth application shortly after the additional stakeholder meetings are held.” Answer at 3. The Applicants propose that additional stakeholder meetings be held over a period limited to 60 days, and that such discussions be facilitated by the Commission’s Dispute Resolution Service. At the end of this process, the Applicants would make a further filing to reflect agreed-upon modifications to their proposal, and stakeholders would have 15 days to respond to that proposal. Id. at 4.
In their Answer, the Applicants also complain that “the kind of stakeholder process that the Intervenors apparently desire is not conducive to fruitful negotiations” because “the stakeholders have never agreed that they would withdraw complaints on some issues in order to obtain a favorable resolution of others.” They argue that “what is proposed is a ‘heads I win, tails you lose’ proposition rather than a truly collaborative process,” and that “this posture removes the incentive for negotiations and tilts the process inexorably against the filing companies, who are expected to compromise without any reciprocal commitment from the other parties.” The Applicants contrast what they portray as the intervenors’ intransigence with the compromises they themselves made during their own internal negotiations to formulate the GridSouth filing. Id. at 7. Of course, there is no way to verify the accuracy of the Applicants’ characterization of that process, since their internal discussions were conducted entirely behind closed doors.
The Joint Movants recognize that Rule 213(a)(2) does not generally permit answers to an answer to a motion. 18 C.F.R. § 385.213(a)(2). Nontheless, they move the Commission to accept this Response, because they believe it would aid the Commission to have the benefit of the Joint Movants’ thinking on the proposal for further meetings that the Applicants have made for the first time in their Answer.
The Joint Movants agree that additional procedures are required in this case. They do not, however, believe that further meetings with the Applicants would be fruitful unless and until the Commission provides clear policy guidance to both the Applicants and the intervenors on whether the GridSouth proposal as filed on October 16, 2000 complies with Order No. 2000. The Applicants and the other parties are currently very far apart in their thinking, as the pleadings make clear. The GridSouth Applicants claim that many of the issues the protestors (including certain of the Joint Movants) have raised are simply “disagreements with fundamental policy decisions that the Commission already has endorsed.” Answer at 5.[1] The protestors, on the other hand, believe that the Applicants have fundamentally misapprehended the basic characteristics and functions of RTOs set out in Order No. 2000, including the independence and geographic scope characteristics. Thus, they perceive the GridSouth RTO proposal on the table as clearly
deficient. All of the parties therefore need to have the Commission provide a “reality check” on their own respective views before they commit substantial resources to further meetings.
The Joint Movants also object to the Applicants’
characterization of the proposal set out in the Joint Movants’ original motion
as a “heads I win, tails you lose” proposition.
Answer at 7. The Joint Movants
again see things from a different perspective. They have already attended five
meetings convened by the Applicants where they were asked to provide their
comments and input, only to see very little of it incorporated in the resulting
filing. In the Joint Movants’ view, the
Applicants used their “power of the pen” to ensure that the GridSouth filing
conforms to the Applicants’ strategic plans and interests, rather than to the
letter or spirit of Order No. 2000. In
the absence of clear Commission guidance on Order No. 2000’s application to the
instant filing, the Joint Movants believe that the Applicants will not be
inclined to make any concessions on issues important to the stakeholders. The Applicants are proposing “limited”
discussions for a 60-day period, while at the same time casting the
stakeholders in advance of the
negotiations as seeking to “tilt the process inexorably against the filing
companies.” Answer at 7. While the Joint Movants vigorously disagree
with the GridSouth Applicants’ characterization of their actions, Joint Movants
do agree with the GridSouth Applicants’ conclusion that it “is not possible to
hold fruitful stakeholder negotiations under these circumstances.” Id. The Commission needs to provide policy guidance if the current
“circumstances” are to change.
The Applicants cite the need for expedition as a reason to limit the scope and time period for negotiations. They state that if substantial changes are to be made to the GridSouth RTO proposal as filed, “there is virtually no possibility that GridSouth can be up and running by December 15, 2001.” Answer at 2. The regional stakeholders, for their part, have a very strong interest in seeing an RTO implemented for the Carolinas as soon as possible. They, not the Applicants, are the ones attempting to do business as third parties on the Applicants’ systems in a highly imperfect wholesale transmission environment. But the Joint Movants do not think that implementation of the GridSouth RTO as currently proposed would support a viable wholesale generation market in the Carolinas. Rather, it would likely only reinforce the three Applicants’ generation market power in the region. Hence, the Joint Movants would rather see a better RTO implemented in as timely a fashion as possible than a deeply flawed RTO implemented on December 15, 2001.
Finally, while the Joint Movants approve of the mission and work of the Commission’s Dispute Resolution Service (“DRS”) Staff, they do not believe that DRS intervention at this stage of the proceedings would best use that Service’s limited resources. As the Joint Movants understand it, the DRS is not in a position to provide substantive policy guidance to the parties on what the Commission would or would not accept in the way of an RTO for the Carolinas. What the parties badly need is just that—timely and authoritative rulings from the Commission on whether the GridSouth RTO as currently proposed does or does not comport with Order No. 2000.
WHEREFORE, the Joint Movants respectfully request the Commission to: (1) accept the instant response for filing and consideration; (2) provide timely guidance to the Applicants regarding the respects in which their filing falls short of Order No. 2000’s requirements; (3) hold the filing in abeyance; (4) require the Applicants to commence meaningful collaborative discussions with the parties to this proceeding and other interested stakeholders in the Southeast to develop a successor RTO proposal, after the Commission has provided guidance; and (5) require the parties to the discussions to report periodically to a Settlement Judge to be appointed by the Commission on their progress and, if necessary, empower the Settlement Judge to take charge of the collaborative process.
Respectfully Submitted,
ELECTRICITIES OF NORTH CAROLINA, INC.
ELECTRICITY CONSUMERS RESOURCE COUNCIL
ENRON POWER
MARKETING, INC.
NEW HORIZON ELECTRIC COOPERATIVE, INC.
NORTH CAROLINA ELECTRIC MEMBERSHIP CORPORATION
CITY OF ORANGEBURG, NORTH CAROLINA
PIEDMONT MUNICIPAL POWER AGENCY
CITY OF SENECA, SOUTH CAROLINA
By:
___________________________________
Allen Mosher, Director of Policy Analysis
American Public Power Association
2301 M Street, N.W., Third Floor
Washington, D.C. 20037-1484
Representing the American Public Power Association
___________________________________
Sean T. Beeny
Miller, Balis & O'Neil, P.C.
1140 19th Street, N.W., Suite 700
Washington, D.C. 20036
Arthur G. Fusco
Central Electric Power Cooperative, Inc.
Post Office Box 1455
Columbia, SC 29202
Counsel for Central Electric Power Cooperative, Inc.
_________________________________
Gary J. Newell
Spiegel & McDiarmid
1350 New York Avenue, N.W.
Suite 1100
Washington, D.C. 20005-4798
Counsel for ElectriCities of North Carolina, Inc.
____________________________________
Sara D. Schotland
Cleary Gottlieb Steen & Hamilton
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1801
Counsel for Electricity Consumers Resource Council
____________________________________
Joseph R. Hartsoe
Sarah G. Novosel
Enron Power Marketing, Inc.
1775 I Street, N.W., Suite 800
Washington, D.C. 20006-2401
Counsel for Enron Power Marketing, Inc.
____________________________________
Glen L. Ortman
Verner Liipfert Bernhard McPherson & Hand
901 15th Street, N.W.
Washington, D.C. 20005
Counsel for New Horizon Electric Cooperative, Inc.
____________________________________
Susan N. Kelly
Miller, Balis & O'Neil, P.C.
1140 19th Street, N.W., Suite 700
Washington, D.C. 20036
Thomas K. Austin
Associate General Counsel
North Carolina Electric Membership Corporation
3400 Sumner Boulevard
Raleigh, NC 27616
Counsel for North Carolina Electric Membership Corporation
_________________________________
James N. Horwood
Spiegel & McDiarmid
1350 New York Avenue, N.W.
Suite 1100
Washington, D.C. 20005-4798
Counsel for the Cities of Orangeburg and Seneca, South Carolina
_________________________________
Gary J. Newell
Spiegel & McDiarmid
1350 New York Avenue, N.W.
Suite 1100
Washington, D.C. 20005-4798
Counsel for Piedmont Municipal Power Agency
December 19, 2000
CERTIFICATE OF SERVICE
I hereby certify that I have this 19th day of December, 2000, served the foregoing document upon all parties shown on the Commission’s official service list in Docket No. RT01-74-000 by depositing copies in the United States mail, first class postage prepaid.
By__________________________
Susan N. Kelly Miller, Balis & O'Neil, P.C.
1140 19th Street, N.W., Suite 700
Washington, D.C. 20036-6602
202-296-2960
[1] Of course, one of the “fundamental policy decisions” that the Commission endorsed in Order No. 2000 was the need for fully collaborative discussions to develop RTO proposals. Order No. 2000, 65 Fed. Reg. at 945. Rather than merely disagreeing with this particular Commission policy decision, the Applicants affirmatively chose not to adhere to it.