By Tom Kleckner

The Public Utility Commission of Texas last week agreed to take up SPP and Southwestern Public Service’s joint request to determine whether Texas law includes a right of first refusal that overrides FERC Order 1000.

SPP and SPS filed a petition in February asking the commission to consider whether the RTO can designate entities other than the incumbent utility to construct and own regionally funded transmission facilities in Texas outside the ERCOT service area. (See SPS, SPP Ask Texas to Rule on Transmission Competition.)

The commissioners briefly debated sending the matter to the State Office of Administrative Hearings, which manages contested cases and conducts hearings for other state agencies, before agreeing to hear the case instead.

“I think this issue is squarely in front of the commission,” PUC Chair Donna Nelson said. “I think the commission needs to weigh in on this issue, and I think this is the appropriate venue to decide that.”

Commissioner Ken Anderson agreed, saying the docket (46901) is “going to be a pure question of law.”

Anderson also proposed suspending the procedural schedule and setting a revised timetable for filing briefs and replies. Staff is also preparing a preliminary order.

“I think the various proposed list of issues for the parties were a bit broad in some areas,” Anderson said. “I think the parties would benefit from us not only laying out exactly what the issue is before us but laying out the issues we’re not going to decide — one of which is rights under Order 1000 at FERC.”

SPS contends that the state’s Public Utility Regulatory Act (PURA) allows it, as the incumbent utility operating outside ERCOT, the ROFR to build in the service area prescribed by the PUC. That would prevent a potential competitive project under Order 1000.

The project in question, the 345-kV Potter-Tolk transmission line in the Texas Panhandle, was pulled from SPP’s 10-year planning assessment last month. SPP’s Board of Directors has directed staff to conduct a congestion study in the area, due by April 2018. (See SPP Board Cancels Panhandle Line, Seeks New Congestion Study.)

PUC staff said the project’s deferral meant the joint petition was “no longer ripe for consideration” and recommended dismissing a declaratory order.

SPP and SPS responded with another joint filing May 2, saying the RTO’s decision to pull the Potter-Tolk project “has not rendered this action moot.”

“Parties still need guidance on an important issue of Texas utility law, and dismissal of this docket would simply transfer the responsibility for providing that guidance from the commission to a federal district court,” SPP and SPS said. The commission was more experienced in “construing and implementing” PURA than a court, they said.

SPS filed a lawsuit in a state district court in January, seeking approval to build the project and an injunction prohibiting SPP from issuing a notification-to-construct. The two parties agreed to suspend the proceeding to give the PUC an opportunity to decide how to interpret PURA.

PUC Approves CCN for Entergy Line

The PUC awarded a certificate of convenience and necessity to Entergy Texas (ETI) for a 23-mile, 230-kV transmission line near Beaumont, Texas. ETI was last month able to reach an unopposed agreement with all parties for the project, which is expected to cost $66.8 million (46248).

“This is an example of a transmission line, the process being done very well,” Anderson said, noting “what amounts to unanimous agreement from all the landowners.”

The commissioners also extended their time before ruling on a rehearing request from Southern Cross Transmission in its effort to build an HVDC transmission line capable of carrying more than 2 GW of electricity from Texas to Southeast markets (Docket 45624).

All three commissioners were unpersuaded by Southern Cross’ arguments, but Anderson said he was leaning to grant its rehearing request. He said he plans to file a memo in the docket to “strengthen the order.”

A Teary Farewell to Nelson

The meeting was Nelson’s last after almost 21 years with the PUC, after announcing in April that she would be stepping aside. Nelson has been on the commission since 2008 and was named chairman in 2011. (See Texas PUC Chair Nelson Stepping Down.)

Nelson received several rounds of applause from the room, and she choked up when trying to thank those around her.

“Seriously, I’m just sick. That’s why I’m so teary. It’s not because I’m sad,” she said.

Nelson thanked her fellow commissioners, the PUC staff, the legal counsel that “practices in front of us” and the court reporters in what has become her home away from home.

“The PUC is really my family,” she said. “I’m not sure where my future will take me other than a long vacation for several months.”

Ironically, the meeting was Nelson’s first since her official portrait was mounted in the hearing room.

Nelson’s last day on the PUC will be May 15. Texas Gov. Greg Abbott will nominate her successor, but he has given no indication of a timetable. The state legislature is in its last month, which could be delaying any announcement.

Commissioner Brandy Marty Marquez will fill in for Nelson on SPP’s Regional State Committee and any other interactions with the RTO.