Page 1412 – RTO Insider

August 1, 2016

Massachusetts Bill Boosts Offshore Wind, Canadian Hydro

By William Opalka and Rich Heidorn Jr.

With only hours to go at the end of its session, the Massachusetts legislature Sunday night passed a major energy bill that boosts Canadian hydropower and offshore wind as sources to meet the state’s clean energy goals.

Legislative negotiators worked through the weekend to reconcile House and Senate bills that differed over the volume of offshore wind, the inclusion of the Cape Wind project and support for new gas pipelines.

The final bill (H.4568) requires utilities to annually obtain 9,450 GWh of energy that qualifies for the state renewable portfolio standard, including onshore wind and Canadian hydropower.

It also orders procurement of 1,600 MW of offshore wind by 2027 — a compromise between the House’s 1,200 MW and the Senate’s 2,000 MW. It excludes Cape Wind, which the Senate would have included, because it has not won a competitive lease auction from the federal government.

First Mover

In January 2015, the U.S. Bureau of Ocean Energy Management awarded offshore leases to RES America Developments (lease area OCS-A 0500 for 187,523 acres) and Offshore MW (lease area OCS-A 0501 for 166,886 acres) in the Massachusetts Wind Energy Area, which starts about 12 nautical miles offshore. Last June, BOEM approved the assignment of RES America’s lease to DONG Energy Massachusetts.

DONG Energy platform (Dong Energy) - canadian hydro hydropower — *Source: Dong Energy*

BOEM said the area leased could support approximately 2 GW of wind generation.

Thomas Brostrøm, general manager of North America for DONG Energy Wind Power, said the legislation “will allow the creation of a viable offshore wind energy industry here in Massachusetts.”

The company said it plans to install capacity of up to 1 GW in the form of what it is calling Bay State Wind, a project it said will create 1,000 new jobs in Massachusetts during construction and approximately 100 new jobs to support the wind farm during its life.

“With world-class wind speeds and ideal water depths of between 130-165 feet, Massachusetts will be able to garner the economic benefits and supply chain development of being the first mover to site utility-scale offshore wind energy on the East Coast of the United States,” the company said.

DONG Energy, based in Denmark, operates 19 offshore wind projects totaling more than 3 GW with another 3 GW under construction.

Offshore MW, which is partnering with the nonprofit Vineyard Power Cooperative on its project, could not be reached for comment.

Other Provisions

In addition to jumpstarting offshore wind, the Massachusetts bill:

Promotes energy storage, authorizing the Department of Energy Resources to develop procurement targets and incentives for utilities, households and businesses;
Requires utilities to fix their most serious gas leaks; and
Expands energy efficiency and clean energy financing options for commercial customers under the Property Assessed Clean Energy program.

Lawmakers rejected the Senate’s proposed increase in the RPS, incentives for electric vehicle adoption and a prohibition of the so-called “pipeline tax,” which would allow electric distribution companies to assess ratepayers for construction of the extra capacity needed by natural gas pipeline owners to supply power plants.

Power plant owners and marketers oppose the policy, but state officials say the capacity is needed to mitigate price spikes caused by tight supplies.

The state Department of Public Utilities has already determined that such supply contracts are allowed under existing state law. An LNG supplier and an environmental group, supported by the Massachusetts attorney general, have challenged that interpretation. A ruling is expected soon from the state’s Supreme Judicial Court. (See More Pipelines for New England: ‘Gold-plating’ or Necessity?)

The energy legislation was one of several bills that required last-minute action at the Capitol before the July 31 deadline, after the legislative calendar was cleared for the Republican and Democratic national conventions.

Both houses had agreed that Massachusetts needed to significantly increase the amount of clean energy used to comply with its Global Warming Solutions Act, passed in 2008. Nuclear and coal-fired generation have been closing in recent years, and ISO-NE says the region is facing tight energy supplies. (See Massachusetts Clean Power Bill Hit from All Sides.)

Gov. Charlie Baker, a Republican, had opposed the Senate’s inclusion of Cape Wind and the “pipeline tax” prohibition. The governor issued a statement Monday thanking lawmakers for completing the energy bill and other legislation before the deadline.

“As our administration carefully reviews all of the legislation that lawmakers worked diligently to reach consensus on, I will continue to work across the aisle with our partners in the legislature to make Massachusetts a better place,” Baker said.

Enviros Supportive; Generators Dismayed

The New England Power Generators Association criticized the bill, saying it would “dramatically increase costs for consumers and undermine billions of dollars in energy investments” in the state.

“This energy bill represents the single biggest step away from a competitive electricity market ever taken in New England,” NEPGA President Dan Dolan said. “Power plant owners in Massachusetts will now be barred from competing for nearly 60% of the commonwealth’s electricity market. Instead, consumers will be forced to pay for huge amounts of power at above-market prices, eliminating opportunities for innovation and cost containment.”

Members of the Alliance for Clean Energy Solutions, a coalition of clean energy companies, environmentalists and consumer representatives, had a different perspective.

“This bill is a huge step on the path to a clean energy future,” said Peter Shattuck, Massachusetts director of the Acadia Center. “The legislation solidifies the commonwealth’s leadership in reducing carbon pollution and will help reduce our growing over-reliance on natural gas.”

Ocean-Turbines-(Dong-Energy) — *Source: Dong Energy*

Janet Gail Besser, executive vice president of the Northeast Clean Energy Council, said the bill “will not only accelerate the deployment of clean energy, but will also serve to accelerate our economy by providing a stable policy framework for investors and developers of clean energy.”

Emily Norton, director of the Sierra Club’s Massachusetts chapter, praised the legislature for its boost to offshore wind and “for forcing utilities to fix methane leaks that are warming our planet, killing trees, jeopardizing safety and wasting consumer dollars.”

“However the bill does not go far enough in terms of transitioning us to a clean energy economy and a transportation sector powered by clean electricity rather than petroleum,” she continued. “It is also very disappointing … in spite of a unanimous Senate vote to prohibit a pipeline tax, to see that language missing from the final version. We look forward to making further gains toward climate justice in the next legislative session.”

July 29, 2016

FirstEnergy Posts $1.1B Loss, Eyes Exit from Merchant Generation

By Ted Caddell

FirstEnergy on Friday posted a $1.1 billion second-quarter loss, much of it related to the pending closure of five coal-fired units, and CEO Chuck Jones said the company will not make any large investments to prop up its merchant generation business credit rating.

“We do not see baseload generation as a good fit for our company,” Jones said during a call with analysts on Friday. The company will not rule out “the possible sale or deactivation” of additional units as wholesale energy prices continue to languish, he said.

The losses make the outcome of the company’s two-year struggle with the Public Utilities Commission of Ohio to garner guaranteed income for its generators that much more critical.

FirstEnergy has 1,360 employees at its Akron, Ohio headquarters. The company says its total economic impact is $568 million annually in the state. *Photo Source: Wikipedia*

On July 25, it filed testimony with PUCO saying that a staff-recommended plan for a Distribution Modernization Rider of $131 million a year for three years wouldn’t be enough to provide credit support to the company so it can maintain its investment-grade credit rating and begin grid modernization initiatives (14-1297-EL-SSO). (See PUCO Staff Recommends $131M Annual Rider for FirstEnergy.)

It also balked at staff’s recommendation that the company be required to refund the subsidy if it moves from its Akron headquarters.

FirstEnergy has proposed a Retail Rate Stability rider that would provide it $558 million a year for eight years for credit support. Eileen Mikkelsen, vice president of rates and regulatory affairs, said the rider should be increased by an amount reflecting the economic development value of maintaining its headquarters in Akron.

In testimony filed July 22, Sarah Murley, an economic consultant hired by the company, said the headquarters has an annual economic impact of $568 million on Ohio’s economy, based on the 1,360 employees there (an annual payroll of $151.3 million) and its support of an additional 2,047 jobs ($93.3 million in annual payroll) by other businesses throughout Ohio.

Critics said the RRS rider and the economics benefits adder FirstEnergy is seeking could result in more than $8 billion in ratepayer-funded subsidies if they lasted the full eight years.

Shannon Fisk, an attorney with Earthjustice, said the annual price tag could be as high as $1.126 billion, if PUCO grants the $558 million RRS rider and the $568 million the company claims as the economic development value of its operations.

“FirstEnergy is proposing that the DMR would last through May 31, 2024, almost eight years, so the total amount of captive customer money provided under FirstEnergy’s proposal would be somewhere between $4 billion and more than $8 billion,” Fisk said.

Generation Business Driving Losses

FirstEnergy’s $1.1 billion loss represents $2.56/share on revenue of $3.4 billion. That compares with net income of $187 million, or 44 cents/share, during the same period last year.

In a news release, the company attributed the loss primarily to “asset impairment and plant exit costs in the company’s competitive business,” a reference to its recently announced plan to sell or close its Bay Shore plant near Toledo and retire four coal-fired units at its W.H. Sammis plant on the Ohio River. (See FirstEnergy Closing Largest Coal Plant in Ohio; Bay Shore also in Peril.)

It is with its eye on the corporation’s credit rating that Jones said the company will be looking to concentrate on its regulated businesses and begin to look for ways to exit the merchant generation business in the coming years.

“Our long-term goal is to operate as a fully regulated company,” he said. To illustrate its concentration on driving down generation costs, the company announced it was postponing by three years the expensive steam generator and reactor pressure head replacement at its Beaver Valley nuclear station in Pennsylvania, “and we’ve already identified $80 million in fossil fleet savings” annually going forward, he said.

Success Hinges on PUCO

Earlier in its negotiations with PUCO, the company proposed a 15-year period of guaranteed income for its struggling merchant plants. When that was denied, it came back with an eight-year plan, which was approved by PUCO but eventually jettisoned when FERC ruled that it would need to undergo federal review under the Edgar affiliate abuse test.

FirstEnergy withdrew its request and filed a modified request with PUCO that was not tied to any specific generation assets, with the understanding that it would not need FERC review. Critics have charged that it could cost customers between $3.6 billion and $4 billion.

The latest rider request would be an alternative to that plan.

In testimony, the company warned that it could receive a credit downgrade without the increase in revenue. Their latest rider plans, Mikkelsen said, would provide a “more reliable hedge against increasing market prices by using proxy costs and generation capacity and output for diverse generation in the marketplace without reference to any particular generating facilities.”

“By ‘priming the pump,’ the companies will be able to obtain lower financing costs when grid modernization spending begins, resulting in lower rates for customers,” she said.

Although the rider would be, in part, to fund grid modernization projects, she said the company should be able to collect it before that work commences.

Jones said during the analyst call that the company expects a ruling from PUCO by September. He declined to say what they would do if PUCO rules against the company.

“When we know that outcome, we will let you know what the impact is on our credit ratings,” he said. “We have a number of other strategic options we can execute, but it is premature to speculate.

“We are focused on keeping our investment-grade rating of our holding company and the rest of our regulated entities,” he said. He said there would be no large infusions of capital in the merchant business in any attempt to shore up its sagging credit rating.

Another company facing the same economic pressures relating to low wholesale prices, American Electric Power, has said it will devote its energies to “reregulating” the energy market in Ohio. Jones said he is “pulling for” AEP’s efforts, but “at this point in time, we are not actively joining in with them.”

Critics Blast Rider Plans

To FirstEnergy critics, the new testimony is hard to swallow.

“FirstEnergy’s recent testimony asks the PUCO to reject the staff’s criticism of — and embrace — its proposal for a ‘virtual PPA,’ in which the utility’s distribution subsidiary would receive what the Ohio Consumers’ Counsel estimates would be some $4 billion over eight years,” said Dick Munson of the Environmental Defense Fund.

“FirstEnergy’s level of greed is laughable, if it were not so seriously expensive for Ohio consumers … and should be completely rejected,” he said.

“The customers should not be providing credit support, and without serious restrictions, there is nothing to ensure it will not be just the same type of bailout” it already failed to get, Earthjustice’s Fisk said.

July 29, 2016

NextEra Reaches Deal for Oncor

By Rory D. Sweeney

NextEra Energy announced Friday morning that it had reached an agreement to buy cash-strapped Energy Future Holdings’ profitable Oncor assets in a deal that values the Texas transmission and delivery subsidiary at $18.4 billion.

The sale, along with a favorable tax decision also announced Friday, would move EFH closer to an exit from its Chapter 11 bankruptcy, which it declared in April 2014.

The deal for Oncor — Texas’ largest utility, with 119,000 miles of distribution and transmission lines and more than 3 million meters — also bolsters NextEra’s position as a player in the Texas energy market. It has been involved in Texas since 1999 through transmission provider Lone Star Transmission.

nextera, oncor — Location of NextEra generation *Source: NextEra*

NextEra CEO Jim Robo said he plans to continue business as usual at Oncor, which he called “one of the most efficient, reliable and low-cost utilities in the nation.”

“We are incredibly impressed by Oncor’s management team and its employees, and we are committed to retaining the Oncor name, its Dallas headquarters and local management,” Robo said. “NextEra Energy shares Oncor’s strategy of making smart, long-term investments in transmission and distribution.”

Approvals Needed

The sale must be approved by both the Public Utility Commission of Texas and a federal bankruptcy court. If approved, it would divest EFH of its 80% stake in Oncor for about $14.9 billion, NextEra said. The deal would be primarily cash, along with some NextEra stock, according to an 8-K EFH filed Friday with the U.S. Securities and Exchange Commission.

The deal can be canceled if the PUCT’s approval includes any of several conditions that the agreement outlines as overly “burdensome” or if it hasn’t closed by March 26, 2017, though there is the potential for a 90-day extension.

Although EFH is allowed to seek other offers, it would be on the hook for a $275 million termination fee if the NextEra deal receives PUCT and court approval and EFH eventually sells to someone else.

Other Suitors

That creates a hurdle for other rumored Oncor suitors, including Berkshire Hathaway Energy, Fidelity Management, Edison International and Hunt Consolidated. Also interested was the investor group led by Borealis Infrastructure Management and Singapore’s GIC Special Investments that together own the other 19.75% of Oncor. (See With Oncor Back on the Market, Multiple Suitors Line Up.)

Hunt remains optimistic, releasing a statement that called the announcement “not a surprise and, as we know, is just another step in a very long process.”

“Hunt will remain involved as the process unfolds, as the advantages of maintaining ownership of Oncor by Texans for Texans are clear,” Hunt spokeswoman Jeanne Phillips said.

Hunt previously appeared to be a frontrunner for Oncor, but its bid foundered in May when the PUCT imposed conditions it said were unacceptable. Hunt has since sued to reopen the case. (See Hunt Reopens Oncor Bid in Lawsuit Against PUCT.)

Tax Liability Eliminated

EFH’s 8-K also announced a favorable ruling from the Internal Revenue Service that eliminates a potential $4 billion tax liability for its remaining assets.

EFH has proposed a separate path for its Luminant generation arm and TXU Energy retailer, selling them to senior creditors who are owed $24.4 billion. Bankruptcy court hearings on the proposed sales are scheduled to begin Aug. 17 in Delaware.

NextEra’s Other Moves

NextEra also announced on Friday that its competitive energy subsidiary, NextEra Energy Resources, is selling its interests in two Pennsylvania gas-fired generation plants to a Connecticut-based investment firm for $760 million.

Starwood Energy Group Global, which focuses on gas-fired and renewable generation, transmission and storage facilities, agreed to buy the 790-MW combined cycle Marcus Hook Energy Center and the 50-MW simple cycle Marcus Hook 50 Energy Center in Marcus Hook, Pa.

NextEra says the sale, which is expected to close in the fourth quarter of 2016, will result in net proceeds of approximately $255 million after repayment of the existing project-related financing.

July 28, 2016

Exelon’s Constellation to Buy Con Ed’s Retail Operation

By Ted Caddell and Rich Heidorn Jr.

NASHVILLE, Tenn. — Exelon’s Constellation Energy Resources unit is buying Consolidated Edison’s retail energy business as it continues its efforts to hedge against falling wholesale power prices.

Constellation’s purchase of the retail division of ConEdison Solutions will give it another 560,000 residential, commercial and business electricity and natural gas customers in Texas, D.C. and 12 states in the Northeast, Mid-Atlantic and Midwest. If completed, it will make Constellation the largest competitive energy supplier in the U.S., with 2.5 million customers. Terms of the deal were not disclosed.

“This agreement provides an opportunity to grow our retail electricity and natural gas business in strategically attractive markets where we’re best suited to match load served with Exelon generation assets,” Constellation CEO Joseph Nigro said. “ConEdison Solutions has a reputation for delivering value to customers, and our combined companies will continue that tradition with a broad array of energy products and services at competitive prices.”

“With their industry-leading position, we are confident that the retail electricity and natural gas business will continue to thrive as part of Constellation,” ConEdison Solutions CEO Mark Noyes said. “This move will enable our company to focus our attention and our resources on making energy services and renewable energy offerings even more competitive and well-positioned for rapid growth.”

Having guaranteed customers for its wholesale generation fleet protects the company from volatility in wholesale prices.

It was the company’s efforts to minimize price risk that also led Exelon to its $6.8 billion purchase of Pepco Holdings Inc. this spring. The addition of PEPCO, Delmarva Power and Atlantic City Electric brought Exelon’s customer base to 10 million.

No More Debt

Exelon CEO Chris Crane gave no hint of the Con Ed deal in an appearance Monday at the National Association of Regulatory Utility Commissioners’ summer meeting.

In an interview with NARUC President Travis Kavulla, Crane said the company would not seek debt-financed acquisitions despite the current low interest rates.

exelon, coned, constellation — Exelon CEO Christopher Crane (L) and NARUC President (and Montana PSC Vice Chair) Travis Kavulla © *RTO Insider*

Independent power producers who seek greater leverage when interest rates are low can find themselves squeezed when rates rise, he said.

“We operate in probably a little bit more conservative way,” he said. “Our focus is actually reducing debt and maintaining a strong capital structure and understanding we’re at a low point in the [interest rate] cycle. It would not be prudent to think that this is a sustainable environment going forward.”

Meanwhile, Exelon is seeking help from state officials to eliminate the losses at its nuclear plants in Illinois and New York.

The company said in June it will close its Clinton and Quad Cities nuclear plants after the Illinois General Assembly adjourned without acting on a bill that would have subsidized the money-losing stations. (See Exelon to Close Quad Cities, Clinton Nuclear Plants.)

Crane said the company wants to preserve the plants’ 4,200 jobs — “The tax base for DeWitt County dries up and goes away if the Clinton plant shuts down,” he said — but can’t continue to absorb the losses.

In New York, where the company has three nuclear plants, it has offered to buy Entergy’s struggling FitzPatrick plant if state regulators complete a plan to subsidize them.

Crane said the company has had a “very productive dialog” in New York, adding that the state’s proposed zero emission credits would create a “level playing field for carbon-free generation.”

“If other states that our … nuclear assets [operate in] want to approach the market like that we would like to do that,” he said. (See Commenters Laud, Blast New York’s Nuclear Subsidy Plan.)

July 28, 2016January 23, 2024

Governance Plan Critics Urge Slowdown of Western RTO Development

By Robert Mullin

Critics of CAISO’s most recent draft proposal of principles for governing a Western RTO contend the ISO is moving too quickly to get a plan to California lawmakers before the close of the current legislative session in September.

Speaking at a joint state agency workshop in Sacramento on Tuesday, multiple industry participants expressed concern that the ISO’s expedited effort to complete a proposal will result in a governance framework that defers too many issues to be resolved in the future.

The workshop — hosted by CAISO, the California Public Utilities Commission and the California Energy Commission — marked the last public forum in which stakeholders could discuss the proposal before it gets forwarded to Gov. Jerry Brown, who is expected to transmit a final version to lawmakers in August. California law requires the legislature to approve the ISO’s transformation into an RTO, a process that would result in the state losing direct authority over the grid operator.

‘One of the Largest Issues’ in CAISO History

“Regionalization is one of the largest issues facing the ISO in its history,” said Carolyn Kehrein, principal consultant for the Energy Users Forum, which represents large energy customers in California. “Unfortunately, the changes [to the original proposal] were made to meet a quick turnaround.”

Among those changes were provisions that clarify the composition and responsibilities of a transitional committee tasked with creating a final governance plan; reaffirm that any such plan must respect individual states’ sovereignty over electricity matters they currently regulate; and set a specific timeframe for the appointment of a final RTO board (See Revised Western Governance Plan Highlights State Authority.)

The revised proposal defined the makeup of a Western States Committee (WSC), which would consist of state-appointed representatives and two nonvoting members representing publicly-owned utilities and federal power marketing administrations (PMAs). A provision requiring load-weighted voting on the WSC was altered to enable the transitional committee to develop a process that factors in “some form of weighted voting based on load,” such as a supermajority requirement.

An expanded CAISO would first take in PacifiCorp’s service territories, but the ISO is preparing for other transmission owners to join in the near future.

CAISO also added a provision for the RTO to adopt a capacity market at the request of member states, while eliminating a provision for tracking greenhouse gas emissions — a measure the ISO contended was more suited for inclusion in market operations than as a principle in an overarching governance plan. The GHG mechanism would have monitored carbon emissions from all thermal plants participating in the RTO, not just those located in California.

Western States Committee Powers

“Our biggest concern is — how many more revisions will there be before this is final?” said Matt Freedman, an attorney with The Utility Reform Network (TURN), which represents small customers. “This feels like a working draft.”

Freedman said his organization was concerned that the WSC’s powers were reduced in the revised proposal, which now stipulates that the RTO’s board can — in certain circumstances — override the requirement for the committee’s approval for Section 205 filings with FERC.

TURN was also worried about the “watering down” of an earlier prohibition on capacity markets, as well as the removal of the reference to GHG tracking.

Sierra Club staff attorney Travis Ritchie wondered how California would manage its GHG program without making emissions tracking a core principle, saying that the absence of tracking in the Energy Imbalance Market has allowed carbon leakage into the state’s power market.

“We need to agree what our fundamental principles are before opening up this market,” Ritchie said. “We have to set out our clear requirements first.”

Tony Braun, an attorney representing the California Municipal Utilities Association (CMUA), criticized the proposal for deferring the decision to create an RTO market advisory committee to the transitional committee.

“We think the transitional committee scope is too broad,” Braun said. “I don’t think the states are going to go for it.”

He cautioned the ISO not to move too quickly to advance a proposal to lawmakers given the number of “outstanding issues” related to governance.

‘Shouldn’t be Rushing’

“We shouldn’t be rushing forward now. The train is not going to come off the tracks,” Braun said. “Let’s not get embedded in a discussion in the legislature this year.”

“It seems to me that you’re placing a heavy burden on the people in the building just north of this,” said Imperial Irrigation District (IID) General Manager Kevin Kelley, referring to legislators in the nearby state capitol.

Kelley said that his utility, which operates its own balancing authority area in Southern California’s Inland Empire region, is opposed to CAISO’s regionalization because it will require the state to relinquish its oversight over an organization that suffered costly market manipulation during the 2000-2001 Western Energy Crisis. IID last month sued CAISO to force public disclosure of protected information related to the ISO-commissioned studies supporting regionalization.

Kelley suspected the “driver” of regionalization was a “for-profit corporation” — namely, PacifiCorp.

“I would encourage you not to hurry it up because that’s what PacifiCorp wants you to do,” he added.

Supporters Weigh In

The revised proposal also had its supporters.

“We do feel like this process [for creating the proposal] has been very transparent,” said Jennifer Gardner, staff attorney for Western Resource Advocates, an environmental group. “We’ve been pleasantly surprised that recommendations were taken to change the second proposal.”

Gardner called the regional market “the best opportunity to improve business as usual” in the West and said that any proposal taken to the legislature “should be as broad as possible to not tie the hands of the transitional committee.” She said that GHG tracking on a regionwide basis would be important for assessing the environmental benefits of the market.

Jonathan Weisgall, vice president of legislative and regulatory affairs at PacifiCorp parent Berkshire Hathaway Energy, said CAISO’s regionalization studies made it “very clear” that the region’s 2030 GHG reduction goals “won’t happen without a market.”

In the “unlikely event” that regionalization did increase emissions from PacifiCorp’s coal plants, the company would work to mitigate them, Weisgall said.

“In our Midwest utility [MidAmerican Energy], where we’re moving to 80% renewables, we could not do that without a regional ISO,” Weisgall said.

Preserving State Authority

Jan Strack, a transmission planning manager with San Diego Gas & Electric, said his utility has been in favor of expanding the market for a long time. He said the infrastructure for the market is already in place and that it wouldn’t cost much money to expand it. Strack also contended that an expanded market would enable California to achieve its GHG goals at a lower cost.

“We need to avoid some roadblocks [in the governance plan],” Strack said. “The first one is preserving state authority.

“At the same time, we have to recognize that FERC has authority over interstate commerce,” he added. “That’s one area we would be uncomfortable handing over to the Western States Committee.”

“We support regionalization of the ISO and the associated market because, frankly, they work,” said Robin Smutny-Jones, director of California policy and regulations for Avangrid. “That’s why there’s been a proliferation of RTO-like structures across the country and around the world.”

Smutny-Jones acknowledged the RTO would need to work through contentious issues such as transmission access charges and regional resource adequacy, both of which would be left to a newly constituted RTO.

“But other states have done it, and the West can too,” she said.

July 26, 2016

New York ESCO Order Vacated by Court

By William Opalka

A New York judge has vacated the Public Service Commission’s February “reset order” that sought to overhaul the business practices of retail energy suppliers.

The July 22 order by acting state Supreme Court Justice Henry Zwack said energy service companies (ESCOs) were denied due process by the commission, especially by the strict time frame for compliance (870-16, et al.).

The order bars the PSC from enforcing a requirement that ESCOs guarantee retail and small commercial customers will pay no more than they would for default service (excluding contracts offering at least 30% renewable power) (15-M-0127, et al.).

It also throws out a requirement that ESCOs receive “affirmative consent” from such customers before renewing them from a fixed rate or guaranteed savings contract into one that provides renewable energy but does not guarantee savings.

Zwack left standing language the commission added to its business practices imposing tougher enforcement measures against those who prey on vulnerable or uninformed customers.

While regulators insisted they acted to protect customers from deceptive business practices, ESCOs said the order effectively killed customer choice in New York.

The order “is arbitrary and irrational in that it imposes the unexplained and harsh 10-day implementation period for the order, which amounts to a major restructuring of the retail energy market — or even its collapse,” Zwack wrote in his 26-page opinion. “The court is perplexed that implementation would be so immediate, when by the PSC’s own admission so many questions remain.”

PSC officials said they will address the judge’s procedural concerns promptly.

The commission acted in response to what it said was unscrupulous business practices by some retailers. ESCOs immediately challenged the order in court and also sought a rehearing by the PSC. (See Retailers Ask for Rehearing of NY Guaranteed Savings Order.) A stay was granted in March as the court challenge was pending.

Retail Energy Supply Association spokesman Bryan Lee said the group was “gratified that the court vacated the … order, finding the PSC action to be ‘irrational, arbitrary and capricious’ and failed to offer ESCOs ‘an opportunity to be heard in a meaningful manner and at a meaningful time.’ The court found that ESCOs were ‘stripped of any meaningful opportunity to participate in the promulgation of the reset order.’”

Zwack reaffirmed that the PSC maintains jurisdiction over retail rates, turning aside a challenge from the ESCOs.

“The court’s affirmation that the PSC has legal jurisdiction over ESCOs is an important win for the PSC and millions of consumers in New York,” PSC spokesman James Denn said in a statement. “The procedural flaws highlighted by the court have been addressed, or will be, as we continue to move forward with Gov. [Andrew] Cuomo’s far-reaching plan to protect customers from unscrupulous ESCOs. Make no mistake, we are putting an end to deceptive ESCO practices that harm electric and gas customers.”

Zwack’s ruling does not affect a PSC order earlier this month imposing a moratorium on ESCOs signing up additional low-income customers. Regulators issued the order after a collaborative effort failed to develop a formula under which customers could be guaranteed savings. (See NYPSC Declares Moratorium on Low-Income Sign-ups.)

In a statement released Tuesday, PSC Chair Audrey Zibelman defended the commission’s actions.

“When ESCOs were charging multiple times the prices that utilities charge for energy, and consumer complaints of deceptive marketing practices poured in by the hundreds, the commission took bold action in February to protect consumers,” she said. “Unfortunately, as a result of the litigation, ESCO customers are still paying millions of dollars more every month than they should be paying for electric and gas services. But this injustice will be short-lived. … The commission will easily address the procedural concerns raised by the court and will continue our work to ensure that all electric and gas consumers in New York have the protections they need and deserve.”

July 26, 2016

FERC OKs Settlement, Orders Earlier Refunds in MISO Voltage Cost Allocation Case

FERC last week approved a settlement in a dispute between WPPI Energy and MISO over how to allocate voltage and local reliability (VLR) costs to pseudo-tied load (ER12-678-006).

The commission also granted WPPI rehearing in a related case, ordering MISO to pay refunds from September 2012 rather than July 2014 in a reallocation of costs for revenue sufficiency guarantees paid to resources providing VLR support (ER12-678-004, EL14-58-001).

In 2012, FERC approved MISO’s proposal to allocate VLR costs to all loads in a local balancing authority area (BAA), including pseudo-tied loads — load that is effectively transferred from a source local BAA, in which that load is physically located, to a different host (or “sink”) BAA. In a later order, the commission had reasoned that “the local BAA of the host load is responsible for voltage management in the pseudo-tied local BAA, and therefore MISO’s proposal comports with cost causation.”

FERC reversed course in June 2014, saying it had “erred” in approving MISO’s cost allocation and setting the issue for settlement discussions.

The commission said the settlement resolves the issue of “whether MISO should allocate VLR costs incurred in responding to a localized constraint to a market participant such as WPPI based on its load that is physically remote from the constraint, because that load has been pseudo-tied into the LBA area affected by the constraint.”

The settlement will revise MISO’s Tariff by adding a new term, “internal commercially pseudo-tied load,” and new language requiring submission of meter data by market participants that have such loads. MISO agreed to resettlements of WPPI’s VLR payments as soon as possible after the installation of necessary software changes and WPPI’s submission of required meter data.

In the related order, the commission agreed with WPPI that refunds from the reallocation should be effective as of Sept. 1, 2012, the date MISO’s original rate proposal went into effect, rather than July 9, 2014, the date FERC originally set.

July 25, 2016

FirstEnergy Closing Largest Coal Plant in Ohio; Bay Shore also in Peril

By Suzanne Herel

FirstEnergy will retire four units at its largest coal-fired power plant in Ohio and sell or deactivate its Bay Shore plant by 2020, the company said Friday, citing “challenging market conditions.”

Together, the units represent 856 MW, of which 136 MW is generated by Bay Shore in the City of Oregon, Ohio. Units 1-4 of the seven-unit W.H. Sammis Plant in Stratton produce 720 MW. The remaining two units there will continue to provide 1,490 MW of baseload generation.

first energy, coal, ohio, bay shore — Sammis Power Plant *Source: Bechtel*

The 78 employees at Bay Shore would be offered jobs elsewhere in FirstEnergy if that plant were deactivated, and the company would work with any potential buyer to arrange their retention. Likewise, the 368 employees at Sammis would be offered other job opportunities, the company said.

Last year, the units headed toward closure or sale generated 4% of the electricity produced by all of FirstEnergy’s plants.

“We have taken a number of steps in recent years to reduce operating costs of our generation fleet,” FirstEnergy Generation President Jim Lash said in a statement. “However, continued challenging market conditions have made it increasingly difficult for smaller units like Bay Shore and Sammis Units 1-4 to be competitive. It’s no longer economically viable to operate these facilities.”

The announcement comes as the staff of the Public Utilities Commission of Ohio has proposed a rider for FirstEnergy that would allow it to recover $131 million annually from customers over three to five years so it may retain an investment-grade credit rating as it struggles to maintain some of its aging, mostly coal-fired plants. (See PUCO Staff Recommends $131M Annual Rider for FirstEnergy.)

FERC in April had ruled that an eight-year power purchase agreement PUCO had approved for FirstEnergy, and another for American Electric Power, would be subject to federal review. The ruling prompted FirstEnergy to return to PUCO with a modified proposal that commission staff said should be rejected in favor of the recommended rider.

FirstEnergy’s announcement was welcomed by environmental advocates who had denounced the company’s power purchase request as a corporate bailout.

“Closing these outdated, dirty power plants not only shows FirstEnergy finally recognizes the market momentum toward coal’s inevitable demise, the decision is great news for Ohio customers, who avoid paying a massive subsidy to keep the units afloat,” said Dick Munson of the Environmental Defense Fund.

According to the Sierra Club, FirstEnergy’s announcement brings the total amount of coal generation that has retired or is set to retire in the state since 2010 to 10,093 MW.

“Today’s announcement is further proof that Sammis is an outdated and costly coal plant that customers should not be forced to prop up,” said Shannon Fisk of Earthjustice. “We will continue to fight efforts that could be used to bail out other FirstEnergy coal units, as now is the time for significant investments in renewable energy, energy efficiency and grid modernization activity that will create jobs and economic development throughout Ohio.”

Bay Shore Unit 1, whose boiler is fueled by petroleum coke, went online in 2000. Units 2-4 were deactivated in 2012 because of environmental regulations.

Units 1-4 at Sammis date to 1959 through 1962. Units 5-7 came online from 1967 to 1971.

According to FirstEnergy, it pays $1.7 million annually in Bay Shore property taxes. The company pays more than $7 million in property taxes on the Sammis plant, making it the largest taxpayer in Jefferson County.

July 25, 2016

FERC, Corps Agree to Streamline Nonfederal Hydro Permits

By Robert Mullin

An agreement between FERC and the U.S. Army Corps of Engineers could help spur the development of privately run hydroelectric resources at the Corps’ unpowered dams.

The two agencies on Thursday signed a memorandum of understanding (MOU) to synchronize their processes to shorten permitting times, provide more certainty in regulatory outcomes and reduce financial risk for nonfederal project developers.

AMP Smithland Project (AMP) - ferc army corps hydro permits — AMP’s Smithland project in Kentucky will divert water from the Corps’ locks and dams to generate 76 MW of electricity.

“The potential for hydropower development in this country is significant, particularly at existing Corps facilities,” FERC Chairman Norman Bay said. “Today’s MOU is a positive step toward the development of these resources.”

A 2012 Department of Energy study identifying 6,900 MW of potential hydroelectric capacity at the Corps’ unpowered dams sparked interest in development at the agency’s water projects, according to Tim Welch, the department’s hydropower program manager.

The Corps is authorized to allow nonfederal entities to develop hydroelectric projects at its facilities provided that the project’s operation is deemed compatible with the purposes of the facility and the federal government has no competing development interest.

“This synchronized approach will shorten the time it takes the private sector to develop and construct new hydropower and will help us more efficiently use our existing infrastructure,” said Jo-Ellen Darcy, the Army’s assistant secretary for civil works. “It is also advancing our efforts to find alternative ways to finance new infrastructure.”

The synchronized process consists of two overlapping phases in which the Corps’ environmental and engineering reviews occur simultaneously with the commission’s processing of the hydropower license application. The agencies had been conducting their permitting processes sequentially.

During the first phase focused on environmental impact, FERC and Corps staff will collaborate with a project developer to understand the proposal and communicate the agencies’ permitting requirements.

As the lead agency under the National Environmental Policy Act responsible for licensing hydroelectric projects, FERC will direct preparation of the environmental permit for a proposed project, coordinating with its sister agency to ensure that a final document is consistent with the Corps’ statutory obligations. Once the joint environmental impact review is complete, FERC will issue a license.

The second phase will entail a technical, engineering and safety review after the developer has submitted a final project design. The developer will coordinate with the Corps to ensure construction won’t compromise the structural integrity of the agency’s facility. Once those requirements are met and communicated to FERC, the commission will authorize the project’s construction.

The MOU makes explicit that, as a cooperating agency in the process, the Corps is prohibited from later intervening in any FERC proceeding related to a project’s approval.

The commission has licensed nearly 30 nonfederal hydroelectric projects with a combined capacity of 400 MW at Corps facilities since 2007, said Nick Jayjack, deputy director of FERC’s Division of Hydropower Licensing. Five projects rated at about 133 MW are currently under construction, while 18 license applications representing another 500 MW are in the commission’s review pipeline.

July 25, 2016

FERC-SPP Briefs

Non-jurisdictional SPP members that refused to agree to potential refunds of revenues from the RTO’s seams settlement with MISO can be denied distribution of settlement proceeds, FERC ruled last week (ER16-791).

The ruling clarified the commission’s March order accepting SPP’s proposal to distribute to its members $16 million in funds reached in a settlement with MISO over the latter’s use of SPP’s transmission system to transfer power freely between its North and South regions. The order set the docket for hearing and settlement procedures to resolve factual issues in dispute. (See SPP Asks for Clarification on MISO Settlement Order.)

SPP asked the non-jurisdictional transmission owners to promise refunds of the revenues in case the allocation methodology changes as a result of the settlement procedures, but some TOs refused to agree.

The commission said SPP may withhold the settlement revenues from them, but the RTO must pay interest on any amounts withheld once the allocation is final. “SPP has not provided justification for it to withhold the settlement revenues without any interest,” FERC said.

FERC Order Allows SPP to Reduce ARRs

FERC last week accepted an SPP compliance filing that reduces the number of auction revenue rights made available in its annual allocation process (ER16-13).

SPP filed proposed Tariff revisions last October reducing the percentage of available transmission capability used to determine simultaneous feasibility.

FERC responded by asking SPP to modify section 7.3 of Attachment AE in its Tariff, specifying that transmission providers make available 60% of their transmission system capability for the fall, winter and spring seasons (October-May) during the annual ARR allocation process.

The RTO proposed corresponding revisions to the attachment removing references to assumed system capability for June-September to reduce potential ambiguity in the ARR settlement calculations during the annual transmission-congestion rights auction.

SPP to Bill Tri-County, Refund Tx Customers

FERC directed SPP to bill Tri-County Electric Cooperative for the co-op’s annual transmission revenue requirement (ATRR) with interest and to refund the amount to customers affected during a 10 1/2-month period in 2012-2013 (ER12-959).

The action corrects a “legal error” made by the commission in a 2012 docket that concluded with a 2014 affirmative order. Xcel Energy Services petitioned the D.C. Circuit Court of Appeals to review the decision, arguing that the rates at issue were SPP’s rates, not Tri-County’s.

The D.C. Circuit held that FERC failed to justify its decision to allow SPP’s filing to go into effect without a refund commitment by Tri-County, “thus failing to ensure that SPP’s rates would be just and reasonable.” The court found the commission “misapprehended its remedial powers and thus arbitrarily declined to weigh the equities underlying Xcel’s request for retroactive relief.”

FERC said it was remedying the error by directing SPP to bill Tri-County for the amounts of the co-op’s revenue requirement that SPP collected from ratepayers between April 1, 2012, and Feb. 21, 2013, with interest. It also directed SPP to make refunds to ratepayers once it received payment from Tri-County.

The proceeding began on February 2012, when SPP filed Tariff revisions to implement a formula rate in calculating Tri-County’s ATRR as a nonpublic utility participating transmission-owning member in the pricing zone of Xcel’s Southwestern Public Service.

The commission admitted it accepted SPP’s filing and set it for settlement hearings “without following its policy of accepting a rate filing to take effect pending the outcome” of further procedures when Tri-County agreed to refund the difference between the as-filed rate and FERC’s final approved rate.

Tri-County is a non-jurisdictional not-for-profit distribution cooperative with headquarters in Hooker, Okla. It serves approximately 23,000 customers in Oklahoma, Kansas, Texas, Colorado and New Mexico.

Western Farmers’ 10.87% ROE Approved

The commission accepted revisions to SPP’s Tariff adopting a formula rate for Western Farmers Electric Cooperative’s transmission service, while also sending the case to a settlement judge to address questions regarding the co-op’s return on equity and depreciation rates.

FERC’s order approved Western Farmers’ request for a return on equity of 10.87%, including a 50-basis-point adder for participation in SPP on top of its 10.37% base ROE (ER16-1774).

The commission noted that while Western Farmers is not within its jurisdiction under Section 205 of the Federal Power Act, it was “appropriate to apply the just and reasonable standard … to SPP’s proposed rates filed on behalf of Western Farmers.” That allows the utility to receive the same overall ROE “as that used by the applicable transmission zone’s dominant transmission owner.”

The commission said the case would be more appropriately addressed in settlement proceedings because Western Farmers’ proposed ROE is based on an average of other SPP transmission owner ROEs, which is not a FERC-approved methodology. FERC also said the utility proposed unsupported depreciation rates and failed to ensure wholesale customers will not be charged for capitalized construction funds and work in progress.

Western Farmers is a rural electric cooperative that provides wholesale power to 21 distribution cooperative member-owners in Oklahoma and New Mexico, as well as Altus Air Force Base.

NPPD Allowed to Terminate QF Contracts

The commission largely granted the Nebraska Public Power District’s application to terminate a requirement that it enter into new obligations or contracts with qualifying facilities with net capacities of more than 20 MW (QM16-1).

FERC said it terminated the mandatory purchase requirement because QFs in NPPD’s territory have “nondiscriminatory access” to wholesale markets. NPPD had argued that as an SPP member, it had satisfied its regulatory requirements under the Public Utility Regulatory Policies Act and was not subject to the commission’s authority under the FPA.

The order made an exception for NextEra Energy’s Cottonwood QF, which initiated a proceeding before NPPD’s board of directors “that may result in a legally enforceable obligation.” The commission grandfathered the Cottonwood contract because the facility sent a purchase request to NPPD last November, before the utility’s original Feb. 12 application to FERC. It found Cottonwood’s letter had established “a contract or legally enforceable obligation.”

NextEra was among a handful of SPP members and QFs that intervened, saying it had three self-certified QFs in NPPD’s service territory. NextEra did not challenge NPPD’s assertion it had satisfied PURPA’s requirements, but it said NPPD failed to acknowledge two letters seeking the utility’s purchase of the output from two of its QFs.

FERC found that the second letter, sent by Sholes Wind on the same day NPPD filed with the commission, was not filed prior to Feb. 12, and thus was not grandfathered.

— Tom Kleckner