Re-reapplication for Re-rehearings and Re-motion for Stay of Decision

If you get an overwhelming sense of déjà vu reading this, it’s because you have been here before. When last we tuned in, the “Joint Utilities” (or IOUs) PG&E, SCE, and SDG&E had filed Applications for Rehearing Decision 10-12-055 and Motions for Stay of the same decision. In the latest update, the California Clean DG Coalition, FuelCell Energy, and San Joaquin Refining filed responses February 2 nd to the Applications and Motions. Decision 10-12-055 was the latest final decision in the AB 1613 implementation case (CHP) that modified the previous final decision in the case (D. 09-12-042) after the Federal Energy Regulatory Commission (FERC) issued a clarification order in response to the IOUs’ petition there. The Joint Utilities, in their most recent Rehearing Requests and Motion for Stay of D. 10-12-055 are sticking hard to their story that the decision violates federal law (PURPA) and FERC regulations by not aligning prices to be paid to combined heat and power (CHP) projects with the utilities’ Avoided Costs. They also protest the inclusion in the pricing per the CPUC decision of the 10% “Locational Bonus” and the pass-through of greenhouse gas compliance costs incurred by the CHP project. They also point out an apparent inconsistency in the pricing set for Qualifying Facilities (QFs) in the QF Settlement just adopted in a December 2010 decision (D. 10-12-035), because the Commission is now requiring AB 1613 projects to register as QFs, potentially making them subject to the different pricing in that decision. San Joaquin Refining (SJR) responds that the motion for stay should be denied on the merits, and the IOUs’ Applications for Rehearing raise no new issues and will not convince the FERC to modify AB 1613 prices. SJR also feels that the motion fails to indicate that the IOUs would likely prevail at FERC, that they offer no support for the assertion that serious or irreparable harm would come to ratepayers, and on balance, that more harm than good would result from the Commission granting a stay. The California Clean DG Coalition (CCDC) and FuelCell Energy, Inc. (FCE) filing jointly, protest the seemingly endless opportunities taken by the IOUs to rehash arguments over and over that have been asked and answered. Just since the latest final decision was issued, they observe, the Joint Utilities have filed two rounds of rehearing requests, and a petition for modification, as well as a petition for declaratory order, two requests for rehearing, and a petition for enforcement with FERC, all relating to the Commission’s implementation of AB 1613. The Joint Utilities should not, they say, be allowed unlimited opportunities to raise the same issues before the CPUC or FERC. CCDC and FCE agree with SJR that the Joint Utilities have not demonstrated that they are likely to prevail on the merits of the recently-filed FERC action or the Applications for Rehearing, that they will suffer “serious or irreparable harm” if the stay is not granted, that the balance of harm supports a stay, or that other relevant factors support a stay. They also point out that there are a number of entities for whom the issues at play are not in dispute, namely, public agencies who are outside the jurisdiction of the FERC. Similarly, with respect to the IOUs’ Applications for Rehearing, responses were filed by CCDC and FCE again filing jointly, and by SJR. Again they rebut the arguments put forth by the Joint Utilities -- is it really necessary to summarize again? Gluttons for punishment can read the full detail here . (As of this writing the documents were not yet posted to this PUC website). Meanwhile the utilities filed Advice letters January 31 st , implementing the CPUC decision as ordered, somewhat begrudgingly, as they had requested another delay which was not granted. Given the uncertainty swirling around the contracts, it is unlikely that many contracts will be executed until the matter is more finally settled. Public agencies, which should be immune to the current controversy, are dealing with perhaps the biggest downsizing in a generation looming over them, and might not respond to the window of opportunity with the alacrity with which they might normally. The same day they filed their complaint at FERC, alleging that the PUC required them to pay costs that are not just and reasonable, that are above the PURPA-required avoided cost, and "ignored FERC and adopted a policy under which any price can be declared an avoided cost price by regulatory fiat." They also complained about the locational congestion cost adder. We predict that the issues will be settled in yet another FERC decision on the matter, then a final final state decision memorializing the federal decision. Optimistically, all of this might conclude as early as this summer.

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Re-reapplication for Re-rehearings and Re-motion for Stay of Decision

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