Pursuant to Rules 211, 213, and 214 of the Rules and Regulations of the Federal

Transcription

1 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Winding Creek Solar LLC ) ) ) Docket Nos. EL QF JOINT MOTION TO INTERVENE, PROTEST, AND ANSWER OF SOUTHERN CALIFORNIA EDISON COMPANY, PACIFIC GAS AND ELECTRIC COMPANY, AND SAN DIEGO GAS & ELECTRIC COMPANY TO WINDING CREEK SOLAR LLC S PETITION FOR PURPA ENFORCEMENT Pursuant to Rules 211, 213, and 214 of the Rules and Regulations of the Federal Energy Regulatory Commission ( FERC or Commission ), 18 C.F.R ,.213, and.214 (2014), Southern California Edison Company ( SCE ), Pacific Gas and Electric Company ( PG&E ), and San Diego Gas & Electric Company ( SDG&E ) (jointly California Utilities ) hereby file this Motion to Intervene, Protest, and Answer the Petition for Enforcement Under the Public Utility Regulatory Policies Act of 1978 ( PURPA Petition ) filed by Winding Creek Solar LLC ( Winding Creek ) on March 9, 2015 in the above-referenced dockets. As discussed herein, the Commission should issue an Intent Not to Act on the PURPA Petition and instead declare that Winding Creek has not demonstrated that PURPA has been violated based on the facts alleged. 1

2 I. WINDING CREEK HAS FAILED TO DEMONSTRATE THAT OTHER PURPA CONTRACTS WITH LONG-TERM AVOIDED COST RATES ARE NOT AVAILABLE TO IT A. Winding Creek Has Other Options To Enter Into a PURPA Contract Other Than The Re-MAT Program Winding Creek seeks relief concerning the 750 MW capacity cap on eligibility for the renewable market adjusting tariff or Re-MAT program, seeking, among other things, a declaration that the cap is inconsistent with PURPA and thus void ab initio. 1 The California Legislature established the 750 MW cap when it enacted the statute establishing the Re-MAT program. 2 The California Public Utilities Commission ( CPUC ) subsequently implemented the Re-MAT program, including the 750 MW statutory limit. Winding Creek accurately states that once the 750 MW cap is reached, the Re- MAT program is effectively closed because the statutory program cap has been reached. But, that fact alone is insufficient for the Commission to either issue the requested declaration or to start an enforcement action. The entire basis for Winding Creek s claim that the cap is unlawful is its belief that the Re-MAT program is the only program in California for a Qualifying Facility ( QF ) to obtain a PURPA contract with a long-term avoided cost rate. 3 Winding Creek s Petition, however, ignores the fact that the CPUC implemented PURPA through the establishment of a long-term avoided cost option in the form of the Standard 20 MW and Under QF Contract. Given that Winding Creek has 1 Petition at 5. 2 Cal. Pub. Util. Code (f)(1) (2015). 3 Petition. at 2, 4 ( Re-MAT is the only program in California for a QF, such as Petitioner s, to obtain the long-term rate. ). 2

3 presented no evidence that other PURPA programs under which it remains eligible to obtain a contract with a long-term avoided cost rate are similarly closed, Winding Creek has not met its burden of proof. 4 The 750-MW cap on Re-MAT is simply irrelevant to the issue of whether the CPUC has adopted a lawful approach for implementing the requirement that QFs (20 MW and under) be able to sell at long-term avoided cost rates, which Winding Creek uses as a shorthand for referring to a QF s right, under 18 C.F.R. Section (d)(2), to provide energy or capacity over a specified term pursuant to a legally-enforceable obligation, at an avoided cost calculated at the time the obligation is incurred. Winding Creek has never obtained a finding that Re-MAT is the only means of obtaining such a contract or otherwise legally-enforceable obligation. Indeed, in its five-page Petition, dated March 9, 2015, Winding Creek fails to mention any other PURPA program. In Decision ( D. ) , dated December 16, 2010, the CPUC adopted the Qualifying Facilities/Combined Heat and Power ( QF/CHP ) Settlement Agreement, which makes available to all QFs 20 MW or smaller the Standard 20 MW and Under QF Contract. This PURPA contract fulfills the obligation of 18 C.F.R. Section (d)(2), by setting a rate at the time of contracting. D adopted the Standard 20 MW and Under QF Contract for each of the California IOUs. Indeed, when 4 Petition at 2, 4 ( Re-MAT is the only program in California for a QF, such as Petitioner s, to obtain the long-term rate. ). The California Utilities assume that Winding Creek is aware that the Investor Owned Utilities ( IOUs ) are no longer compelled to purchase from over 20 MW QFs and is thus only addressing QFs 20 MW and under. See Pacific Gas and Electric Company, et al., 135 FERC 61,234 (2011) (terminating PURPA purchase obligation for California utilities for facilities above 20 MW). 3

4 the Commission terminated the PURPA purchase obligation for QFs that are greater than 20 MW, it noted that new power purchase agreements were available for QFs 20 MW and under. 5 For an existing facility, the Standard 20 MW and Under QF can last up to 7 years in length. But, a QF can sign an unlimited number of such contracts. So, when a QF s first Standard 20 MW and Under Contract is nearing its end, the QF can sign another Standard 20 MW and Under Contract. For a new facility, the Standard 20 MW and Under QF Contract can last up to 12 years. After the first term is over, the QF can then sign a Standard 20 MW and Under QF Contract of up to 7 years in length and can sign an unlimited number of such contracts. Winding Creek fails to address or even mention these facts. PURPA Section 210(h)(2)(B) 6 provides that a qualifying small power producer may petition the Commission to enforce the requirements of subsection (f). Subsection (f) in turn requires the states to conduct PURPA rulemakings to implement PURPA. The CPUC has fully complied with its obligations toward QFs under subsection (f), and indeed gone well beyond PURPA, which does not require that states establish standardized long-term avoided cost rates for QFs over 100 kw, let alone standardized rates for multiple classes of QF generators, as the CPUC has done. Winding Creek has no legal basis to challenge the CPUC s implementation of PURPA because a long-term avoided cost option is already available to it. In California, the Standard 20 MW and Under QF Contract pursuant to the QF Settlement is available to any QF 20 MW or 5 PG&E, 135 FERC 61,234 at P U.S.C. 824a-3(h)(2)(B) (2006). 4

5 smaller and such contract includes a long-term avoided cost rate. Moreover, as discussed below, because Winding Creek does not challenge in this Petition the legitimacy of that rate as a long-term avoided cost rate, i.e., a rate set at the time of contracting, its claim must be dismissed. The existence of that standard contract, which again, is well beyond what is required by PURPA, satisfies the CPUC s obligations with regard to ensuring that QFs can sell their energy or capacity at an avoided cost rate. B. The Cap Issue Is Irrelevant Because Winding Creek Has Other Alternatives For a QF Contract Unless Winding Creek can demonstrate that the QF Standard 20 MW and under contracts and the corresponding rates paid under these contracts are 1) unavailable to it; or 2) do not reflect the purchasing utility s avoided cost determined at the time of contracting, it has no legal basis to challenge the CPUC s implementation of PURPA. The IOUs Standard 20 MW and Under QF Contract is available to renewable generators, including Winding Creek s technology, that are QFs, and virtually all forms of renewable energy generators can qualify as a QF. Indeed, in pertinent part, PG&E s FAQs on the QF Settlement, this fact was made clear: Q. What options are available to renewable QF generators under the Settlement Agreement? A. As part of the Settlement Agreement, a new standard offer PPA for QF facilities that are 20 MW or less in size (the "PURPA QF PPA") will be available 7 7 See 5

6 Winding Creek points out that the Commission declared in Hydrodynamics, Inc. that a 50 MW cap on a PURPA program was inconsistent with PURPA, because certain QFs could not obtain forecasted avoided cost rates once the cap was reached. 146 FERC 61,193 at P. 33 (2014). These QFs were precluded from selling at such a rate because the Commission found that there were no other means to obtain a legally-enforceable obligation that met the regulations requirements. See id. Here, the Petitioner alleges only that it cannot sell at a Re-MAT rate; it does not mention in the Petition other options for obtaining a PURPA contract at a long-term avoided cost rate. At least two such options exist the Standard 20 MW and Under QF Contract. In sum, Winding Creek, is wasting the time and resources of not only this Commission, but of a federal district court, by once again erroneously arguing that the Re-MAT program is the only means through which PURPA contracts with long-term avoided costs rates are available to QFs 20 MW and under. In response to the request for a declaratory order, the Commission thus should find that it cannot issue such an order on the impact of the 750 MW cap absent a demonstration that Winding Creek has tried and been unable to obtain a long-term avoided cost contract by the other means. II. MOTION TO INTERVENE The California Utilities will be directly affected by the outcome of the foregoing proceeding as they are IOUs in California subject to the Re-MAT program. The California Utilities have an immediate interest in the outcome of this proceeding. The California Utilities interests cannot be represented by any other party and, consequently, 6

7 the California Utilities respectfully request that the Commission grant them permission to intervene in this proceeding. A. SCE SCE s principal place of business is at 2244 Walnut Grove Avenue, Rosemead, California SCE designates the following persons for service on the Commission s service list in this proceeding: Carol A. Schmid-Frazee Southern California Edison Company 2244 Walnut Grove Avenue Rosemead, CA Telephone: (626) Carol.Schmidfrazee@sce.com Jennifer L. Key Steptoe & Johnson LLP 1330 Connecticut Ave., N.W. Washington, D.C Telephone: (202) jkey@steptoe.com B. PG&E PG&E s principal place of business is at 77 Beale Street, San Francisco, California, PG&E designates the following persons for service on the Commission s service list in this proceeding: Charles R. Middlekauff Pacific Gas and Electric Company P.O. Box 7442 San Francisco, California Telephone: (415) crmd@pge.com C. SDG&E SDG&E s principal place of business is at 101 Ash Street, San Diego, California SDG&E designates the following persons for service on the Commission s service list in this proceeding: 7

8 Georgetta J. Baker San Diego Gas & Electric Company 101 Ash Street San Diego, California Telephone: (619) Paul Szymanski San Diego Gas & Electric Company 101 Ash Street San Diego, California Telephone: (619) III. CONCLUSION Wherefore, the Commission should issue an Intent Not to Act and declare that the 750 MW cap is not relevant to whether there has been a violation of PURPA absent evidence that Re-MAT is the only PURPA program that provides a QF an opportunity to enter into a contract at a long-term avoided cost rate. Respectfully submitted on behalf of the California Utilities,, Carol A. Schmid-Frazee Southern California Edison Company 2244 Walnut Grove Avenue Rosemead, CA Telephone: (626) Carol.Schmidfrazee@sce.com /s/ Jennifer L. Key Steptoe & Johnson LLP 1330 Connecticut Ave., N.W. Washington, D.C Telephone: (202) jkey@steptoe.com 8

9 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document upon the parties on the official Service List compiled by the Secretary for these dockets in accordance with Rule 2010 of the Rules of Practice and Procedure, 18 C.F.R Dated at Rosemead, CA this 30th day of March, /s/ Laura Placencia By: Laura Placencia Project Analyst for SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California Telephone: (626) Dated: March 30, 2015