Former FERC Commissioner Colette Honorable has joined Reed Smith as a partner in the law firm’s D.C. office, along with Regina Y. Speed-Bost, former chair of Schiff Hardin’s Energy Group.
The two will join Reed Smith’s energy and natural resources (ENR) practice, “spearheading the firm’s FERC offering,” Reed Smith said in a press release. Debra Ann Palmer, a colleague of Speed-Bost’s at Schiff Hardin, also is moving to the firm’s ENR practice as counsel.
“This addition underscores our commitment to building out our stateside energy offering in order to meet our energy and commodities clients’ needs, which include responding rapidly and proactively to fluid policies, regulations and enforcement initiatives,” said ENR Chair Prajakt Samant. Founded in 1877, Reed Smith has more than 1,700 lawyers in 27 offices in the U.S., Europe, Asia and the Middle East.
Honorable, a former Arkansas Public Service Commissioner and past president of the National Association of Regulatory Utility Commissioners, joined FERC in December 2014 and left June 30 at the expiration of her term. President Trump has nominated Richard Glick, general counsel for the Democrats on the Senate Energy and Natural Resources Committee, to replace her. (See Trump Taps Senate Aide, Former Lobbyist for FERC.)
Former FERC Commissioner Colette Honorable (L) and former Schiff Hardin attorneys Regina Speed-Bost and Debra Ann Palmer (R) have joined law firm Reed Smith to bolster its FERC practice.
Before joining the Arkansas PSC, Honorable served as chief of staff to then Arkansas Attorney General Mike Beebe, and as an assistant attorney general handling consumer protection, civil litigation and Medicaid fraud. She is a graduate of the University of Memphis and the University of Arkansas at Little Rock School of Law.
Speed-Bost, a former FERC trial attorney and adviser to former Commissioner William Massey, is a graduate of Dartmouth College and Georgetown University Law Center.
Palmer, a graduate of Case Western Reserve School of Law, has expertise in natural gas pipeline regulation and Commodity Futures Trading Commission rules, and has represented clients before FERC’s Office of Enforcement.
Dominion Energy announced Monday it will build the second offshore wind project in the U.S.: two 6-MW turbines about 27 miles off the coast of Virginia Beach.
The Coastal Virginia Offshore Wind project, which would be the first offshore project connecting to PJM, follows the 30-MW, five-turbine Block Island Wind Farm off Rhode Island, which went into operation in December.
Dominion Energy Coastal Virginia Offshore Wind Project | Dominion Energy
Dominion said DONG Energy of Denmark will begin engineering and development work immediately on the project. The turbines should be installed by the end of 2020, assuming no delays from weather or protected species migration.
The project will build on preparatory work performed under the Virginia Offshore Wind Technology Assessment Project and be located on a 2,135-acre site leased by the state Department of Mines, Minerals and Energy. Power will be delivered via a buried 34-kV distribution line to a connection point near the Virginia National Guard’s Camp Pendleton.
The state’s site is adjacent to the 112,800-acre site leased by Dominion from the U.S. Bureau of Ocean Energy Management (BOEM), an area with the capacity for 2,000 MW.
“Today marks the first step in what I expect to be the deployment of hundreds of wind turbines off Virginia’s coast that will further diversify our energy production portfolio, create thousands of jobs and reduce carbon emissions in the commonwealth,” said Gov. Terry McAuliffe, who attended the announcement at the Portsmouth Marine Terminal in the Hampton Roads area of Virginia. “Hampton Roads has the ideal port assets and talented workforce to attract and house the offshore wind business supply chain to support not only Virginia’s commercial wind area but also wind farms under development in Massachusetts, New York and Maryland.”
“While we have faced many technological challenges and even more doubters as we advanced this project, we have been steadfast in our commitment to our customers and the communities we serve,” Dominion CEO Thomas Farrell II said.
Left to right: Virginia Governor Terry McAuliffe; Thomas F. Farrell, II, Dominion Energy’s chairman, president and chief executive officer, Francis Slingsby, Dong Energy’s head of strategic partnerships in North America; Paul Koontz, executive vice president and president and CEO – Power Generation Group | Dominion Energy
Dominion lost $40 million in federal grants for the project last year when the U.S. Department of Energy said it wasn’t moving fast enough. In addition, bids on construction came in at about $400 million, almost double Dominion’s $230 million projection. The project was revived after DONG agreed to build it under a fixed-price contract of about $300 million.
Farrell’s comment also seemed an apparent response to critics who had worried that the utility would not develop its wind energy area, which it won in a BOEM lease auction in September 2013. (See Will an Old Utility Learn New Tricks?)
The company’s 2017 integrated resource plan, filed May 1, estimates the cost of offshore wind at $339/MWh, more than triple that for onshore wind ($99/MWh) and almost five times the cost of a 3×1 combined cycle plant ($70/MWh).
The high cost of offshore wind is particularly challenging in Virginia: The state does not have a mandatory renewable portfolio standard nor retail choice, which could create a niche for a green alternative. Despite that, Dominion has set a voluntary goal to obtain 15% of its power from renewables by 2025.
Excluding pump storage (9%), renewables represent 3% of its current capacity.
“We welcome the news that Dominion is making steps to bring offshore wind to Virginia. But this should have happened years ago,” said Mike Tidwell, executive director of the Chesapeake Climate Action Network. “Dominion already lost a federal grant for $40 million for dragging its feet on the project. Will ratepayers have to foot that bill?
“Meanwhile, Dominion continues to push for dangerous climate-warming fossil fuel projects like the Atlantic Coast pipeline, along with the support of Gov. Terry McAuliffe,” he continued. “The offshore wind pilot project is nowhere near what’s needed to bring us to a clean energy economy. If McAuliffe and Dominion were truly serious about helping Virginia become a leader in clean energy, they would stop pushing for fracked-gas pipelines and start focusing on expanding clean energy.”
Eileen Levandoski, assistant director of the Sierra Club’s Virginia Chapter, also criticized the pace of Dominion’s progress. “While the commitment to 12 MW by 2020 is helpful, the crisis we face with climate change demands that Dominion also engage aggressively on the commercial lease area and immediately commit to 400 [MW] by 2022 and 2,000 by 2030,” she said.
Dominion officials say the initial project will test whether the turbines can withstand hurricanes, and that it will not interfere with marine life and whale migrations. If turbine prices continue to decline, a larger project will begin operating by the mid-2020s, they said.
[Editor’s Note: An earlier version of this article incorrectly stated that the Dominion’s offshore distribution line would connect with the utility’s grid near “Marine Corps Base Camp Pendleton,” which is in California.]
Maine Gov. Paul LePage followed through Monday on his promise to veto a solar net metering bill, calling it bad policy that would “result in irrational outcomes.”
LePage | Jim Bowdoin, Maine.gov
The state Legislature passed the bill (LD 1504) with a bipartisan, veto-proof majority June 28. The governor waited to act until the last moment of the 10 business days that Maine provides for a veto.
“This bill is poor policy, and as I have noted many times, net energy billing subsidizes the cost of solar panels at the expense of the elderly and poor who can least afford it,” the governor said in a veto letter to the Legislature. “Even the Natural Resources Council of Maine has acknowledged that net energy billing ‘is not a preferred long-term policy.’ However, rather than moving away from this practice to a more sustainable approach, LD 1504 instead sets net energy billing into statute in perpetuity.”
“[LePage’s] characterizations of the bill are inaccurate,” responded Emily Green, an attorney for the Conservation Law Foundation. “He basically says the bill is going to make net metering long-term policy and that’s clearly not the goal or the intent of the legislation.”
Increased Participation
The bill would continue allowing residents who generate more power than they consume to earn credits for the retail price of that electricity, minus transmission and distribution costs. But it would require the Public Utilities Commission to recommend ways to transition away from net metering before the Legislature convenes in 2019, with solar power generators to be paid less starting in 2018.
Thomas College solar roof in Waterville, Maine | Coastal Enterprises
The bill also raises the cap from 10 to 100 on the number of participants allowed in a community solar venture. It would prohibit utilities from setting new requirements for installing a second meter at homes that already receive credit for energy they produce and put back onto the grid.
Green said the override vote is expected sometime in the last week of July.
“We had the votes the first time through — enough votes to override the veto — assuming we hold on to all the lawmakers who voted in favor the first time around,” Green said. “So I feel optimistic.” But there certainly remains work to be done in contacting our Maine lawmakers to make sure they remain strong in the face of very strong opposition from the governor.”
The legislation passed 105-41 in the House of Representatives and 29-6 in the Senate, giving supporters a cushion of two votes in the House and six in the Senate to maintain a two-thirds vote required for an override.
On the final day of the 2016 legislative session, however, defections by House Republicans allowed LePage to survive an override vote on his veto of a bill to increase the amount of solar-generated electricity in the state’s renewable energy portfolio.
PJM financial traders, who have been complaining for years that RTO rule changes and FERC enforcement have threatened their livelihood, now say they fear that Pennsylvania lawmakers may target them in efforts to close the state’s budget gap.
They say the situation might be different if PJM officials — who knew about a potential tax on virtual trades for nearly a month before bringing it to traders’ attention — had given them enough notice to develop a comprehensive response. Instead, they contend, PJM secretly supported the idea, then withheld that information when alerting stakeholders just weeks before the state’s budget deadline.
PJM has denied supporting the tax and says it followed its normal procedure in the matter.
Traders are hoping to head off the proposed tax this week, as state lawmakers attempt to close a $2.2 billion budget hole that has Standard and Poor’s threatening to downgrade the state’s already low credit rating.
No Rules
The incident has raised questions about when PJM should alert its membership about interactions with other organizations. The RTO currently has no rules on the subject and says that, up until now, stakeholders have always trusted its judgment in such matters.
The controversy also marks another chapter in an ongoing feud between PJM and Shawn Sheehan, president of XO Energy, who has accused RTO staff of bias against financial-sector stakeholders. (See Traders Deny FERC Charges; Seek Independent Review.)
Pennsylvania State Capitol Building
On June 26, Sheehan sent a letter to PJM questioning its “independence and neutrality” and complaining that RTO officials only belatedly informed traders of the proposed tax. “Virtual transactions have been under attack — throughout the PJM stakeholder process as well as by physical asset owners, load-serving entities, the Independent Market Monitor and now PJM,” he wrote.
Sheehan’s letter cited PJM’s proposals to impose deviation charges on UTCs and reduce the number of biddable locations for them before turning to what he said “appears to be a coordinated effort between PJM senior staff and members of the Pennsylvania state legislature that would result in a gross tax on virtual transactions in PJM.” (See PJM MRC OKs Uplift Solution over Financial Marketers’ Opposition.)
PJM, which said it has consistently opposed the tax proposal, said it was first contacted in January by Pennsylvania legislative staffers seeking general education on its markets.
CFO Suzanne Daugherty told RTO Insider that she receives “dozens” of similar inquiries each month. Alerting stakeholders to all those inquiries would create an “unmanageable” volume of information, she said, so stakeholders have always trusted the RTO’s judgment on what needs to be disclosed to them.
“It is actually very common for PJM to get requests at the state level,” Daugherty said. “We don’t always know that when we’re providing that education, why we’ve been asked for it or what the information might be used for.”
PJM was asked to provide the same information in May but with state Department of Revenue representatives in the room. It then became clear that the state was looking at PJM’s markets as a potential source of tax revenue, Daugherty said.
According to Daugherty, PJM officials told the staffers the RTO opposed any new taxes on its membership and presented them with information — such as potential jurisdictional issues — to support their position. “We thought there might have been some possibility that PJM’s points, along with any other discussions that might have occurred in Harrisburg, had dissuaded them from pursuing any additional tax,” she said.
Daugherty said the issue was then discussed at PJM’s Finance Committee meeting on May 15, although the agenda for the meeting doesn’t list the topic and the RTO has not posted any minutes. Three stakeholders who attended the Finance Committee meeting — GT Power Group’s Dave Pratzon, Gary Greiner of Public Service Enterprise Group and Pennsylvania Assistant Consumer Advocate David Evrard — confirmed the issue was discussed there.
Pratzon said the issue came up when he asked PJM to provide an update. He said he was not certain when or how he first learned of the proposal.
Evrard said PJM reported that it gave “Pennsylvania officials reason to believe that a tax on physical transactions was not feasible, but that whatever the rationale for that position was, it did not apply equally to virtual transactions.” He also confirmed that PJM indicated it was not advocating for the tax.
Narrowed Focus
However, legislative staffers returned in mid-June, announcing they had narrowed their interest to a potential tax on virtual financial transactions, such as UTCs. That’s when Daugherty began alerting financial stakeholders, including attorney Ruta Skucas, who represents the Financial Marketers Coalition.
Skucas said she received a call from Daugherty on June 13 and immediately alerted members of the coalition, including Wesley Allen of Red Wolf Energy Trading and XO General Counsel Carey Drangula. XO arranged a call the following day with Daugherty, who urged the company to contact state legislators “to try to put a stop to this,” Sheehan said in an interview. XO set up meetings with state legislators for the following week to oppose the idea.
Tracy Lawless, a government affairs adviser for XO’s lobbying firm, K&L Gates, said the idea began in the office of Senate Majority Leader Jake Corman (R), whose general counsel is Rik Hull, former counsel to state Public Utility Commissioner and FERC nominee Robert Powelson.
Lawless said the idea was delegated to Sen. Ryan Aument (R), a member of the Senate Finance Committee, whose chief of staff, Jake Smeltz, served as president of the Electric Power Generation Association between 2010 and 2014. Smeltz “was tapped to investigate various revenue ideas based on his industry experience,” Lawless said.
Through Aument’s receptionist, Smeltz declined to comment.
In his letter, Sheehan said that he was told that state officials had determined that although physical transactions could not be taxed — presumably because of federal jurisdiction over wholesale power sales — “virtual transactions could be subject to a levy because they are allegedly only transacted in Norristown, Pa., and allegedly do not have a direct connection to the physical grid.”
Sheehan said members of his company met with members of the legislature the prior week and “were surprised to learn from professional staff that the proposed tax was supported by PJM. There was also some suggestion that a tax on virtual transactions could help fund potential nuclear subsidies.”
Significant Opposition
If some senators remain interested, they seem to be on their own, according to tax opponents. “The House [of Representatives] wants nothing to do with supporting a virtual transaction tax,” Drangula said, relaying information she said she received from XO’s lobbyists.
“Any policy that makes it more expensive to buy or move energy in this state is a bad idea,” said Kevin Sunday, director of government affairs at the Pennsylvania Chamber of Business and Industry. “There’s no doubt higher electricity taxes will have a consumer impact, felt hardest by large industrials who go out and shop for their own power.”
However, financial traders aren’t assuming the idea is a dead letter.
The Republican-controlled General Assembly is struggling to find ways to pay for a $32 billion spending bill it approved last month. On Thursday, Standard and Poor’s said Pennsylvania’s credit rating — already one of the worst among the states — could be reduced further unless it shores up its finances.
On Monday, Gov. Tom Wolf (D) announced he would allow the bill to become law without his signature even though lawmakers haven’t resolved how to pay for it. Republicans previously rejected Wolf’s proposals to raise revenue, which included a tax on Marcellus Shale natural gas production.
“In the coming days, it is my hope that the General Assembly will come together to pass a responsible solution to balance our books,” Wolf said in a statement. “There are many options available to balance the budget in the long term like those I presented earlier this year. Our creditors and the people of Pennsylvania understand a responsible resolution must take real and necessary steps to improve Pennsylvania’s fiscal future.”
“That’s when this potential tax will be considered,” Skucas said. “It’s still very much live, and it will be under consideration.”
“A tax such as this could be dropped into a package of Pennsylvania tax code changes,” Drangula said. “If they were to go that route … we might see this in proposed legislation. … Even if this proposed tax slips through the cracks this time around, that doesn’t prevent it from resurfacing at some point in the future.”
Traders say they want to know why PJM took so long to tell anyone about the tax proposal.
CEO Andy Ott responded to Sheehan’s June 26 letter three days later, calling it “unfortunate” that XO came away with “misconceptions” about the RTO’s position. Sheehan doubled down, forwarding the board an email in which Drangula recounted her interactions with legislative staffers who she said told her they received “support” from PJM for the tax proposal and warned XO that “PJM speaks out of both sides of its mouth.”
In an interview, Drangula declined to name the staffers.
Sheehan also said that he has witnessed PJM staff take one position in private conversations and another one in public discussion.
“We can absolutely attest to that” occurring at least five times in the last four years, Sheehan said. He and Red Wolf’s Allen cited several negotiations involving the Energy Market Uplift Senior Task Force, including one in which they said PJM failed to tell the traders it was going to propose a package opposed to the traders’ interests the following day. On another occasion they said PJM abruptly pivoted from its recommendations in a whitepaper on virtual transactions, supporting an opposite plan at the last minute.
Daugherty echoed Ott’s comment that the traders’ accusation is “unfortunate” but couldn’t provide any explanation for where it might have originated. She and Denise Foster, PJM’s vice president of state and member services, have been involved in every correspondence or interaction on the issue and the RTO’s opposition has always been the message, she said.
According to Daugherty, PJM didn’t alert stakeholders earlier because, prior to mid-June, it wasn’t clear what the tax might look like or who might be affected. PJM has no rules in its Tariff, operating agreement or manuals regarding what or when it must disclose external interactions to stakeholders, she said. She added that PJM doesn’t plan to address this issue with stakeholders at any committee meetings.
“In the 20-plus years that PJM has been an ISO/RTO, we’ve used our judgment essentially without any member questioning of when we engage them on information that we’re sharing with states,” Daugherty said.
‘Core Values’
Sheehan and Allen aren’t satisfied with PJM’s judgment in this case.
“It’s only by word of mouth coming from other market participants that I heard about this when I did,” Allen said. “Otherwise, I wouldn’t have found out about it until XO’s letters to the board.”
Sheehan said part of his motivation for sending the June 26 letter was to raise awareness. Beyond posting the letters, PJM has made no other announcement about the issue either on its website or through communication channels.
“Whatever [PJM’s] five core values are, it seems that they have broken each one of those core values with this matter,” Sheehan said, referring to the RTO’s employee Code of Conduct, which lists as core values integrity, communication, accountability, respect and excellence.
Under communication, PJM staff pledge to “distribute information promptly to all who are affected” and to “proactively share information, expertise, processes and ideas openly and accurately.”
“I don’t remember ever authorizing PJM to negotiate or transact on the behalf of XO Energy,” Sheehan said. “I don’t know what is really true or what is not true, but had there been transparency during the process, we would all know what is true.”
FERC Litigation
In addition to his dustups with PJM, Sheehan has been involved in an expensive fight with FERC over the commission’s demand for $42 million in fines and disgorged profits from a company he previously led, Coaltrain Energy.
Coaltrain is one of at least three firms accused by FERC of market manipulation for profiting on line-loss rebates from what the commission called risk-free UTC trades in PJM (IN16-4). (See Traders Deny FERC Charges; Seek Independent Review.)
Coaltrain maintains that it didn’t manipulate the market, that its trading strategy wasn’t deceptive and that it didn’t engage in wash trades or try to affect market prices. The case is pending in the U.S. District Court for Southern Ohio (2:16-cv-00732).
PJM financial traders, who have been complaining for years that RTO rule changes and FERC enforcement have threatened their livelihood, now say they fear that Pennsylvania lawmakers may target them in efforts to close the state’s budget gap.
Pennsylvania State Capitol Building
They say the situation might be different if PJM officials — who knew about a potential tax on virtual trades for nearly a month before bringing it to traders’ attention — had given them enough notice to develop a comprehensive response. Instead, they contend, PJM secretly supported the idea, then withheld that information when alerting stakeholders just weeks before the state’s budget deadline.
PJM has denied supporting the tax and says it followed its normal procedure in the matter.
Traders are hoping to head off the proposed tax this week, as state lawmakers attempt to close a $2.2 billion budget hole that has Standard and Poor’s threatening to downgrade the state’s already low credit rating.
No Rules
The incident has raised questions about when PJM should alert its membership about interactions with other organizations. The RTO currently has no rules on the subject and says that, up until now, stakeholders have always trusted its judgment in such matters.
Sheehan
The controversy also marks another chapter in an ongoing feud between PJM and Shawn Sheehan, president of XO Energy, who has accused RTO staff of bias against financial-sector stakeholders. (See Traders Deny FERC Charges; Seek Independent Review.)
On June 26, Sheehan sent a letter to PJM questioning its “independence and neutrality” and complaining that RTO officials only belatedly informed traders of the proposed tax. “Virtual transactions have been under attack — throughout the PJM stakeholder process as well as by physical asset owners, load-serving entities, the Independent Market Monitor and now PJM,” he wrote.
Sheehan’s letter cited PJM’s proposals to impose deviation charges on UTCs and reduce the number of biddable locations for them before turning to what he said “appears to be a coordinated effort between PJM senior staff and members of the Pennsylvania state legislature that would result in a gross tax on virtual transactions in PJM.” (See PJM MRC OKs Uplift Solution over Financial Marketers’ Opposition.)
PJM, which said it has consistently opposed the tax proposal, said it was first contacted in January by Pennsylvania legislative staffers seeking general education on its markets.
CFO Suzanne Daugherty told RTO Insider that she receives “dozens” of similar inquiries each month. Alerting stakeholders to all those inquiries would create an “unmanageable” volume of information, she said, so stakeholders have always trusted the RTO’s judgment on what needs to be disclosed to them.
“It is actually very common for PJM to get requests at the state level,” Daugherty said. “We don’t always know that when we’re providing that education, why we’ve been asked for it or what the information might be used for.”
PJM was asked to provide the same information in May but with state Department of Revenue representatives in the room. It then became clear that the state was looking at PJM’s markets as a potential source of tax revenue, Daugherty said.
According to Daugherty, PJM officials told the staffers the RTO opposed any new taxes on its membership and presented them with information — such as potential jurisdictional issues — to support their position. “We thought there might have been some possibility that PJM’s points, along with any other discussions that might have occurred in Harrisburg, had dissuaded them from pursuing any additional tax,” she said.
Daugherty said the issue was then discussed at PJM’s Finance Committee meeting on May 15, although the agenda for the meeting doesn’t list the topic and the RTO has not posted any minutes. Three stakeholders who attended the Finance Committee meeting — GT Power Group’s Dave Pratzon, Gary Greiner of Public Service Enterprise Group and Pennsylvania Assistant Consumer Advocate David Evrard — confirmed the issue was discussed there.
Pratzon said the issue came up when he asked PJM to provide an update. He said he was not certain when or how he first learned of the proposal.
Evrard said PJM reported that it gave “Pennsylvania officials reason to believe that a tax on physical transactions was not feasible, but that whatever the rationale for that position was, it did not apply equally to virtual transactions.” He also confirmed that PJM indicated it was not advocating for the tax.
Narrowed Focus
However, legislative staffers returned in mid-June, announcing they had narrowed their interest to a potential tax on virtual financial transactions, such as UTCs. That’s when Daugherty began alerting financial stakeholders, including attorney Ruta Skucas, who represents the Financial Marketers Coalition.
Allen
Skucas said she received a call from Daugherty on June 13 and immediately alerted members of the coalition, including Wesley Allen of Red Wolf Energy Trading and XO General Counsel Carey Drangula. XO arranged a call the following day with Daugherty, who urged the company to contact state legislators “to try to put a stop to this,” Sheehan said in an interview. XO set up meetings with state legislators for the following week to oppose the idea.
Tracy Lawless, a government affairs adviser for XO’s lobbying firm, K&L Gates, said the idea began in the office of Senate Majority Leader Jake Corman (R), whose general counsel is Rik Hull, former counsel to state Public Utility Commissioner and FERC nominee Robert Powelson.
Smeltz
Lawless said the idea was delegated to Sen. Ryan Aument (R), a member of the Senate Finance Committee, whose chief of staff, Jake Smeltz, served as president of the Electric Power Generation Association between 2010 and 2014. Smeltz “was tapped to investigate various revenue ideas based on his industry experience,” Lawless said.
Through Aument’s receptionist, Smeltz declined to comment.
In his letter, Sheehan said that he was told that state officials had determined that although physical transactions could not be taxed — presumably because of federal jurisdiction over wholesale power sales — “virtual transactions could be subject to a levy because they are allegedly only transacted in Norristown, Pa., and allegedly do not have a direct connection to the physical grid.”
Sheehan said members of his company met with members of the legislature the prior week and “were surprised to learn from professional staff that the proposed tax was supported by PJM. There was also some suggestion that a tax on virtual transactions could help fund potential nuclear subsidies.”
Significant Opposition
If some senators remain interested, they seem to be on their own, according to tax opponents. “The House [of Representatives] wants nothing to do with supporting a virtual transaction tax,” Drangula said, relaying information she said she received from XO’s lobbyists.
“Any policy that makes it more expensive to buy or move energy in this state is a bad idea,” said Kevin Sunday, director of government affairs at the Pennsylvania Chamber of Business and Industry. “There’s no doubt higher electricity taxes will have a consumer impact, felt hardest by large industrials who go out and shop for their own power.”
However, financial traders aren’t assuming the idea is a dead letter.
The Republican-controlled General Assembly is struggling to find ways to pay for a $32 billion spending bill it approved last month. On Thursday, Standard and Poor’s said Pennsylvania’s credit rating — already one of the worst among the states — could be reduced further unless it shores up its finances.
On Monday, Gov. Tom Wolf (D) announced he would allow the bill to become law without his signature even though lawmakers haven’t resolved how to pay for it. Republicans previously rejected Wolf’s proposals to raise revenue, which included a tax on Marcellus Shale natural gas production.
“In the coming days, it is my hope that the General Assembly will come together to pass a responsible solution to balance our books,” Wolf said in a statement. “There are many options available to balance the budget in the long term like those I presented earlier this year. Our creditors and the people of Pennsylvania understand a responsible resolution must take real and necessary steps to improve Pennsylvania’s fiscal future.”
“That’s when this potential tax will be considered,” Skucas said. “It’s still very much live, and it will be under consideration.”
“A tax such as this could be dropped into a package of Pennsylvania tax code changes,” Drangula said. “If they were to go that route … we might see this in proposed legislation. … Even if this proposed tax slips through the cracks this time around, that doesn’t prevent it from resurfacing at some point in the future.”
‘Both Sides of its Mouth’
Traders say they want to know why PJM took so long to tell anyone about the tax proposal.
CEO Andy Ott responded to Sheehan’s June 26 letter three days later, calling it “unfortunate” that XO came away with “misconceptions” about the RTO’s position. Sheehan doubled down, forwarding the board an email in which Drangula recounted her interactions with legislative staffers who she said told her they received “support” from PJM for the tax proposal and warned XO that “PJM speaks out of both sides of its mouth.”
In an interview, Drangula declined to name the staffers.
Sheehan also said that he has witnessed PJM staff take one position in private conversations and another one in public discussion.
“We can absolutely attest to that” occurring at least five times in the last four years, Sheehan said. He and Red Wolf’s Allen cited several negotiations involving the Energy Market Uplift Senior Task Force, including one in which they said PJM failed to tell the traders it was going to propose a package opposed to the traders’ interests the following day. On another occasion they said PJM abruptly pivoted from its recommendations in a whitepaper on virtual transactions, supporting an opposite plan at the last minute.
Daugherty echoed Ott’s comment that the traders’ accusation is “unfortunate” but couldn’t provide any explanation for where it might have originated. She and Denise Foster, PJM’s vice president of state and member services, have been involved in every correspondence or interaction on the issue and the RTO’s opposition has always been the message, she said.
According to Daugherty, PJM didn’t alert stakeholders earlier because, prior to mid-June, it wasn’t clear what the tax might look like or who might be affected. PJM has no rules in its Tariff, operating agreement or manuals regarding what or when it must disclose external interactions to stakeholders, she said. She added that PJM doesn’t plan to address this issue with stakeholders at any committee meetings.
“In the 20-plus years that PJM has been an ISO/RTO, we’ve used our judgment essentially without any member questioning of when we engage them on information that we’re sharing with states,” Daugherty said.
‘Core Values’
Sheehan and Allen aren’t satisfied with PJM’s judgment in this case.
“It’s only by word of mouth coming from other market participants that I heard about this when I did,” Allen said. “Otherwise, I wouldn’t have found out about it until XO’s letters to the board.”
Sheehan said part of his motivation for sending the June 26 letter was to raise awareness. Beyond posting the letters, PJM has made no other announcement about the issue either on its website or through communication channels.
“Whatever [PJM’s] five core values are, it seems that they have broken each one of those core values with this matter,” Sheehan said, referring to the RTO’s employee Code of Conduct, which lists as core values integrity, communication, accountability, respect and excellence.
Under communication, PJM staff pledge to “distribute information promptly to all who are affected” and to “proactively share information, expertise, processes and ideas openly and accurately.”
“I don’t remember ever authorizing PJM to negotiate or transact on the behalf of XO Energy,” Sheehan said. “I don’t know what is really true or what is not true, but had there been transparency during the process, we would all know what is true.”
FERC Litigation
In addition to his dustups with PJM, Sheehan has been involved in an expensive fight with FERC over the commission’s demand for $42 million in fines and disgorged profits from a company he previously led, Coaltrain Energy.
Coaltrain is one of at least three firms accused by FERC of market manipulation for profiting on line-loss rebates from what the commission called risk-free UTC trades in PJM (IN16-4). (See Traders Deny FERC Charges; Seek Independent Review.)
Coaltrain maintains that it didn’t manipulate the market, that its trading strategy wasn’t deceptive and that it didn’t engage in wash trades or try to affect market prices. The case is pending in the U.S. District Court for Southern Ohio (2:16-cv-00732).
VALLEY FORGE, Pa. — Progress in PJM’s special session of the Market Implementation Committee on distributed energy resources has reached a point where details matter.
Stakeholders spent much of the group’s meeting on Friday clarifying definitions, debating whether certain terms should be used and delineating what is in and out of the group’s scope.
“Just because something’s not in the Tariff doesn’t mean it’s not a defined term used in the business and a good utility practice,” Calpine’s David “Scarp” Scarpignato said. “Some of these are recognized terms from an engineer’s standpoint.”
Among the questions is whether the aggregation rules will focus on grouping small projects to reach the 100-kW minimum for participating in PJM markets or expand to cover grouping multiple larger projects that are at the same site.
“In my mind, we were talking about aggregation mostly to meet that market threshold,” said Drew Adams of A.F. Mensah. “It sounds like the aggregation discussion has expanded a little bit beyond that.”
During the discussion, stakeholders largely agreed that electric distribution companies should retain a substantial amount of control over project approval, such as defining the size, location and type of aggregation projects they will accept.
John Farber of the Delaware Public Service Commission said the group should also decide rules on whether projects can cross distribution service territories. He said it will be important to consider how electric vehicles are handled because definitions that are too restrictive could inhibit their development.
“I’m not sure how these resources are going to develop, but I’m hesitant to develop rules that are too restrictive,” Farber said.
PJM staff also presented an informal poll to determine stakeholder interests in how DER is incorporated into ancillary services markets. PJM’s Andrew Levitt said one consideration will be how much visibility the RTO should have into resources that operate behind a load. When it sells into the wholesale markets, PJM will be able to monitor its performance. However, when it is simply reducing the owner’s load, the current rules don’t provide the same information.
Levitt presented a proposed rule to require submetering of DERs at the resource before it’s tied to the load.
“This is the most substantial change in the whole proposal,” Levitt said. “Your performance of ancillary services would be measured at the DER rather than measured at the point of interconnection, as it would be under the status quo.”
The group has no meetings planned until August, when it will meet three times.
The most significant innovation in FERC Order 1000? Transmission competition.
Where and when transmission competition is properly implemented, it is a staggering success. Consider a recent PJM “window” seeking solutions to reliability and congestion needs.
One such need was relief of high congestion on a transmission corridor between Pennsylvania and Maryland where low-cost natural gas generation from Pennsylvania hits a bottleneck. PJM received 44 proposals from nine separate entities, proposing solutions ranging in cost from $6 million to $192 million.[1]
Before transmission competition, it was like the color of a Model T. You could have any solution you wanted as long as it was the transmission owner’s solution.[2]
And TOs never have had an incentive to find the most cost-effective solution, for reasons brilliantly explained by Montana Public Service Commissioner Travis Kavulla in his recent American Affairs article:[3]
This so-called cost-of-service regulation suggests to the utility that it should spend as much as possible, even when less might do. The barometer for whether an investment is wise for a utility is not capital productivity, but whether expenditures will be disallowed by the regulator. This seldom occurs. Indeed, the legal presumption that governs the arcane, trial-like proceedings of utility commissions is that all utility spending is prudent. A utility earns a return even on the cost of decorating the C-suite.
Investment funds understand this dynamic perfectly. Their analysis often simply celebrates more and more capital investment (“ratebase” or “capex” in industry lingo), with little attention to the underlying value it delivers to customers. One recent investor note by UBS on the New Jersey utility PSEG was titled “More Ratebase Please.”
The other good news about the advent of transmission competition is how little it costs to implement. Last year it cost PJM $451,610 to administer its Order 1000 proposal windows; project sponsors paid proposal fees of $490,000.[4] So PJM stakeholders made money implementing competition.[5]
The bad news is that there is very little of this good thing. The scope of transmission competition has become severely restricted. If you look at the pie chart below, only the palest blue slice — less than 10% of the cost of transmission projects in PJM in 2016 — had competition.[6]
The exceptions to transmission competition have swallowed more than 90% of the rule.[7] The biggest exception — $899 million in PJM last year — is “Supplemental” projects, which by definition are projects that PJM itself does not consider needed. The TOs have the unilateral right to build whatever they’d like, as long as they tell PJM what they are doing.
Under this exception, billions of dollars are being spent based on TO claims of “aging infrastructure,” but no one knows if those billions materially improve reliability. Indeed, a Lawrence Berkeley National Laboratory study found no statistical correlation between transmission (and distribution) spending and reliability.[8]
Obviously, at some age transmission lines would fall down and affect reliability, but there are few instances of that happening. There are many causes of outages (severe weather, lightning, human error, misoperations, and even metallic balloons and squirrels).[9]
This enormous transmission spending beyond PJM’s purview reverses the situation from 10 years ago when the vast bulk of transmission spending in the RTO was what it determined was needed.[10]
The TO exclusives seem to be falling into a regulatory gap, as states seem to assume that PJM is reviewing all this. But PJM only has oversight over Order 1000 projects and “Immediate Need” projects, and only uses competitive windows for the former.
And, unbelievable as it may seem, PJM seems to be the best of the RTOs.
In ISO-NE, “Immediate Need” and other exceptions appear to have swallowed the rule entirely.[11] The section of the ISO-NE webpage listing competitive transmission RFPs is … empty.[12]
In MISO, the allocation of transmission costs was changed so that virtually all transmission projects qualify for the “local” exception. How many projects have been subject to competition? That loneliest number: One.
States (and others) are increasingly concerned about the explosion in transmission costs,[13] but one simple step states could take on their own is to require, as a condition of the state certificate and/or rate recovery process, that all projects costing more than some threshold be subject to an Order 1000 window. FERC could do the same as a condition of cost flow through in FERC-jurisdictional transmission rates. This would not solve the problem of unwarranted projects, but it would help mitigate the carte blanche in spending on such projects.[14]
Bottom line: Transmission competition works great when properly implemented. But it’s been severely limited. We need more of the good thing.
Steve Huntoon is a former president of the Energy Bar Association, with 30 years of experience advising and representing energy companies and institutions. He received a B.A. in economics and a J.D. from the University of Virginia. He is the principal in Energy Counsel, LLP, www.energy-counsel.com.
By the way, there is a right way and a wrong way to implement transmission competition. PJM identifies transmission “needs” and requests proposals to address these needs (the “sponsorship model”). As a result, PJM gets wide-ranging, solution-based proposals (in the example I gave, projects ranging from $6 million to $192 million). In contrast, CAISO identifies specific projects and requests proposals to build those specific projects (the “procurement model”). Thus, CAISO totally misses the opportunity for competitors to offer solutions that may cost a fraction of what the ISO thinks best. ↑
This renders inexplicable an RTO claim that transmission competition is not worthwhile because of “staff headaches.” (See PJM, SPP Chiefs Share Frustration with Order 1000.) When potential savings are in the billions, and the cost of implementation is in the hundreds of thousands, the benefit-to-cost value proposition — at least for customers — is self-evident. ↑
It should be noted that going forward, the exceptions are expanding with the exclusion of facilities below 200 kV and of upgrades to substation equipment (except transformers). So the less than 10% of transmission spend subject to competition will get even smaller. ↑
SACRAMENTO — As CEO of the Independent Energy Producers Association (IEPA), Jan Smutny-Jones has had a front-row seat in the California energy debate since 1987. IEPA represents independent energy producers including biomass, geothermal, small hydro, solar, wind, cogeneration and natural gas-fired merchant facilities, with offices just a block from the state capitol.
Smutny-Jones is an advocate for Secure California’s Energy Future, a campaign urging the State Legislature to expand CAISO’s market into other areas of the West. But some members of the State Assembly and market participants want the state to go slow on regionalization, which would require bringing representatives from other states onto the ISO’s Board of Governors. (See California Lawmakers Take Up CAISO Expansion.)
Electricity planning has changed greatly since his youth, when he watched offshore oil tankers supplying the Huntington Beach power plant as he body-surfed. But renewable generation is a decades-old concept in California, as is Western regional market coordination. There has been a lot of public debate about California’s aggressive renewable policies, but environmentally conscious planning has long been a hallmark in the Golden State for decades, Smutny-Jones says.
“Where we are today in terms of the discussion, it actually has a pretty long pedigree,” he said in a recent interview. “It isn’t like we just cooked this up in AB 32 or whatever.” Assembly Bill 32, the Global Warming Solutions Act of 2006, was a landmark law requiring the state to reduce its greenhouse gas emissions to 1990 levels by 2020.
The 2015 Clean Energy and Pollution Reduction Act, which established the state’s 50% by 2030 renewable portfolio standard, also directed the state’s energy agencies to explore transforming CAISO into a regional entity to help meet its clean energy target. More recently, the State Senate approved a bill setting a 100% renewable generation goal by 2045, the latest example of the state’s aggressive approach toward clean energy and climate change. (See California Senate Passes Bill Mandating 100% RPS.) The Assembly Committee on Utilities and Energy is due to review the legislation July 12.
Because the CAISO board is not a policymaking body but follows state policies, some lawmakers and industry stakeholders worry that regionalizing the ISO will dilute the state’s influence on the direction of energy planning, Smutny-Jones said. And other states such as Wyoming and Utah don’t want to be forced to conform to California energy policies if control of their transmission infrastructure is turned over to a regional ISO.
The Sierra Club says that if PacifiCorp’s Utah-based coal generation is brought into CAISO, for example, it will bring coal-fired power into the state, and the environmental group is pressuring the company to retire the assets. But PacificCorp in recent years has instead been investing in the plants.
IEPA Has Represented Solar Power Developers For Decades | Cubit Power Systems
“If we are expecting other states to respect California’s procurement policies, California has to be cognizant of the fact that Utah is not going to start prematurely shutting down coal plants — costing lots of money to its ratepayers — based on trying to expand the ISO,” Smutny-Jones said. Most utilities in the West are moving away from coal-fired power anyhow, so there isn’t much concern that regionalization will bolster coal generation, he said.
Building trade groups and elected officials are concerned about exporting jobs if renewable generation is shifted to other states. But lack of transmission will create a need for California-based generation, he said, and there are other land-use laws that will reduce development of utility-scale renewable generation in Western desert areas.
The list of groups supporting the regionalization plan includes Natural Resources Defense Council, Sierra Business Council, Solar Energy Industries Association, SunPower, Silicon Valley Leadership Group, and Union of Concerned Scientists.
Regionalization could help California’s natural gas-fired plants stay in business and make the market more efficient across the West, he said. The abundance of solar has put pressure on the state’s natural gas plants by changing the operational profile of the grid. In 2008, there was only about 300 MW of utility-scale solar in the state, but that figure has reached almost 10,000 MW as the cost of photovoltaics has come down and the state adopted its RPS. This has changed the operating profile for natural gas plants that are not receiving the price signals to stay in business.
“There are significant challenges in the market right now,” he said, adding that he is concerned that power plant owners will start shutting down plants and affect reliability. This will be a long-term issue that must be dealt with, he said.
Regardless of the state’s policies, a primary attraction for California renewable generation in a regional context is that it is now inexpensive, Smutny-Jones said.
“I don’t think Utah necessarily wants to buy power from California because it’s green and the right thing to do, but they will buy it if it’s cheap.”
California electricity sellers are cautiously supportive of CAISO’s proposal to permanently assume authority to limit output from gas-fired generators as an emergency response to possible limitations on gas deliveries.
But the ISO’s Department of Market Monitoring (DMM) said the grid operator has not fully justified its gas-electric coordination straw proposal and concerns need to be addressed before it would recommend approval by the Board of Governors or FERC.
CAISO last month proposed imposing the gas-electric coordination measures across both the ISO and the Western Energy Imbalance Market (EIM). (See Plan Would Apply Aliso Canyon Measures Across CAISO, EIM.) The curtailments previously were limited to the area in Southern California affected by the massive gas escape from Aliso Canyon, which since October 2015 has been subject to ongoing withdrawal restrictions.
Southern California Gas’ Aliso Canyon Storage Facility | California Governor’s Office of Emergency Services
“The draft final proposal does not address many of the key concerns from the straw proposal highlighted by DMM,” the Monitor said. While the ISO has said the constraints have been effective, it “has not provided much analysis or explanation as to how well the constraints worked.”
The department said its support of gas price scalars used to distinguish resources affected by the gas limitations from the rest of the ISO market areas is dependent on the results of its analysis as to whether they are warranted. The scalars would be applied to the next-day gas index published the morning of the day-ahead market run to calculate cost estimates.
Power sellers are evaluating the effect of the measures, which target not only Aliso Canyon but other storage and delivery constraints on the system. Natural gas can be diverted to address heating needs, as it was over four days in January when CAISO constrained gas plant output.
In comments filed with CAISO, Portland General Electric (PGE) — which will join the EIM in October — said “this administrative measure needs to be characterized in the filing as a last-resort option, deployable for the specific purpose of maintaining system reliability during outlier events.” Market-based solutions are preferable, and the utility requested that the ISO work on needed price formation and bidding enhancements.
SCE’s Mountainview Natural Gas-Fired Plant, Redlands | Edison International
PGE asked what would be the likely effect of the policy on LMPs, as well as whether it would undermine market participants’ ability to manage risk. PGE and Pacific Gas and Electric both wondered what exact events or evaluations would cause the constraints to kick in.
The Western Power Trading Forum said: “The ISO’s explanation as to why extending the Aliso Canyon measures to the entire footprint would help to protect reliability under certain extreme conditions is reasonable; however, it should be noted that no other ISO has such authority to disrupt the market in such a way, and that under the EIM, the individual balancing authorities remain responsible for ensuring the reliability of their system.” The group said its support is contingent on the scalars remaining at the current place and across the entire EIM footprint.
The California Public Utilities Commission is also exploring whether to shut down Aliso Canyon entirely. (See Study to Weigh Aliso Canyon Shutdown.) Residents near the facility still complain about health problems they say are associated with the leak, putting more pressure on elected officials and regulators to respond to the local impact.
A federal appeals court Friday slapped down FERC for overstepping its authority in a ruling forcing PJM to abandon a stakeholder compromise on market power rules.
The D.C. Circuit Court of Appeals decision remanding FERC’s order eliminates portions of PJM’s minimum offer price rule that have been in place since 2013 and orders the commission to review its decisions on the topic (15-1452).
The court determined that FERC exceeded its “passive and reactive role” under Section 205 of the Federal Power Act when it denied a 2012 proposal by PJM to revise its MOPR provisions but suggested additional revisions that it would accept.
Kavanaugh | Harvard Law School
Section 205 requires FERC to accept proposed rate changes as long as they are just and reasonable, allowing the commission to suggest only “minor” changes, the court said in an opinion written by Judge Brett Kavanaugh. “Section 205 does not allow FERC to suggest modifications that result in an entirely different rate design than the utility’s original proposal or the utility’s prior rate scheme.”
PJM’s proposal would have replaced the unit-specific MOPR exemption with two new ones and extended the mitigation period from one to three years before a unit could bid below the price floor. The change was prompted by generators’ concerns that the unit-specific review, which allowed units to prove confidentially to PJM that its costs were below the required minimum offer, lacked transparency and allowed below-cost bids.
In exchange for eliminating the exemption, load-serving entities won an agreement for two new exemptions: a competitive-entry exemption for units that are unsubsidized or subsidized through a non-discriminatory, state-sponsored procurement process and a self-supply exemption for units intended to meet a portion of an LSE’s needs.
Widely Supported
The compromise proposal was widely supported by PJM stakeholders — the first time that a significant MOPR revision had won a two-thirds sector-weighted vote, the court noted.
Nevertheless, FERC rejected the proposal in May 2013, saying it discouraged new entry because the exemptions were too narrow and the mitigation period was too long (ER13-535). However, it indicated it would accept the proposal if the unit-specific review were retained and the mitigation period remained unchanged. PJM agreed in a compliance filing adopting FERC’s changes. (See FERC OKs PJM MOPR Exemptions; Rejects End to Unit-Specific Review.)
A dozen stakeholders requested rehearing: NRG Energy, FirstEnergy, the PJM Power Providers Group (P3), Calpine, Exelon, PPL, Public Service Enterprise Group, the Illinois Commerce Commission and consumer advocates from New Jersey, Maryland, Delaware and D.C. (See FERC won’t Rehear PJM MOPR Ruling.)
When FERC declined rehearing, NRG Power Marketing, GenOn Energy Management and P3 petitioned the D.C. Circuit to review the order. On Friday, the court agreed that FERC “exceeded its authority” by suggesting the modifications that it would approve, even though PJM agreed to them, because that proposed an “entirely new rate scheme.”
Compromise ‘Eviscerated’
Additionally, the court said FERC “largely eviscerated” the compromise that had gotten the original proposal through PJM’s stakeholder process. The court noted that PJM asked FERC to approve the filing “not as a list of discrete Tariff changes, but as a hard-fought compromise package.”
“PJM’s proposal would have narrowed the availability of exemptions to the price floor for some generators that, in the view of some of PJM’s stakeholders, posed a high risk of price suppression,” Kavanaugh wrote. “But FERC’s proposed modifications went in the opposite direction. FERC’s modifications expanded the exemptions by layering the two new exemptions on top of unit-specific review and by exempting certain new generators from the price floor after one year instead of after three years. Indeed, FERC’s modifications expanded the scope of the exemptions not just beyond PJM’s original filing, but beyond the scope of the exemptions as they had stood before PJM’s filing.
“Because of FERC’s modifications, some generators can now claim exemptions from the price floor even if they cannot demonstrate that their costs fall below the price floor,” he continued. “In other words, due to FERC’s modifications, PJM’s previous case-by-case methodology no longer controls.”
PJM Agreement Irrelevant
The fact that PJM agreed to FERC’s suggestions “does not cure the harms” to its stakeholders, the court said.
“When FERC imposes an entirely new rate scheme in response to a utility’s proposal, the utility’s customers do not have adequate notice of the proposed rate changes or an adequate opportunity to comment on the proposed changes,” it said. “Generators and load-serving entities had an opportunity to comment on the original compromise proposal submitted by PJM. But they did not have an opportunity to comment on FERC’s modifications before FERC issued its decision.”
NRG was pleased with the ruling.
“This decision effectively calls for a rewrite of market rules that effectively allowed new entrants to distort the energy and capacity markets by subsiding new entry,” spokesman David Gaier said. “We’re hopeful that any new rules will level the playing field and support fair and equitable electricity markets for all generating resources.”
