Professional Documents
Culture Documents
NM PRC Recusal Motion Re Montoya and Lyons 242 Pgs
NM PRC Recusal Motion Re Montoya and Lyons 242 Pgs
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PUBLIC SERVICE COMPANY OF NEW
MEXICO,
Applicant.
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MOTION AND SUPPORTING BRIEF OF NEW ENERGY ECONOMY FOR
RECUSAL OF PUBLIC REGULATION
COMMISSIONERS MONTOYA AND LYONS
New Energy Economy (NEE) requests tlhat Public Regulation Commissioners Karen Montoya
and Patrick Lyons sitting on the Public Regulation Commission (PRC) recuse themselves from
participating in or deciding the above-captioned matter. The grounds for this Motion are as
follows:
Applicable Standard
1.
New Energy Economy now takes the extraordinary step of moving for the recusal
of two members of the PRC, Patrick Lyons and Karen Montoya, because of the evidence of exparte contacts during the course of this proceeding and immediately preceding PNMs filing that
in some cases directly concern issues in this case and in other cases are likely to have concerned
issues in this case. In addition, with very limited discovery of information, NEE has been able to
show that there are ongoing and regular contacts, both social and professional, between senior
management and lobbyists of PNM and these two commissioners that create the appearance of a
conflict of interest sufficient to disqualify them. In order to further support this motion and to
understand the extent of the ex parte contacts between PNM and PRC Commissioners, NEE
served interrogatories and document requests on PNM to obtain any communications between it
and PRC commissioners but PNM refused to respond, claiming that the requests were not
calculated to lead to the discovery of admissible evidence. See NEEs Seventh Set of
Interrogatories and Requests for Production to PNM and PNMs response of December 22, 2015.
NEE has initiated first steps necessary figr a Motion to Compel, but believes that, out of caution,
it should file this motion promptly and before the hearing begins so that its position is known by
the affected commissioners and PNM.
2.
PRC adjudications are governed by the same due process protections and
Under New Mexico law, PRC Commissioners must meet an objective standard of
impartiality:
The inquiry is not whether the Board members are actually biased or
prejudiced, but whether, in the natural course of events, there is an
indication of a possible temptation to an average man [or woman] sitting
as a judge to try the case with bias for or against any issue presented to
him [or her].
Id., quoting Reid v. New Mexico Bd. of Exam rs in Optometry, 92 N.M. 414, 416, 589 P.2d 198,
1 20.1.1.111NMAC addressing impartiality: "No board member shall participate in any action in
which his or her impartiality of fairness may reasonably be questioned..."
200 (1979). Presiding board members ":must act like a judicial body bound by ethical standards
comparable to those that govern a court in performing the same function." Id. (emphasis added)
(quoting High Ridge Hinkle Joint Venture, 119 N.M. at 40, 888 P.2d at 486), Los Chavez
CommunityAssn v. Valencia Cty., 277 P.3d 475,482-83 (N.M. Ct. App. 2012). Our Supreme
Court has determined it to be "imperative" that when governmental agencies adjudicate the legal
rights of individuals they "use the procedures which have traditionally been associated with the
judicial process." Reidv. N.M. Bd. of Examrs in Optometry, 92 N.M. 414, 416, 589 P.2d 198,
200 (1979). And, while such procedural matters as the rules of evidence or hearsay need not be
adhered to by administrative agencies to the same degree as in a court of law, the right to an
impartial tribunal is held to the higher standard.
The rigidity of the requirement that a tribunal be impartial and disinterested in the result
applies more strictly to an administrative adjudication where many of the customary safeguards
affiliated with court proceedings have, in the interest of expedition and a supposed administrative
efficiency, been relaxed. Id.; see also Ohio Bell Tel. Co. v. Pub. Utils. Commn, 301 U.S. 292,
304, 57 S.Ct. 724, 81 L.Ed. 1093 (1937) (suggesting that in the adjudicative role of
administrative agencies: "All the more insistent is the need, when power has been bestowed so
freely, that the inexorable safeguard of a fair and open hearing be *483 maintained in its
integrity." (internal quotation marks and citations omitted)). Los Chavez Community Assn v.
Valencia County 277 P.3d 475,482 -483 (N.M.App., 2012) Based on the available evidence and
the objective standard of impartiality, Commissioners Montoya and Lyons should recuse
themselves.
4.
violation of the code of conduct adopted by the commission." Commissioners, like Board
members, must follow the codes of conduct and rules of procedure of their own administrative
bodies. Atlixco Coalition v. County of Bernalillo, 1999 NMCA 88, 16. According to the PRC
Code of Conduct, a Commissioner is required to:
Obey both the letter and the spirit of all laws and regulations; [...]
a)
While recognizing that some laws may be subject to varying interpretations,
c)
strive nonetheless to implement the spirit and purpose of each law; [...]
f) Treat the office of Commissioner as a public trust by using the powers of the
office solely for the benefit of the public rather than for any personal benefit; [... ]
Both Commissioners Montoya and Lyons took an Oath of Ethical Conduct, which in part states:
"I shall scrupulously avoid any act of impropriety or any act which gives the appearance of
impropriety." See Exhibit A.
5.
Exhibit 1 provides ample evidence of both acts of impropriety and acts that give
and PNM representatives that may have occurred on one of the Commissioners landlines or
personal cell phone. Nor do they include communications with any other staff, consultants,
lobbyists or other representatives of PNM.
Calls to or from Commissioner Lyons PRC-issued cell phone and the numbers of a few
identified PNM representatives:
July 30, 2014 - Call between PRC Commissioner Lyons and Senior Vice
President for Public Policy Ron Darnells cell (505.362.5075)
June 24, 2014 - I_,yons and Ron Darnells cell (2 separate calls); 10:50am
(PNM RCT hearing scheduled from 9am to 1:30pm) and at 5pm same day3
June 11, 2014 - Director Strategic Affairs Mary Collins cell
(505.242.2010)
3 Note that two calls on June 24, 2014 occurred on exactly the same day as a formal hearing on
PNMs petition to amend the rule on Reasonable Cost Threshold (RCT) of the renewable
portfolio standards. In fact, one call happened in the middle of the hearing itself.
complaints or outages. Together, they clearly demonstrate a close relationship between these
two Commissioners and PNM that clearly violates both the letter and the spirit of the law.
a.
Policy for PNM, sent July 21, 2014 to Commissioner Karen Montoya, referencing
a phone conversation about Rule 111 (d) [itself a significant issue in this
proceeding], with an attached "white paper on 111 (d)." Exhibit 2 will be
discussed in further detail below.
b.
In Exhibits 6, 7 and 9, Mr. Lara seeks input and advice from PNMs
Mr. Lara, provides draft :notes and a PowerPoint presentation to Ms. Collins
(Exhibits 8, 10 and 11), and specifically indicates (p. 5 of Exhibit 8): "Your
thoughts on this debate and its impact on this new method of power generation
and transmission I think would dovetail well into this panel." In other words,
Commissioner Montoya, who was to provide a regulatory perspective, turned to
PNM - a member of"the industry" - to assist her on settling on what her
regulatory perspective should be.
d.
Montoya needs PNM, tbxough Ms. Collins, to help prepare, this time for the Law
Seminar International "Energy in the Southwest" Conference.
e.
assistant, Mr. Lara, and PNMs Collins where Mr. Lara indicates "the
Commissioner asked that I get with [Ms. Collins] to assemble some background
research on a few topics so she can lead the discussion." These topics include
distributed generation and the diversity portfolio. The initial request further asks
whether it would "be best to get together to go over some of these topics or do
you [Ms. Collins] want to send me [Mr. Lara] stuff." Ms. Collins responds that
she will "pull together so:me information" and then they can "get together to
review." The remainder of the exchange is about scheduling the "study session"
with Commissioner Montoya. PNMs views on the topics discussed are in most
cases adverse to the views of environmental groups and to the views of many
thousands of members of the public. What is of such concern regarding this and
the previous interchanges is the implicit assumption that PNMs views and
Commissioner Montoyas views are essentially the same.
f.
Ms. Collins progress, and Ms. Collins responds, "I have been working on it." She
also attaches graphics specifically for use in the presentation (Exhibits 14 - 17;
Exhibit 15 is a photo of PNMs solar project).
g.
the PowerPoint presentation, presumably for her input. The email and
PowerPoint presentation are attached as Exhibits 18 and 19). The powerpoint
discusses regional haze and the San Juan closure and includes, as part of
Commissioner Montoya s presentation, what are really PNMs views on a number
of topics, including, for example, PNMs supposed need to recover lost revenue
from roof-top solar installations. ["Priority Three: Action Priorities" Exh. 19]. In
other words, it states PNMs perspective including PNMs disdain for solar
distributed generation and the alleged disadvantages of PNM for customer owned
solar. It also highlights PNMs legislative talking points, which were the subject
of other emails.
h.
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are an email and attachment sent by Ron Darnell to Commissioner Montoya about
legislation that had not yet been introduced. The attachment (Exhibit 22) includes
both PNM talking points and a legislative draft of what would become HB296
when it was introduced approximately one week later. After the bill was
introduced, Mr. Darnell fbrwarded a favorable news article on the bill to
Commissioner Montoya (Exhibit 23) and a link to the legislative website entry for
HB 296 to Commissioner Lyons (Exhibit 24).
j.
release (Exhibit 26) hailing the decision of Arizonas public utility commission to
amend their net metering policies to discourage distributed generation of solar
energy.
1.
emails Gerard Ortiz, PNM Vice-President of Regulatory Affairs, for his cell
phone number (Exhibits 27 and 28).
m.
Montoya on net metering and PNM concerns with "distributed generation and the
impact on PNM," which is an issue in the case herein and now an issue in front of
the PRC in PNMs current rate case, 14-00332-UT. She sent several emails to
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p.
Commissioner Montoya is scheduled to meet with Mr. Ortiz on June 20, 2013 and
with Mr. Darnell at his office in Albuquerque for two hours on July 25, 2013 and
again on August 30, 20134.
q.
Collins: "You know, I think Mary [Collins] might have gone to a baseball game
with Karen to help her out when she was on crutches." "I believe Mary Collins
has golfed in a foursome with Karen Montoya."Darnell Deposition, at pp. 79,
80.
ro
4 Before PNM filed its Application, on October 29, 2013, Mariel Nanasi and David Van Winkle,
of New Energy Economy met with Cormnissioner Montoya, and discussed general opposition to
further reliance on coal and nuclear and a preference for solar and wind. Unknown to Nanasi and
Van Winkle were the contents of PNMs filing, other than what was disclosed at public IRP
meetings, and New Energy Economy had not yet determined to intervene in the case herein.
13
other elected officials. Section 8-8-19 NMSA 1978 addresses acts prohibited of Commissioners
and Commission candidates.
C. A candidate for election to the public regulation commission shall not
solicit or accept:
(1) anything of value, either directly or indirectly, from a person
whose charges for services to the public are regulated by the commission. For the
purposes of this paragraph, "anything of value" includes money, in-kind
contributions and volunteer services to the candidate ...
D. A commissioner or employee of the commission shall not:
(1) accept anything of value from a regulated entity, affiliated
interest or intervenor. For the purposes of this paragraph, a commissioner may
accept allowable campaign contributions when campaigning for reelection. For
the purposes of this paragraph, "anything of value" does not include:
(a) the c, ost of refreshments totaling no more than five dollars
($5.00) a day or refreshments at a public reception or other public social function
that are available to all guests equally;
7.
Without discovery from PNM, it is not possible to know the extent to which these
provisions have been violated. However, all of the materials, resources and guidance Ms.
Collins provided to Commissioner Montoya constitute "value," especially since "anything of
value" in the previous paragraph is defined as in-kind and volunteer services. Given the specific
14
Exhibit 41 is a September 25, 2014 email from Cindy Edwards, Assistant to Mr.
Darnell, to Mr. Rippy, Assistant to Commissioner Lyons. The email references a dinner Mr.
Darnell had the previous month with the Commissioner and the Commissioners sister and
brother-in-law and requests the names of the Commissioners relatives.
Ex Parte Communications
9.
from state action that leads to "deprivations of liberty and property without due process of law."
Mills v. State Bd. of Psychologist Examrs, 1997-NMSC-028, 14, 123 N.M. 421,941 P.2d 502.
The New Mexico Constitutions Due Process Clause echoes the federal one: "No person shall be
deprived of life, liberty or property without due process of law[.]" N.M. Const. art. II, 18.
"Procedural due process requires a fair and impartial hearing before a trier of fact who is
disinterested and free from any form of bias or predisposition regarding the outcome of the
case." New Mexico Brd. of Veterinary Med. v. Riegger, 2007-NMSC-044, 27, 142 N.M. 248,
164 P.3d 947 (internal quotation marks and citation omitted). These principles of fairness are
basic to our justice system. Los Chavez Community Assn v. Valencia County 277 P.3d 475,482 483 (N.M.App., 2012)
10. According to 1.2.3.7 NMAC F and 1.2.3.8 A. NMAC ex parte communications
between Commissioners and a party during a pending adjudication is prohibited:
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F. pending adjudication means any matter docketed, or, in the case of a party
represented by counsel, any matter that an attorney representing such party reasonably believes
will be docketed, before the commission, including, but not limited to, formal complaint
proceedings, show cause proceedings, investigations, notices of inquiry other than nonadjudicatory notices of inquiry, application proceedings, petitions, and any matter other than a
rulemaking or a non-adjudicatory notice of inquiry requiring decision or action by the
commission.[ 1.2.3.7 NMAC - N, 7-15-04; A, 9-1-08]
11. Exhibit 2 is an email from Mr. Damell, sent July 21, 2014 to Commissioner Montoya, that
references a phone conversation about Rule 111 (d) and attaches a white paper on 111 (d), the
federal greenhouse gas rule that is a critical issue of debate in PNMs case at the PRC on its
proposed replacement power plan. In the email and attachment, Mr. Darnell is clearly trying to
improperly influence Commissioner Montoya about PNMs point of view about the rule, which
is included here as Exhibit 42. There is no doubt that the Clean Power Plan, aka Rule 111 (d), is
an issue in the case herein. Numerous witnesses have referred to this issue, with PNMs
witnesses arguing that the company is "well-positioned" to address it because the company is
shutting down two of the four coal units at San Juan, while New Energy Economy has
vociferously argued that it is risky for PNM to acquire any more coal, a source of energy subject
to progressively tighter regulatory standards and provided at unacceptably high costs to
ratepayers in terms electricity costs and cost to health and the environment.5
12. Exhibit 43 contains an email from Ms. Collins to Commissioner Lyons assistant,
Mr. Rippy in June 2013 requesting to set up a meeting between Commissioner Lyons and Mr.
Darnell "to discuss San Juan." Exhibit 44 is an email about two meetings between PNM and
Commissioner Montoya taking place during exactly the same time frame; it is reasonable to infer
that those meetings were also about San Juan.
13. The Public Regulation Commission has broad powers that affect the daily lives of
all New Mexicans. It is absolutely crucial that the Commission be held to the highest standards
of integrity, and that New Mexicans have faith that their interests are being faithfully represented
by their elected officials.
14. In California, coziness between regulators and regulated entities has led to both
federal and state civil investigations.6 It seems clear from the above-referenced communications
compliance rather than individual utility compliance-a fact that is confused in Mr. Dirmeiers
analysis when he discusses PNMs compliance with the proposed rule-New Mexico is in good
shape to meet the targets established for it, given compliance with the Revised SIP." Rebuttal
Testimony in Support of Stipulation and Response Testimony on Reserved Issue, Ortiz, p. 30,
31. "It is simply not reasonable to assume that there will not be additional costs associated with
greenhouse gas emissions during the twenty-year planning period." (Direct Testimony of Patrick
OConnell, December 20, 2013, p. 18) And, New Energy Economys David Van Winkle testifies
in his Direct Testimony in Opposition to the Stipulation:
PNM claims that it will be "well-positioned to meet anticipated environmental regulations,"
but fails to definitively state that they will meet the requirements of EPAs Clean Power
Plan. (Olson, supra, at p. 60) In fact, PNMs Executive Director of Environmental Services,
Maureen Gannon testifies in her deposition that "in the context of what EPA has proposed
for its state standards under the Clean Power Plan, [PNMs emissions] gets the State very
close to the proposed standard." ... "New Mexico will get within 10% of the Clean Power
Plan." Gannon Deposition of August 22, 2014, pp. 75-76). In other words, they dont make
it with the current proposed replacement plan. Van Winkle, at p. 16
6 http://www.utilit~/dive.c~m/news/federal-pr~secut~rs-t~-investigate-pges-re~ati~nship-withcpuc/317855/
17
that members of New Mexicos PRC are similarly cozy with PNM - to the potential detriment of
the states consumers, whom the Public Regulation Commission is charged with protecting.
15. The substance of Article VI, Section 18 has been part of the New Mexico
Constitution since statehood. "[T]he disqualification of judges for certain causes, raising a
presumption of partiality, has been ever present in our Constitution"State
.... ex rel. Hannah v.
Armijo, 38 N.M. 73, 83, 28 P.2d 511,516 (1933). The purpose of this provision is based on due
process considerations--"to secure to litigants a fair and impartial trial by an impartial and
unbiased tribunal." State ex rel. Bardacke v. Welsh, 102 N.M. 592, 603,698 P.2d 462, 473
(Ct.App. 1985) (internal quotation marks and citation omitted). The recusal grounds listed in
Article VI, Section 18 of the New Mexico Constitution are "recognized dangerous sources of
partiality" and were included in the Constitution so as to prevent "the possibility of legislative
detraction in any legislative scheme of disqualification of judges on account of partiality."
Hannah, 38 N.M. at 82, 28 P.2d at 515-16. New Mexico law binds quasi-judicial
decisionmakers to "ethical standards comparable to those that govern a court in performing the
same function." ACP, 2008-NMSC-025, 33, 144 N.M. 99, 184 P.3d 411 (internal quotation
marks and citation omitted). As recently explained by the appeals court, ".... [B]asic safeguards
established by standards set out in the federal and state constitutions, as well as in New Mexico
statutes and rules, all have one goal--to ensure that the decision-maker is not biased. There is no
principled reason to apply the prohibitions in Article VI, Section 18 of the New Mexico
Constitution to judges but not to board members who are acting in an adjudicatory capacity." Los
Chavez Community Assn v. Valencia County 277 P.3d 475, 482 -483 (N.M.App., 2012)
16.
The PRC and Commissioners Montoya and Lyons have the responsibility,
delegated by the People of New Mexico, to decide what is undoubtedly one of the most
18
important energy decisions to face New Mexico, a decision that will have far-reaching
consequences for energy generation over the next 20 to 30 years. NEE has produced evidence
that rises, at the very least, to "an appearance of impropriety" if not evidencing improper conduct
and bias by Commissioners Lyons and Montoya toward PNM, a party in a pending matter before
the PRC Commission. Because of ongoing relationships between these Commissioners and
certain PNM officials and start; evidenced by email and telephonic communications, the sharing
of meals, familiarity with family members and personal health matters, invitations to attend and
joint attendance at entertainment and sporting events, and PNMs assistance in preparing reports
and presentations for Commissioner Montoya, to say nothing of ex parte contacts relating to
matters at issue in this case, both in anticipation of this case and during this case, there is
reasonable doubt that Commissioners Montoya and Lyons will be able to make a fair and
impartial decision regarding approval of PNMs Stipulation. Having deliberately crossed a timehonored, bright-line boundary that exists between the PRC and a regulated entity with business
before the PRC, there is reason to suspect that these Commissioners at least give the appearance
of bias. This is sufficient ground to require their recusal. The law requires no less.
*4 We determine the district court abused its discretion by ruling that further discovery
was not necessary in this case. It is clear that in order for LDMG to have an opportunity
to establish its claim of ex parte communications, LDMG needed to present evidence
beyond that brought before the Board. We conclude the case should be reversed and
remanded to the district court to allow LDMG the opportunity to gather evidence to
support its claim of ex parte communications.
LDMG Corp. v. Webster County Bd. Of Adjustment L 22697730, 2 -4 (Iowa
App.,2003). See, e.g., Portland Audobon Soc. V. Endangered Species Committee, 984 F.2d
1534, 1549 (9th Cir. 1993) ("In the absence of declarations [of the involved parties] denying that
alleged violations of the APAs ex parte communications prohibition occurred, the declaration of
the environmental groups counsel...and the newspaper reports.., are sufficient to warrant a
remand [to conduct discovery.. [therefore we] remand for a vigorous and thorough adversarial,
18.
No other parties provided their position before this Motion was filed.
WHEREFORE, pursuant to basic principles of justice and fairness, New Energy
Economy respectfully requests that the PRC require Commissioners Montoya and Lyons to
recuse themselves from deciding the case herein.
Respectfully Submitted,
New Em
~omy
/S/John W.
Bovd
Esq.
21
)
PUBLIC SERVICE COMPANY OF NEW MEXICO, )
Applicant.
)
)
) ss
)
1.
2.
New Energy Economy received the documents attached to the Motion and
Supporting Brief of New Energy Economy for Recusal of Public Regulation Commissioners
Montoya and Lyons from the Rio Grande Sun pursuant to an Inspection of Public Records
request to the Public Regulation Commi:ssion (PRC).
3.
Upon being duly sworn according to law, under oath, deposes and states: That I
have read Motion and Supporting Brief of New Energy Economy for Recusal of Public
Regulation Commissioners Montoya and Lyons and believe the contents therein to be true and
correct and to the best of my knowledge and belief.
Notary Public
My Commission Expires:
BE IT FURTHER RESOLVED,
That Commissioners and employees should collaborate and work together to
foster teamwork, mutual support and collective ethical awareness; and
BE IT FUR THER RESOLVED,
That this Commission Code of Conduct shall be applicable to each
Commissioner and to all Commission employees; and
BE IT FUR THER RESOLVED,
That this Commission Code of Conduct shall be reviewed periodically by
the Commission.
ISSUED under the Seal of the Commission at Santa Fe, New Mexico this 3rd day of
January, 2013.
).~,r~-i-... i"1
4. ! shall not use my office for personal gain, and I shall scrupulously avoid any act
of impropriety or any a.~t which gives the appearance of impropriety.
KAREN L.
~YA
COMMISSIONER DISTRICT 1
!, Patrick H. Lyons, duly elected member of the New Mexico Public Regulation
Commission from District 2, do I~ereby recognize the irrefutable principle that a public
office is a public trust and do solemnly swear that:
5. I shall faithfully support the United States Constitution and the Constitution of
the State of New Mexico.
6. ! shall ethically and witl~ integrity discharge the high responsibilities placed
upon me by the Constit~ation of the State of New Mexico and the voters of my
district.
7. 1 shall abide by the spirit as well as the letter of this Oath taken on .January 3,
2013.
8o
1 shall not use my office for personal gain, and ! shall scrupulously avoid any act
of impropriety or any a.~t which gives the appearance of impropriety.
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12/23/14 3:57 PM
Exhibit 2
Karen,
Per our phone conversation Ive attached a white paper on 121(d). The
paper was not prepared at PN Ms request rather it is prepared and
disseminated to all the authors clients who have an interest in 111(d).
Regards,
Ron Darnell, Senior Vice President Public Policy
Public Service Company of New Mexico
Main Offices
Albuquerque, NM 87158-1215
O: 505-241-4722
C: 505-362-5075
Page 1 of 1
12/23/14 3:57 PM
Exhibit 3
Sure
Sent from my iPhone
On Oct 16, 2013, at 1:23 PM, "Lara, Robert, PRC"
<Robert.Lara.@state.nm.us> wrote:
Mary can we set up this standing meeting at 8 am with the commissioner
at a alternate location other than PNM. I was thinking the Starbucks at
i-25 and Montano, its 1450 Montano NE ABO, NM 87107
Please let me know if we can do this
r
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Exhibit 3
12/23/14 3:57 PM
Page 2 of 2
12/23/14 3:57 PM
Exhibit 4
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12/23/14 3:57 PM
Exhibit 4
Page 2 of 2
12/23/14 3:58 PM
Exhibit 5
Mary
Mary Collins
Director, Strategic Initiatives
Marketing and Communications
PNM
414 Silver Avenue SW, MS-0605
Albuquerque, NM 87158
Work: 505.241.2214
Cell: 505.242.2010
Page 1 of 1
12/23/14 3:58 PM
Exhibit 6
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Exhibit 6
Page 2 of 3
Exhibit 6
12/23/14 3:58 PM
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Exhibit 7
I figured she would be able to use this info along with her own insights for
whatever comments she was going to make
Subject: RE: Distributed Energy Resources notesIs this just background information or is she planning on providing it as her
remarks?
Mary
The commissioner wanted me to fwd these notes to you for your
comments
Page 1 of 2
12/23/14 3:58 PM
Exhibit 7
Robert
Sent from my Verizon Wireless 4G LTE DROID
Page 2 of 2
In the U.S. energy infrastructure power is produced from resources inland, but most of the
consumption is in the major population centers along the east and west coasts. Thus, there is a
web of transmission and distribution (T&D) systems to get power from where its generated to
where its consumed. As those load centers increasingly demand more energy, significant
investments in transmission infrastructure are needed - but building out addition transmission
creates congestion at the load centers, according to experts.
Creating enough T&D to satisfy peak demand and avoid congestion would be like building a 32lane highway to combat rush-hour traffic: for two hours a day it would be well used but the other
22 hours it would be overkill and utilitie, s dislike underutilized investments.
Utilities are not equipped to meet the sudden increase in power demand associated with charging
electric vehicles, nor do utilities have a way to address the effects of distributed resources, such
as unpredictable increases in electric demand if the output of these resources suddenly drop.
Distributed energy (DE) technologies are playing an increasingly important role in the nations
energy portfolio. They can be used to meet base load power, peaking power, backup power,
remote power, power quality, as well as cooling and heating needs.
Distributed energy refers to a variety of small, modular power-generating technologies that can
be combined with load management and energy storage systems to improve the quality and/or
reliability of the electricity supply. They are "distributed" because they are placed at or near the
point of energy consumption, unlike traditional "centralized" systems, where electricity is
generated at a remotely located, large-sc, ale power plant and then transmitted down power lines
to the consumer.
Types of distributed energy resources
Distributed energy resource systems are small-scale power generation technologies (typically in
the range of 3 kW to 10,000 kW) used to provide an alternative to or an enhancement of the
traditional electric power system. The usual problem with distributed generators are their high
costs.
One popular source is solar panels on the roofs of buildings. The production cost is $0.99 to
2.00/W (2007) plus installation and supporting equipment unless the installation is Do it yourself
(DIY) bringing the cost to $0.525 to 0.750/W (2010). This is comparable to coal power plant
costs of $0.582 to 0.906/W (1979), adjusting for inflation.
Nuclear power is higher at $2.20 to $6.00/W (2007). Some "thin-film" solar cells have wastedisposal issues when they are made with heavy metals such as Cadmium telluride (CdTe) and
Copper indium gallium selenide (CuInGaSe), and must be recycled, as opposed to silicon solar
cells, which are mostly non-metallic. Unlike coal and nuclear, there are no fuel costs, operating
pollution, mining-safety or operating-safety issues. Solar power has a low capacity factor,
producing peak power at local noon each day. Average capacity factor is typically 20%.
Another source is small wind turbines. These have low maintenance, and low pollution.
Construction costs are higher ($0.80/W, 2007) per watt than large power plants, except in very
windy areas. Wind towers and generators have substantial insurable liabilities caused by high
winds, but good operating safety. In some areas of the US there may also be Property Tax costs
involved with wind turbines that are not offset by incentives or accelerated depreciation. Wind
also tends to complement solar. Days without sun there tend to be windy, and vice versa. Many
distributed generation sites combine wind power and solar power.
Grid-connected distributed energy resources also support the central-station model of electricity
generation, transmission, and distribution. While the central generating plant continues to
provide most of the power to the grid, the distributed resources can be used to meet the peak
demands of local distribution feeder lines or major customers. Computerized control systems-using phone lines or wireless technologies--make it possible to operate the distributed
generators as dispatchable resources, generating electricity as needed. In addition, emerging
smart grid technologies are making it easier for utilities to operate distributed generators as
dispatchable resources.
The growing popularity of distributed energy is analogous to the historical evolution of computer
systems. Whereas we once relied solely on mainframe computers with outlying workstations that
had no processing power of their own, we now rely primarily on a small number of powerful
servers networked with a larger number of desktop personal computers, all of which help to meet
the information processing demands of the end users.
Distributed generation plants are mass-produced, small, and less site-specific. Their development
arose out of:
1. concerns over perceived externalized costs of central plant generation, particularly
environmental concems,
2. the increasing age, deterioration, and capacity constraints upon T&D for bulk power,
3. the increasing relative economy of mass production of smaller appliances over heavy
manufacturing of larger units and on-site construction, and
4. Along with higher relative prices for energy, higher overall complexity and total costs for
regulatory oversight, tariff administration, and metering and billing.
Distributed generation reduces the amount of energy lost in transmitting electricity because the
electricity is generated very near where it is used, perhaps even in the same building. This also
reduces the size and number of power lines that must be constructed.
For reasons of reliability, distributed generation resources would be interconnected to the same
transmission grid as central stations. Various technical and economic issues occur in the
integration of these resources into a grid. Technical problems arise in the areas of power quality,
voltage stability, harmonics, reliability, protection, and control. Behavior of protective devices
on the grid must be examined for all combinations of distributed and central station generation.
A large scale deployment of distributed generation may affect grid-wide functions such as
frequency control and allocation of reserves.
To date, 37 states representing over 80% of the US population have enacted renewable portfolio
standards or goals that require 10% to 313% of energy delivered to customers by 2020. These
mostly variable resources present an operating challenge since the amount of power over the next
month, hour or even the next minute is generally harder to predict than power available from
hydro, gas, coal or nuclear plants. While many of these renewable plants were originally
interconnected to transmission systems, more recently large amounts of rooftop solar have begun
to create operating and economic issues for distribution systems.
According to the Federal Energy Regulatory Commission, 37 states plus the
District of Columbia have implemented renewable portfolio standards (RPS) or
goals (RPG) calling for an average of about 20% energy delivered to be sourced
from renewable resources by 2020. (4) These states represent about 80% of the US population.
Many energy customers do not have a rooftop suitable for the installation of solar panels or a
yard large enough to site a wind turbine.. Shared renewables programs can address this problem
through the development of larger, but still distributed renewable generation projects connected
to the distribution system at the wholesale level, with the power output distributed to subscribers
or community members. Shared renewables programs should be developed so that all energy
consumers are able to participate in clean energy markets.
Distributed generation does not have to be on the customers side of the meter, nor does the
output need to serve specific customers. It can also be deployed as small power plants, providing
wholesale power to utilities. Wholesale DG can help utilities to meet their states renewable
portfolio standard goals, to hedge against the risks of developing large-scale generation and
transmission projects, and to respond quickly to load growth. A variety of administrative or
market-based pricing mechanisms can be used to support wholesale DG, with long-term
contracts essential in order to allow these capital-intensive projects to be financed.
Too much regulation can present a major barrier to distributed generation, raising "soft costs"
like permitting and customer acquisition.. Regulators and local agencies should adopt bestpractice interconnection standards and improvements in the permitting process for DG as ways
to remove these barriers to DG deployment while still ensuring safe and reliable installations.
DG can reduce transmission and distribution costs, but only if utilities integrate DG into their
planning for delivery networks. IDP is a coordinated, forward-looking approach under which
utilities plan in advance to upgrade or reconfigure certain circuits that are expected to have DG
added in the near future, and make the associated costs known to the market with far more
transparency than is common today
New Mexico Specific Projects
Kit Carson July 2013
Kit Carson Electric Cooperative (KCEC) of Taos, NM and the Clean Energy Collective (CEC)
of Carbondale, CO, have entered into a 1.2 megawatt agreement to launch New Mexicos first
community solar gardens. The community solar projects will allow utility customers to purchase
solar panels located in community arrays, with the first phase being constructed at the Taos
Charter School.
Clean Energy Collective pioneered the community solar model for clean energy production,
which allows community members to purchase solar panels located in solar gardens to offset
their electricity use. CEC constructs and maintains the solar gardens, and the local utility
company agrees to acquire the power from the community arrays. Consumers receive the same
tax credits and electricity discounts as they would if the panels were installed on their roofs. CEC
warranties the panels for 50 years, so consumers dont have to worry about construction,
maintenance or repair.
The community solar concept allows all consumers to utilize clean renewable energy, including
renters, those with poorly sighted properties and individuals of all income levels, without having
to build a costly system of their own. Owners of community solar panels reap the benefits
directly on their monthly electric bills through KCEC.
The community solar arrays will be constructed on solar carports, mounting 420 solar panels on
top of a sturdy canopy structure. Solar carports are easy to maintain and also serve to protect
automobiles from the weather as well as. provide a convenient place to charge electric vehicles.
The first community solar arrays will produce approximately 160,000 kWh of clean energy per
year.
NMPRC and Reasonable Cost Threshold
Your thoughts on this debate and its impact on this new method of power generation and
transmission I think would dovetail well into this panel.
12/23/14 3:59 PM
Exhibit 9
Thanks[
From: Lara, Robert, PRC [mailto:Robert.Lara@state.nm.us]
Sent: Friday, October 11, 2013 1:33 PM
To: Collins, Mary
Subject: RE: Regional transmission organizations review
Ive added it and fwd your corr~ment to her
On the first page you should rnention that the part of New Mexico that is
not part of SPP participates in WestConnect, which is one of the planning
areas within the WECC. WestConnect could be considered to be a virtual
RTO since the member utilities work closely together for planning
purposes.
Page 1 of 2
Exhibit 9
12/23/14 3:59 PM
Page 2 of 2
Regional transmission organization (RTO) and Individual System Operators (ISP) Notes:
What is it?
A Regional Transmission Organization (RTO) and a Individual System Operators (ISO) is an
independent system operator. Both types of entities are functionally the same: they operate and
manage the interstate electricity grid over a large region, dispatch the system by means of
auction-based energy markets, and provide market monitoring oversight. A key characteristic of
both ISOs and RTOs is that, in contrast with grid operators in utility operated systems, they are
not affiliated with any market participant and thus provide the fair access to grid services needed
for a level playing field. Both RTOs and ISOs dispatch the system by means of competitive
auction-based energy markets, in contrast to the purely bilateral markets in single utility operated
systems. The grid operators in New York and California are ISOs, not RTOs, because of their
single-state geographic scope. The important point of both ISOs and RTOs is that they are not
affiliated with any market participants and thus provide the fair access to grid services needed for
a level playing field. RTOs and ISOs serve about two-thirds of electricity consumers in the U.S.
RTO membership is voluntary under FERC rules and regulations, but once a utility is in, its
pretty difficult to get out. RTOs dont physically own or operate any physical transmission or
generation facilities, but they do arrange for and coordinate the traffic over the transmission
system (eg, manage the tariffs, plan for congestion elimination, etc) and in some cases, arrange
for the generation - wholesale markets -- and delivery of the power over the system ( eg, market
imbalances, load following, etc). Individual utilities still have the responsibility to operate their
system and control areas within the constraints as dictated by the RTOs. RTOs charge a fee for
their services; they dont actually get a transmission fee themselves or buy and sell power.
RTOs basically bring a buyer and seller together. The relationship between the utility and the
RTO is contractual, so its enforceable under FERC. Entities not jurisdictional to FERC like
TriState, generally do not like RTOs, because participation brings them one step closer to FERC
oversight.
Where are they?
There are currently six operational Regional Transmission Organizations/Independent System
Operators (RTOs/ISOs) under the jurisdiction of the Federal Energy Regulatory Commission
(FERC): ISO New England (ISO NE); the New York ISO (NY ISO); the PJM Interconnection
(PJM); the Midwest ISO (MISO); the California ISO (CAISO); and the Southwest Power Pool
(SPP). The ERCOT ISO in Texas is entirely encompassed within the state which has its own
intrastate transmission grid and is therefi~re subject only to state authority.
Controversy
Much of the controversy over RTOs centers on the use of markets to manage transmission line
congestion and balance generation output against customer load (demand). When these markets
were established, proponents argued that competition would increase in each region, and
therefore prices would drop. In fact, the opposite has occurred because the markets are not
competitive. Instead, complicated mech,misms have been put in place to encourage certain
market behaviors, but these mechanisms have not achieved the desired results.
SPP: Operates in all or parts of Arkansas, Kansas, Louisiana, Mississippi, Missouri, New
Mexico, Oklahoma and Texas. SPP has approached RTO formation and market development on
a slower and more conservative track than many other RTOs.
For the most part, these interconnections operate separately. New Mexico happens to "straddle"
both the Eastern and Western interconnects affording it the opportunity to export power both
eastward and westward. The state is also adjacent to ERCOT. Thus far, the majority of the focus
on exporting New Mexicos renewable energy out-of-state has been on western markets like
Phoenix, San Diego and Los Angeles. However, there are significant opportunities to export
power to eastern markets particularly as more and more states adopt renewable portfolio
standards, see the Tres Amigas project discussed below.
identified in a regional plan for the purposes of cost allocation. As a result, many
transmission projects that have traditionally been assigned based upon geographic
location and service territory may now be open to competition. Incumbent utilities will no
longer maintain the federal right of first refusal to build, own and operate large-scale
transmission projects that are located within their service territory. The ROFR removal
has the potential to significantly change the way large transmission projects are identified
and awarded.
FERC 1000 is important because it has a keystone in the creation in developing new
transmission lines. This impacts renewable energy resources because the areas optimal for
developing renewable resources sometimes do not match with population centers, and that a
much wider dispersal of renewables is needed to ensure reliability. So transmission lines are
necessary to meet the energy where its at, carry it to where it is needed, and link it into the
larger grid.
Tres Amigas Project
Tres Amigas is a proposed project located near Clovis, New Mexico, that would physically
connect all three interconnections to enhance interstate conveyance of electricity into and out of
New Mexico.
On April 9 2013 FERC signed offon an agreement among Tres Amigas LLC, the Southwestern
Public Service Co. and the Southwest Power Pool Inc. that will enable the Tres Amigas
"superstation" to interconnect with Southwesterns transmission system.
The FERCs acceptance of the interconnection agreement is the latest milestone reached by Tres
Amigas in its effort to develop a new facility that will connect the Western Interconnection, the
Eastern Interconnection and the transmission system controlled by the Electric Reliability
Council of Texas Inc.
The companys website maintains that the focus of the project is "to help the country achieve its
renewable energy goals and facilitate the smooth, reliable and efficient transfer of green power
from region to region."
Noting that the nations three interconnections largely "operate as islands" and that renewable
energy developers "are facing increasing difficulties in getting sufficient access to the
transmission assets required to take their power to market," Tres Amigas said its goal is to "break
these bottlenecks" by offering "gigawatts of power transmission capability."
David Stidham, senior vice president and CO0 for Tres Amigas, told SNL Energy that the
company is in the process of completing its contract preparations with construction firms for the
erection of the buildings, voltage source converters and transmission lines associated with the
project. Once those contracts are in place, he said, Tres Amigas will "finalize design and order
the equipment," and expects to begin construction "sometime this summer."
"Our big remaining obstacle is obtaining the rights of way for the transmission line," Stidham
said, noting that Tres Amigas has secured approximately 40% of the rights it needs.
Stidham explained that because the company will not be publicly traded and will not have
ratepayers, the project will not be regulated by the Public Utility Commission of Texas and
therefore does not need that agencys approval. He also said the company is negotiating with
several customers interested in taking on an "anchor tenant" role, but stressed that entering into
such an arrangement "is not necessary fi~r financing" and that the company intends to wait until
the facilitys go-live date is closer before completing any such agreements. Operation of the
facility is expected to begin sometime in the summer of 2016, Stidham added.
Four Corners Project
In addition to the Clovis project, Tres Amigas is working on the New Mexico Express
transmission line. This is a transmission line underground that could connect power generation
stations in the Four Corners to the separate Texas power grid and to southern New Mexico, and
allow New Mexico to sell power across the grid.
Tres Amigas is planning to unite, in New Mexico, the Western Grid, Eastern Grid and Texas
Grid, the three power grids in the nation, with a buried High Voltage Direct Current (HVDC)
transmission line.
The project would make the wholesale market more efficient by allowing low-priced power be
delivered to high-priced areas, Phillip Harris, Tres Amigas CEO, told the New Mexico Finance
Authority at Aug. 2013 meeting. It would also provide opportunities for new and existing
renewable and natural gas-fired generation reach key markets, he said.
The company, Smith said, is nearing the start of its $500 million fundraising for the project. The
company has already received approval for industrial revenue bonds from Bernalillo County and
from Clovis, where the main station will be.
The project would be built in phases by a public-private partnership, Harris said. The first phase
would run about 400 miles between the Four Comers hub in northwestern New Mexico and the
planned Tres Amigas superstation in the eastern part of the state. Once built, the superstation will
link the Western and Eastern interconnects and the Texas grid system. A second phase would
loop through southern New Mexico, which has significant solar and wind potential.
Sun Zia
The SunZia Project consists of two bi-directional extra-high voltage electric transmission lines
and substations that will transport energy from Arizona and New Mexico to customers and
markets across the Desert Southwest. SunZias total transmission capacity has an approved
rating from the Western Electricity Coordinating Council of 3,000 megawatts across its entire
length for two single-circuit 500 kV AC lines. SunZia is solely an electric transmission project,
and is not a power generation facility.
The Bureau of Land Management (BLM), along with several cooperating agencies, is leading the
effort to comply with the National Environmental Policy Act (NEPA).
On June 14, 2013 the BLM released the SunZia Final Environmental Impact Statement and
Proposed Resource Management Plan Amendments.
SunZia is anticipated to be in-service by 2017.
Benefits of the SunZia Southwest Transmission Project:
Provides an option to develop power generation resources, including renewable resources,
located in Arizona and New Mexico that currently do not have nearby access to transmission
service; and
Delivers these generation resources to customers along SunZias alignment and western markets;
and
Increases reliability of the existing extra-high voltage transmission system in southern Arizona
and southern New Mexico; and
Greatly improves power transfer across the Desert Southwest electricity grid; and
Generates jobs and wage income in addition to revenues for state and local governments through
property, state and local taxes paid by the SunZia Project and generation projects that may utilize
SunZias new transmission capacity.
Summary of Economic Impacts to New Mexico if Sun Zia is successful
Over $275 million in estimated wages and salaries (including benefits) during construction of
SunZia
Over $65 million in state and local taxes during construction of SunZia
Over $2 million per year in wages and salaries during operation
Sun Zia Controversy
A fight over a power line planned to run through New Mexico pits proponents against the Army
with both sides saying jobs and billions of dollars are at stake. The latest proposed route closely
skirts the northern edge of the White Sands Missile Range, a route the Army says could hurt the
range and its thousands of jobs.
Supporters of the power line claim more delays could cost thousands of jobs and hurt the power
grid.
The proposed SunZia power line route about 50 miles southeast of Albuquerque is a mix of
public and private. New wind and solar plants planned for eastern New Mexico would send
power to Arizona all creating thousands of construction and maintenance jobs, according to its
proponents.
For four years the federal Bureau of Land Management has led environmental studies to find a
route... The issue isnt on the ground it is about the airspace the line would occupy. The proposed
power line route it was right at the edge of airspace White Sands Missile Range uses for flight
training and for testing weapons.
The Department of Defense says both the height of the lines and their electronic emissions would
hamper some new weapons tests. Simulated enemy missiles would zip across this area at near
treetop level trying to avoid new anti-missile systems. The Army says if enemy missiles have to
pop up over power lines they lose their stealth, and emissions from the lines confuse anti-missile
sensors. The Army wants the power lines either buried or looped farther north to near Belen.
White Sands says the range "offers a unique testing environment which cannot be replicated
elsewhere. If testing cannot be done here jobs and revenue associated with this testing will also
be lost."
The power line route has already been moved for the Army several times. Four years ago and at
the Armys suggestion it was shifted from near U.S. 380 for more distance from electronics sites.
Later another change of mind and the Army said it really needed to be moved to the edge of the
extra airspace. BLM expanded studies, and the route was placed where the Army suggested.
Now, with environmental studies complete, the Army wants the line moved again much farther
north or buried.
SunZia says burying the massive power lines is not an option and that they might just walk away
if delays and costs keep piling up. Both the military and the BLM say they believe a compromise
can still be found. A final decision is expected by October.
SunZia says if a final route is approved it hopes to have the new power lines up in less than three
years at a cost of $1.5 billion. It is worth noting that, SunZias set up has been critizied by some
in the industry as not being an effective method of transmission of renewable as it is classified as
a long haul system.
Southwest Power Pool (RTO in NM)
The New Mexico service territory of the Southwestern Public Service Company is
also interconnected with the Texas service territory of Southwestern Public Service
Company by one 345 kV line and four 230 kV lines. All of these lines, with the
exception of one, normally flow in the East to West direction.
Recently the NM PRC allowed (you voted no) for the Southwestern Public Service Company to
become a member of the Southwest Power Pool. However, the Commission retained jurisdiction
over SPS as it relates to any effects of the integration of SPS with SPP.
The SPP is a FERC-approved RTO. It is an Arkansas non-profit corporation with
its principle place of business in Little Rock, Arkansas. SPP has 66 members,
consisting of 14 investor-owned utilities, 11 municipal systems, 1:2 generation and
transmission cooperatives, 4 state authorities, 8 independent power producers, 10
power marketers, and 7 independent transmission companies.
SPS sells electricity to approximately 100,000 retail customers in and around the
communities of Artesia, Carlsbad, Clovis, Dexter, Eunice, Hagerman, Hobbs, Jal,
Lake Arthur, Loving, Malaga, Monument, Otis, Portales, Roswell, Texico,
Tucumcari, and White City under rates subject to the Commissions jurisdiction.
The New Mexico service territory thus comprises approximately 31 percent of all
SPS retail customers and approximately 17 percent of total 2012 electric sales.
WestConnect (RTO in NM)
WestConnect is composed of utility companies providing transmission of electricity in the
United States, specifically California, Nevada, Arizona, New Mexico, Colorado, and Wyoming.
The members work collaboratively to assess stakeholder and market needs and to develop cost\
effective enhancements to the western wholesale electricity market. Transmission
permitting/siting is the largest barrier to development in the west as much of the land is federally
owned and controlled. In additional tribal lands require that commercial terms for right of way
must be mutually agreed upon. WestConnect is a way for its member organizations to organize
to overcome these types of obsitcals .WestConnect is committed to coordinating its work with
other regional industry efforts to achieve as much consistency as possible in the Western
Interconnection. The SWAT New Mexico Transmission Subcommittee has been formed to study
the New Mexico and Southwest Texas region.
This regional analysis include the participation of:
Public Service Company of New Mexico
E1 Paso Electric
Tri-State GT
10
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X
0
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0
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0
0
12/23/14 4:01 PM
Exhibit 12
Sure did you want to do a working lunch or just sit and chat with the commissioner?
r
Page 1 of 5
Exhibit 12
12/23/14 4:01 PM
Hi Mary, will you be at the meeting Wednesday? Do you want to do our study
session then?
Page 2 of 5
Exhibit 12
12/23/14 4:01 PM
robert.lara@ state.nm.us
505.827.8015
Let me pull together some information first and then we can meet and go through it.
Let me shoot to get something together for next week. Then lets get together to
review.
Mary
Hi Mary,
Page 3 of 5
12/23/14 4:01 PM
Exhibit 12
So far on the panel they have the Nevada PUC Chair and the Colorado PUC Chair
in addition to the Commissioner.
So the Commissioner asked that I get with you to assemble some background
research on a few topics so she can lead the discussion. Specifically she wanted to
get information on
1.
Facts on Distributed Generation in NM so far, "trends in NM and what the
futurewould look like".
2.
3.
Would it be best to get together and go over some of these topics or do you want to
send me stuff to add to the things I am able to find for her in my research.
Thanks
Robert
Page 4 of 5
12/23/14 4:01 PM
Exhibit 12
Page 5 of 5
12/23/14 4:01 PM
Exhibit 13
Page 1 of 2
12/23/14 4:01 PM
Exhibit 13
Page 2 of 2
::NREL
12/23/14 4:03 PM
Exhibit 18
From: Montoya
Subject: Fwd: powerpoint
Date: July 7, 2014 10:48:56 AM MDT
To: Mary Collins <Mary Collins
Page 1 of 1
12/23/14 4:06 PM
Exhibit 20
Page 1 of 1
12/23/14 4:06 PM
Exhibit 21
Page 1 of 1
Designed to provide more flexibility to allow economic development rates to assist in job creation and
additional investment in New Mexico
Eliminates requirement for excess capacity as pre-condition for economic development rates
Provides expeditious process for approval of economic development rates
Establishes cost floor for economic development rates to help protect against unfair imposition of
costs on other customers
Relies on utility to negotiate contract economic development rates within cost floor specified in statute
Requires a customer to obtain certificate of eligibility from Economic Development Department that
customer meets eligibility criteria, including size of load, job creation, amount of investment and
intention for continued operations; similar to certification requirements used in many states
Criteria to obtain certificate of eligibility is modeled after West Virginia statute, supplemented with
criteria regarding minimum wages applicable to job creation from the New Mexico High Wage Jobs Tax
Credit
Requires economic development department to establish terms and conditions in certificate designed
to assure fulfillment of purposes of act, includinl~ establishing milestones
Allows Public Regulation Commission to determine if economic development rates negotiated in the
contract meets the cost floor requirements of the statute
Commission must allow economic development rate to become effective without hearing thirty days
after filinl~ if cost floor requirements are me
If Commission has probable cause to believe that economic development rate in contract is below cost
floor, it may hold a hearing to determine if cost floor requirements are met, but must decide within
ninety days after filing of the contract or the contract becomes effective
Provides that utility and Economic Development Department may require reasonable assurances to
guarantee that the customer will pay the difference between the economic development rate and the
rate that would otherwise be applicable if the customer does not in fact fulfill the commitments made
to obtain the certificate of eligibility
AN ACT
RELATING TO PUBLIC UTILITIES; AMENDING THE PUBLIC UTILITY ACT TO
PROVIDE FOR ECONOMIC DEVELOPMENT RATES TO ASSIST IN JOB
CREATION AND ADDITIONAL INVESTMENT IN THE STATE; DECLARING AN
EMERGENCY.
12/23/14 4:07 PM
Exhibit 23
Page 1 of 2
12/23/14 4:07 PM
Exhibit 23
Maestas told Business First. "Its energy thats not being used, and the
larger the economy grows, the larger the tax base gets."
Utilities cannot, under current state law, offer reduced rates to any one
customer.
His bill, he said, will bring New Mexico to parity with neighboring
states that offer similar incentives.
Pahl Shipley
<imageOOl.gif>
Corporate Communications
(505) 241-2782 direct
(505) 259-8063 mobile
Page 2 of 2
12/23/14 4:07 PM
Exhibit 24
Page 1 of 1
12/23/14 4:07 PM
Exhibit 25
10 hours ago
Tiffany Crisostomo
o hi, my zip is 87102, my power is still on for now but it flickered
about a half hour ago, and i was just wondering, i have a son with
special needs and due to his condition i am not able to work (minimal
income) therefore i cannot afford a fancy backup generator for his
medical supplies and they only last a few hours when charged so my
question is when we were in the hospital they told us if you guys know
he has special needs and equipment and there is a blackout there is
Page 1 of 4
12/23/14 4:07 PM
Exhibit 25
10 hours ago
PNM
o Tiffany, I am so sorry I know this is scary. At this time we dont
anticipate your power to go out, most of the city experienced the flicker
and crews are working on that issue now. I can check into the list that
you are referring to and have someone contact you tomorrow if you
can give a good phone number.
10 hours ago
Tiffany Crisostomo
o that would be great, im always worried, we have made it this far and
i dont want something getting in the way like his equipment not
working if theres an outage...my number is 505-385-3467 whenever
someone could call me if there is something i can do to let you all
know because i think people with medical needs should have
something available to them...i appreciate you looking into it for me
thank you
10 hours ago
PNM
o I certainly understand the concern. I will contact you or have
someone from Customer Care contact you tomorrow. Are you
accessing Facebook on a mobile device?
10 hours ago
Page 2 of 4
12/23/14 4:07 PM
Exhibit 25
Tiffany Crisostomo
o at the moment no, and i very much appreciate that thank you
hours ago
PNM
Do you have a way to report your outage if it were to go out?
9 hours ago
Tiffany Crisostomo
o yes i only have a cell though...so if my phone and my moms phones
are both dead we would be in trouble with more than just reporting the
outage...but im usually good at charging it...so i guess yes is my true
answer
hours ago
PNM
Good. The winds have calmed and we are hoping the worst is over.
We do not anticipate that you would lose power again.
9 hours ago
Tiffany Crisostomo
o okay thank you very much for staying in touch with me this has
probably been the best customer service i have ever received
hours ago
PNM
Glad to hear that Tiffany. Will talk to you tomorrow.
Page 3 of 4
12/23/14 4:07 PM
Exhibit 26
Page 1 of 1
12/23/14 4:07 PM
Exhibit 27
From:
To:
Date:
Subject:
Ortiz Gerard
Rip_p_y Dallas PRC
Thu, 17 Apr 2014 16:17:38 +0000
Re: [External] Seattle
505 450-5008. This is my cell. Please feel free to add it to my contact info. Thanks
for your help Dallas.
Sent from my iPhone
Dallas Rippy
Executive Assistant to Commissioner Lyons
New Mexico Public Regulation Commission
District 2
(505) 827-4531
dallas, rip.p_y_@state, nm. us
Page 1 of 1
12/23/14 4:07 PM
Exhibit 28
From:
To:
Date:
Subject:
Ortiz Gerard
R_jp_p_y Dallas PRC
Wed, 30 Jul 2014 15:45:05 +0000
Re: [External] Contact info
Gerard,
realized that I didnt have a cell # for you. If its ok may I please have that?
Sincerely,
Dallas Rippy
Executive Assistant to Commissioner Lyons
New Mexico Public Regulation Commission
District 2
(505) 827-4531
dallas.rip_py@state.nm.us
Page 1 of 1
12/23/14 4:08 PM
Exhibit 29
Here is a white paper that I pulled tol~ether earlier this year that describes
distributed I~eneration and the impact on PNM (very end of paper.) We
are seriously Iookinl~ at solar PV and we are concerned that the costs
associated with servinl~ the solar PV customers is not being covered by
those customers because of net meterinl~, and as a result other customers
will have to bear the costs.
Net meterinl~ is basically running the meter backward. For each kWh the
rooftop facility generates the meter shows a credit. So, the customer I~et
the credit for the kWh that they did not use.
Hope this helps.
Mary
Page 1 of 1
12/23/14 4:08 PM
Exhibit 29
Here is a white paper that I pulled together earlier this year that describes
distributed generation and the impact on PNM (very end of paper.) We
are seriously looking at solar PV and we are concerned that the costs
associated with serving the solar PV customers is not being covered by
those customers because of net metering, and as a result other customers
will have to bear the costs.
Net metering is basically running the meter backward. For each kWh the
rooftop facility generates the meter shows a credit. So, the customer get
the credit for the kWh that they did not use.
Hope this helps.
Mary
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DISTRIBUTED
ENERGY
RESOURCES
April 201 3
Distributed energy resources (DER) are non-centralized sources of electricity located at or near customers
homes or businesses, as well as programs that help manage electricity use. Examples of DER include solar PV,
energy storage devices, fuel cells, energy efficiency and demand-side management programs and microgrids. The reduction in costs, especially solar PV, as well as tax credits, renewable incentives, REC payments
and net metering are making these resources very attractive to residential and business customers. Customers
are attracted to DER opportunities for several reasonsmto demonstrate their commitment to renewable
energy and as a price hedge against future rate increases. This white paper will focus primarily on one type
of DERmresidential customer ownership of solar PV, which is often referred to as distributed generation (DG).
SYSTEM IMPACT
Electric utilities, primarily through the Edison Electric Institute, have been evaluating the impact of DER on their
systems. Electric utilities want to ensure the DER systems are added to their distribution system in a way that
protects reliability, ensures the safety of the public and utility employees, and is fair not only to customers who
adopt DERs, but also to other customers who receive electricity from the local utility.
While the penetration of DER on utility systems is relatively low at this point in time, it is growing. More
customers will be finding DER attractive as the cost of PV panels continue to decline and the technology for
energy storage (batteries) improves, and local utilities seek additional rate recovery.
The addition of DER to the electric system significantly changes the way the system will operate. The
distribution system was built to transmit power one wayminto a customers premise. But the adoption of DER
means that power is flowing into and out of a customers premise and puts additional strains on the system.
As DER grows on a utilitys system there will be a need for increased distribution investment. Changes will be
required to properly integrate the resources. As a result there will be additional investments in the physical
infrastructure, operating systems, risk management (including cyber-security) and enhanced coordination with
generation and transmission systems. DERs need to be added to the system in a way that protects reliability,
ensures the safety of the public and utility employees, and is fair to all customers.
Since the energy generated by the DERs will not always match the energy needs of customers, utilities must
maintain sufficient generating capacity as well as distribution and transmission infrastructure to provide backup power, and ancillary services necessary to maintain grid stability. For example, the best solar production
occurs approximately 2 to 8 hours prior to the systems peak load. Many utilities, including PNM, are not fully
recovering the costs of providing this back-up infrastructure to current DER system customers.
PNM Resources
Page 1
Produces ancillary services such as reactive power and voltage support providing for greater system
reliability.
Provides emergency power for public services, such as hospitals, police stations, military bases, etc.
Decreases vulnerability of the electric system to threats from terrorist attacks.
CUSTOMER IMPACT
While there are systems benefits there are also a number of costs associated with DER. The recovery of these
costs is an ever-growing concern as utilities lose an increasing amount of revenues each year due to new
programs that result in reduced energy consumption. Currently, the majority of fixed utility costs--customer
service, distribution and transmission (wires) and generation--are recovered through volumetric charges--cost
per kWh. Customers with DER systems are not contributing to their share of the fixed costs which means that
non-participating customers, especially low income, will be responsible for paying the costs that they not cause
to incur on the system.
Forty-seven states have net metering policies for DER systems. Under a net metering tariff the meter "runs
backward." The tariff provides a per kWh credit on the customers bill for the amount of energy they produce
during the month. The kWh credit is equal to the full retail rate that the customer would otherwise have paid
for that energy, absent a DER system. These customers are not paying the full cost associated with being
integrated with the grid and receiving instantaneous backup service.
Under traditional utility rate structures, the net metered credit does not provide accurate price signals, since
the credit is the same for each kWh generated; it does not accurately reflect the system costs that have been
offset.. For example, the typical PV system will produce surplus energy during early morning to ~ate
afternoon, and produce little to no energy during residential peak hours which typically occur during the
evening hours. For example, PNMs peak is typically between 7pm and 9pm during the non-summer months
PNM Resources
Page 2
Het~r lending
Hour Ending
By crediting customers for all net energy produced at the full retail rate, irrespective of the timing of that
generation, utilities are distorting the price signal of the value of the energy produced. Some utilities have
considered crediting the customers with the time of use value or the avoided cost value, rather than the retail
rate.
There is growing concern about the shift of costs from DER customers to non-participants, what is being
referred to as the "green energy divide." The concept originated in California as more of the affluent
residential customers began to install solar PV on their rooftops, leaving the other customers the burden of
recovery of the additional costs. With a state target to install 1 million solar roofs (3000 MW) by 201 61 the
problem will only get worse
But, this is not just a California issue; all utilities could potentially face the problem if DER resources continue to
grow on a utilitys system and tariffs to recover the fixed cost of providing standby/back-up service are not
developed.
Customers that have installed DER systems, as well as DER developers, oppose the imposition of tariffs to
recover the fixed costs associated with the back-up/standby services that they receive. They argue that these
tariffs do not reflect the benefits provided by the DER installation.
REGULATORY CHALLENGES
The adoption of DER systems will have a significant impact on the traditional utility business, and as a result
the current regulatory paradigm. It is important to begin to develop new rate policies and rate designs to
sustain a reliable grid.
The primary question is how to collect sufficient revenues to maintain a safe and reliable system. In
developing new rates and policies it is important to keep the rate design guiding principles in mind.
Cost causation--If the utility incurs a cost specific to a customer or a small number of customers, those
customers should bear the cost.
FairmRates designed in a manner fair to all partiesmparticipating and non-participating DER
customers~and the utility. This avoids cost shifting.
PNM Resources
Page 3
Reliabilitymlntermittency and lack of control by a utility of many of the new technologies must be
considered so that a reliable power source is available to all customers at all times
Equitable~Utilities should be indifferent between traditional sources of generation and demand-side
resources. Cost to the utility of implementing demand-side generation or renewables should earn the
same returns as supply-side resources
Cost Competitive/Cost Effective---Technologies should be cost competitive with traditional generation
sources and should be evaluated based on cost effectiveness
Utilities throughout the US are wrestling with this dilemma and are evaluating a variety of potential rate
designs. The following are examples of some of the rate designs that are currently being evaluated.
Customer Charge: Fixed costs would be removed from the volumetric part of the tariff and would be
recovered through the customer charge.
Reservation Charge: This would recover the customers portion of costs incurred to hold generating
capacity available for backup service when the customers system is not generating energy.
Demand Charge: Recovers the customers portion of generating capacity costs actually incurred to
generate power. This is a common component of large commercial/industrial tariffs.
Time of Use Rates (TOU): The on-peak and off-peak rate distinctions more accurately align the value
of the energy with the time that it is produced.
Standby Service Charge for Distribution and Transmission: Recovers the fixed costs associated with
distribution and transmission services
Distributed Generation Surcharge: Surcharge recovers the fixed costs the DER customers would have
incurred if they did not have a DER system
Unbundling: Breaks up the rate into a customer charge, distribution charge, transmission charge and
generation (energy) charge
Net Billing: Customers monthly bill would be offset by the avoided cost rate times energy produced
during the month.
There is no one right answer, but utilities and commissions are initiating proceedings and evaluating what will
work best to provide transparent and equitable rates without inter-class subsidization. Under current rules and
rate structures, DER customers are being subsidized by non-DER customers because DER owning customers pay,
after bill credits for their production, less than the costs they incur on the system. That leaves the non-DER
owning customers to pay higher rates to offset the fixed costs that are no longer being recovered by the DER
owning customers. This creates intra-class subsidization which results in unmerited cost shifting to low-income
customers who may already struggle to pay their utility bills, while giving an unfair cost benefit to the more
affluent.
PNM Resources
Page 4
2 HB 267, which was introduced during the 2013 legislative session and signed into law by Governor Martinez, reduces PNMs
mandated energy savings goal to 658GWh by the end of 2020
PNM Resources
Page 5
"e-
20
2009
39.9
2010
58.8
57.6
2012
79.3
2013
70.0
2014
75.0
,Annual Savings
CONCLUSION
Distributed energy resources will become a significant part of a utilitys generation portfolio. While the
impact on a utilitys system and current cost recovery may be minimal at this point in time, as the adoption of
DER increases, so will the problem. The industry on a whole is wrestling with this issue. A good example of
the increasing importance of this topic is the NARUC endorsed Critical Consumer Issues Forum meetings that
are being held throughout the year. This year the focus is on Distributed Energy Resources. Through this
forum, representatives from state regulatory commissions, public advocates and the industry will meet to
determine what the issues are and principles surrounding DER should be. The findings should be reported out
at the NARUC Annual Meeting in November.
There is no one right way to address this problem. As the industry becomes more aware of the potential
issues, it will begin to develop solutions. But, at this point in time there is still a great deal of uncertainty, and
the need to undertake further analysis. At the February NARUC Winter Meetings, then Secretary of Energy
Chu stated "The changed landscape (distributed energy resources) will have profound impacts on existing
business models and regulatory structures of U.S. utilities."
PNM will continue to monitor developments in this area and will share any additional findings with the
Commission.
PNM Resources
Page 6
Sacramento Municipal Utilities District (SMUD) and Arizona Public Service (APS) have recently published
studies proposing pricing models utilizing time-of-use (TOU) rates and higher customer charges. With TOU
pricing, a customers excess off-peak generation is credited against off-peak usage and on-peak generation
is credited against on-peak usage. This allows the utility to credit a rate that more closely aligns with the
value of generation in on-peak vs. off-peak hours.
By including a higher customer charge in conjunction with the TOU pricing, the utility is able to recover, at
minimum, a higher portion of the fixed distribution and transmission costs that would otherwise be reallocated
to non-DG customers in the long-run.
Dominion Virginia Power received an order from the State Corporation Commission, authorizing the inclusion
of two standby charges for bills rendered on or after April 1,2012. The Commission concluded that "the
evidence in the record indicates that customer generators who engage in net metering still make use of the
transmission and distribution grid." They also confirmed that "the evidence in the record indicates that any
avoided cost benefits provided by customer generators, at least in terms of the transmission and distribution
grid, are insufficient to pay for their proportionate share of the grid." The charges will be applicable to
customers with 10kW - 20kW PV systems. The result of the $2.79 per kW of distribution charge and $1.40
per kW transmission charge is a $60 average monthly charge for customers with these large PV systems.
PNM Resources
Page 7
In Colorado, amendments to the rules for implementing the Renewable Energy Standard (RES) include a
surcharge for net metered customers. In Colorado, utilities are required to procure specified levels of
renewable energy resources each year, the cost of which is passed on to utility customers through a per kWh
RES charge. During the rule making proceedings, Public Service Company of Colorado argued that the
energy consumption that distributed generation (DG) customers avoid, results in a reduced contribution to the
RES fund. The General Assembly agreed that DG customers therefore do not contribute to the fund in
proportion to their energy consumption in the way that traditional customers do and they recognized that is
was unfair for DG customers to reap the full benefits of the fund without contributing their fair share. The
surcharge is intended to recover the full amounts that DG customers would pay to the Renewable Fund, absent
their DG systems.
PNM Resources
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12/23/14 4:08 PM
Exhibit 31
http :llsp/pnmrservices/custcomm/solarissues/Net%20Metering/
net_metering_quick_reference_web I .pdf
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Exhibit 32
12/23/14 4:08 PM
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I.
Introduction
Recent published reports point toward a growing conviction that the demand for
utility service from the U.S. electric grid may soon decline, perhaps substantially, due to
the expanding use of distributed generation.1 One report prepared by a division of
Citigroup describes the improving economics of distributed solar power, which the
authors expect will continue.2 A second Citigroup report projects reductions in the
demand for utility service in developed markets of up to fifty percent by 2050.3 Favorable
projections for distributed generation, however, depend on assumptions about
technological change that may turn out to be overstated, and even if distributed
generation grows substantially, millions of homes and businesses will continue to rely on
the electric grid for many decades.4
David Raskin is a partner in the Washington, DC office of Steptoe & Johnson LLP. He has
represented stakeholders in the electric power industry for more than thirty years. During this time, he has
been involved in most of the significant federal regulatory initiatives designed to increase competition in
the electric industry and has assisted clients in managing the unprecedented changes that have occurred in
recent decades.
1 E.g., Diane Cardwell, On Rooftops, a Rival for Utilities, N.Y. TIMES, July 26, 2013,
http://www.nytimes.com/2013/07/27/business/energy-environment/utilities-confront-fresh-threat-do-ityourself-power.html; Peter Kind, Disruptiw~. Challenges." Financial Implications and Strategic Responses
to a Changing Retail Electric Business, EDISON ELECTRIC INSTITUTE (Jan. 2013),
www.eei.org/ourissues/finance/Documents/disruptivechallenges.pdff.
2 Citi Research, Rising Sun." Implications for US Utilities (Aug.
8, 2013),
http://www.wecc.biz/c~mmittees/B~D/TEPPC/SPSG/Lists/Events/Attachments/7~6/CITIRising0 ~20Sun0 ~20Implications0 ~20for0 ~20US0 ~20Utilities.pdf.
3 Jason Channell et al., Energy Darwinism." The Evolution of the Energy Industry, C1TI GLOBAL
PERSPECTIVES
&
SOLUTIONS
73-75
(Oct.
2013),
https://ir.citi.com/Jb89SJMmf% 2BsAVK2AKa3QE5 EJwb4fvI5UUplDOICiGOOk0NV2CqNI O~2FPDLJq
xidz2VAXXAXFB6fOY%3 D.
4 Even if Citis aggressive prediction of fifty percent demand reduction by 2015 turns out to be
VOLUME 4
Germany has gone further to promote distributed generations than any other
industrialized nation, and its experience provides a cautionary tale. More than a decade
after Germany initiated its Energiewende,6 the average residential price for electricity is
almost 36 cents per kWh,7 and rates are projected to rise another thirty to fifty percent in
the next ten years.8 Without a change in policy, German residential electric rates may
therefore approach 50 cents per kWh by the end of this decade. In contrast, the average
residential rate in the U.S. is approximately 12.5 cents per kWh.9 Because the average
U.S. residence uses approximately 1,000 kWh of electricity per month,l the current
German rate would be equivalent to an average household tax of $3,000 per year. Rates
anywhere near the levels being experienced in Germany would be unacceptable in the
U.S.l~
accurate, that prediction leaves fifty percent of electric load dependent on grid service.
s In this Article, references to "distributed generation" refer to energy sources located behind the
retail meter or connected to a micro grid, where the intent is to remove some load or demand from the
system of integrated electric generation, transmission, and distributed facilities that comprise what is
referred to in this Article as the "grid."
6 Energiewende, or energy transformation, is the product of the German Renewable Energy Act of
2000 (Erneuerbare-Energien-Gesetz) that put in place substantial subsidies for distributed generation and
grid-connected renewables. See General InJbrmation. Transformation of Our Energy System, GER. FED.
MINISTRY FOR THE ENVT, NATURE CONSERVATION AND NUCLEAR SAFETY, www.bmu.de/P118-1/(last
visited Nov. 24, 2013).
7 Jesse Morris, How Germanys Solar Evolution Impacts America, EARTH TECHLING (Oct. 12, 2013),
http://www.earthtech~ing.c~m/2~~3/1~/h~w-germanys-s~lar-ev~~uti~n-impacts-america. Ironically, this
article laments the fact that the German feed-in tariff rate for distributed solar is only 20 cents per kWh,
well below the full retail rate.
8 Institute for Energy Research, Germanys Energy Policy: Man-Made Crisis Now Costing Billions
(Oct. 30, 2012), http://www.instituteforenergyenergy research.org/10/20/2012. Many Germans claim they
can no longer afford to buy electricity. Germanys Energy Poverty: How Electricity Became a Luxury
Good, SPIEGEL ONLINE INTL (Sept. 4, 2013), http://www.spiegel.de/international/germany/high-costsand-errors-of-german-transition-to-renewable-energy-a-920288.html.
9 Energy Info. Admin., Table 5.6.A. Average Retail Price of Electricity to Ultimate Customers by
End-Use
Sector,
(Nov.
20,
2013),
http://www.eia.gov/electricity/monthly/epm_table_grapher.cfm?t=epmt 5 6 a.
~0 Energy Info. Admin., How Much Electricity Does an American Home Use?,
http://www.eia.gov/tools/faqs/faq.cfm?id=97&t=3 (last updated Mar. 19, 2013).
~ Germanys Environment Minister, Peter Altmaier, has acknowledged that Germany has overdone
the subsidies and needs to cut them back. Diarmaid Williams, Altmaier says German energy transition
could cost $1.34trn, POWER ENERGY INTERNATIONAL (Feb. 21, 2013),
http://www.powerengineeringint.com/articles/2013/02/Altmaier-says-German-energy-transition-couldcost-134trn.html; Minister Altmaier: LEG Cuts Needed--or Energiewende Costs Will Reach Trillion
Euro Mark by 2040, GERMAN ENERGY BLOG (Feb. 20, 2013),
http://www.germanenergyblog.de/?p= 12278.
39
2013
Even with extraordinarily high and increasing electric rates, aggregate carbon
dioxide emissions by the German electric sector are rising.12 In contrast, U.S. emissions
are falling even though renewables constitute a much smaller percentage of the electric
energy mix in the U.S.~3 The stability of the German grid is also being put at risk: it has
relied more heavily on variable, renewable generation at the same time that grid resources
capable of rapidly balancing supply and demand have been shutting down due to
anomalous market price signals.~4 Energiewende has also taken a toll on the utility
companies that may have to make the grid investments to fix these operating problems.
Equity values for Germanys biggest utilities have fallen by fifty percent or more over the
past three years.15
While Germany struggles with Energiewende, the growth of distributed generation
in the U.S. is being fueled by a controversial regulatory practice known as net metering.
If distributed generation comes to play a significant role, the loss of demand for service
from the grid may eventually make it difficult for the owners of grid assets to recover
their costs, creating what the utility industry calls "stranded costs." This Article explores
the debate over net metering and t~hen turns to the longer-term prospect of having to
address potential stranded costs produced by the expanded use of distributed generation.
II.
VOLUME 4
behind the retail meter, such as from rooftop solar panels. In most of the states that allow
net metering, the credit equals the bundled retail rate. The credit applies not only to
foregone consumption but also--with limited exceptions--to the energy generated from
behind the meter in excess of the customers own use and delivered to the utility.17
Net metering therefore values the energy produced by distributed generators at the
bundled retail rate for electricity. The bundled retail rate includes, in addition to the cost
of producing electric energy, the costs associated with investment in and operation of
transmission and distribution facilities and other costs incurred to ensure reliability and
fund public policy initiatives endorsed by utility regulators. As noted above, the average
residential price of electricity (the average bundled rate) is currently around 12.5 cents
per kwh. ~8 According to published data as of November 2013, the market price of energy
from grid-connected~9 generators is averaging, in most locations, between 2 and 3 cents
per kwh during off-peak periods and between 4 and 5 cents per kwh during on-peak
periods.2 Recent sales of grid-connected renewable energy have been priced near or
below 3 cents per kwh.2~ Therefore, net metering allows the owners of distributed
generation to effectively sell their energy at prices between two and six times the market
price for energy.
Grid-connected renewable generators are paid the much lower market price for
their energy, so the issue is not, as advocates of distributed generation allege, merely
about promoting "clean" energy. A grid-connected solar generator at the same location as
a distributed solar generator receives a fraction of the compensation for providing energy
using similar--and equally clean--technology.22 Grid-scale solar generation is actually
more efficient, so net metering provides a huge subsidy to a less efficient form of
17 As discussed below, the Federal Energy Regulatory Commission (FERC) has disclaimed
jurisdiction over energy supplied from behind-the-meter distributed generation so long as the customer
does not supply more excess energy than it acquires from the grid over the course of a monthly retail
billing period.
18 Energy Info. Admin., Table 5.6.A, supra note 9.
19 This Article refers to generators that are connected on the utility side of the customer meter as
"grid-connected generation" for ease of refierence. This is a misnomer, however, because all generation,
including generation located on a retail customers property on the customer side of the meter, is
connected to and part of the electric grid. Electricity does not recognize the difference in location; at all
times sufficient energy must be supplied to meet the aggregate demand of all users, and the system must
be kept in precise balance (supply equaling: demand) in order to prevent outages and serious damage to
facilities.
2o See Platts, MEGAWATT DAILY, at 2-10 (November 27, 2013).
2~ American Wind Energy Association, The Cost of Wind Energy in the U.S.,
2013
renewable energy.
Utilities point out that the differential is paid by other retail customers. Because
virtually all retail service is billed based on energy usage, net metering causes a reallocation of transmission, distribution, and reliability costs to those customers who do
not own distributed generation. Yet, the owners of distributed generation continue to rely
on utility service from the grid for back-up and supplemental energy (for example, at
night and when it is cloudy). Presently, the use of distributed generation in the U.S. is
sufficiently limited that the cost-shifting effects are minor. However, subsidies this large
can induce rapid changes. A report recently issued by the California Public Utilities
Commission forecasts that net metering will cost the State $1.1 billion per year in 2020.23
It also finds that the average net metering customer in California has an income almost
twice the states average, 24 confirming claims that net metering entails a wealth transfer
from low- to high-income consumers.
Net metering raises a number of legal issues that are just beginning to be explored.
The definition of "net metering service" in the Energy Policy Act of 2005 indicates that
Congress did not endorse the subsidy described above.25 Section 111 (d)(11) of the Public
Utility Regulatory Policies Act (PURPA)26 was added in 2005 to a list of retail
ratemaking practices that state utility commissions are required to evaluate for use in
their jurisdictions. This provision defines "net metering service" as follows"
Net Metering - Each electric utility shall make available upon request net
metering service to any electric consumer that the electric utility serves. For
purposes of this paragraph, the term "net metering service" means service
to an electric consumer under which electric energy generated by that
electric consumer from an eligible on-site generating facility and delivered
to the local distribution facilities may be used to offset energy provided by
the electric utility to the electric consumer during the applicable billing
period.27
23 See Cal. Pub. Utils. Commn, CALIFORNIA NET ENERGY METERING (NEM) DRAFT COSTEFFECTIVENESS EVALUATION (2013), available at http://www.cpuc.ca.gov/NR/rdonlyres/BD9EAD367648-430B-A692-8760FA 186861/0/CPUCN EM DraftReport92613.pdf.
24/d. at 110.
25 Energy Policy Act of 2005, Pub. L. No.109-58, sec. 1251, l l l(d), 119 Stat. 962 (codified as
amended at 16 U.S.C. 2621(d)(11)).
26 See id.; Pub. Util. Reg. Policies Act of 1978, Pub. L. No. 95-617, 11 l(d), 92 Stat. 3117, 3142-43
(codified as amended at 16 U.S.C. 2621(d)(10)(E)(11) (2006)).
27 Energy Policy Act 11 l(d); 16 U.S.C. 2621(d)(10)(E)(l 1).
42
VOLUME 4
28 Congress also did not define what it meant by "delivered to the local distribution facilities" in this
provision. It may have intended the energy credit to apply only to energy in excess of the customers onsite use, or it may have intended that all energy produced on-site be treated as energy provided to the grid
because all such energy substitutes energy that would otherwise be supplied from the grid. Either way, the
definition provides only for an energy credit, which is not what occurs in most jurisdictions.
29 FirstEnergy Corp. v. Pub. Utils. Comm n of Ohio, 768 N.E.2d 648 (Ohio 2002).
30 ld. at 650.
311d"
32 ld. at 652.
33 ld.
34 Pub. Util. Reg. Policies Act 210 (codified at 16 U.S.C. 824a-3(a) (2006)). FERC regulations
refer to these as "qualifying facilities." 18 C.F.R. 292.101(b)(1).
43
2013
without any notification to or approval from FERC.35 Most retail customers using net
metering rely on the mandatory purchase requirement to require their host utilities to
purchase their energy.36 Absent the PURPA requirement, utilities would generally have
no obligation to buy energy from distributed generators because the Federal Power Act37
(the law that applies in the absence of PURPA) does not obligate utilities to purchase
energy at wholesale.38
PURPA, however, while requiring utilities to buy, also caps the price paid to
qualifying facilities at the purchasing utilitys "avoided cost," which is defined as the cost
of energy that would have been supplied from the utilitys own system if the energy had
not been supplied by the qualifying facility.39 Because net metering compensates owners
for the energy supplied from distributed generation at the utilitys bundled retail rate, this
practice would appear to violate the avoided cost rate cap that is based on the cost of
energy alone.
The FERC, however, permits net meter customers to avoid this price cap. The
FERC holds that unless a retail customer with on-site generation is a net supplier of
energy to the grid over the state retail billing period (almost always one month), no sale
takes place under PURPA or the Federal Power Act, even if there are substantial
deliveries of energy to the grid during the month.4 In the absence of a "sale" to the
utility, FERC deems that no mandatory purchase of energy is taking place under PURPA
and the avoided cost price cap does not apply.41
The FERCs theory, that the existence of a "sale" can be determined by netting
metered inflows and outflows over the course of a month, was recently rejected in two
appellate cases involving FERCs use of this same theory to determine whether a retail
sale has occurred when generators acquire energy for station service purposes, the mirror
35 18 C.F.R. 292.203(d)(2010).
36 See Stephanie Watson, How Net Metering Works, HOW STUFF WORKS,
http://science.howstuffworks.com/environmental/green-science/net-metering2.htm (last visited Nov. 24,
2013).
37 16 U.S.C 791a-825r.
3s From the earliest days of Federal Power Act jurisprudence, courts have emphasized that wholesale
power transactions under the Federal Power Act are voluntary. Fed. Power Comm n v. Sierra Pae. Power
Co., 350 U.S. 348 (1956). In organized Regional Transmission Organization (RTO) markets, any
generator that signs a service agreement with RTO is permitted to bid its energy into the market and, if
dispatched, gets paid the locational marginal cost of energy, even if the generator does not have a contract
with a specific buyer.
39Am. Paper lnst. v. Am. Elee. Power Serv. Corp., 461 U.S. 402,404 (1983).
4o See MidAmeriean Energy Co., 94 F.E.R.C. P 61,340 (2001); Sun Edison LLC, 129 F.E.R.C. P
6,1146 (2009).
44
VOLUME 4
image of the net metering situation.47 In these two cases, the D.C. Court of Appeals held
that netting could not be used to determine whether a sale has taken place and that there
is a sale whenever energy is delivered from the generator to the utility and vice versa.43
The FERCs disclaimers of jurisdiction in MidAmerican and SunEdison may therefore be
subject to a renewed challenge, which, if successful, would require net metering rules to
be changed at the state level.
This same "netting" theory allows FERC to avoid facing the fact that the prices
inherent in net metering are discriminatory. The Federal Power Act prohibits charges for
wholesale energy that are "unduly discriminatory,a4 but this prohibition only applies if
there is a FERC-jurisdictional wholesale transaction. MidAmerican Energy and
SunEdison therefore provide a rationale for FERC to avoid addressing the huge
differential between the prices paid to distributed and grid-connected generators for the
energy they supply.
From both economic and environmental perspectives, energy from distributed
generation is no more beneficial than other forms of renewable generation. Energy
available to meet electric load, whether generated behind the retail meter or from gridconnected generation, provides equivalent value to the electric system. Therefore, the
price discrimination inherent in net metering cannot be justified based on differences in
the value of the services offered. If anything, distributed solar is less valuable than most
energy from grid-connected generators because the energy output of solar facilities varies
uncontrollably. Consequently, utilities must have sufficient grid-connected capacity on
hand to supply the entire load when solar generation is non-productive. For the same
reason, retail customers with distributed generation require access to grid-supplied energy
up to their full load at unpredictable times.45 Indeed, solar generation has a pernicious
effect on energy markets because energy from solar generators tends to suppress energy
market prices during peak-load periods, providing less revenue for grid-connected
42 See S. Cal. Edison Co. v. FERC, 603 F.3d 996 (D.C. Cir. 2010); Calpine Corp. v. FERC, 702 F.3d
41 (D.C. Cir. 2012).
43 See S. Cal Edison Co. 603 F.3d at 1000-01 ; Calpine Corp. 702 F.3d at 45.
44 16 U.S.C. 824e(a).
45 California is attempting to overcome this issue by requiring utilities to purchase storage
capacity using new technologies to help balance supply and demand. Order Instituting
Rulemaking Pursuant to Assembly Bill 2514 to Consider the Adoption of Procurement
Targets for Viable and Cost-Effective Energy (published October 17, 2013), Cal. Pub. Utils.
Commn, 2013 Cal. PUC LEXIS 569, available at
http ://docs.cpuc.ca.gov/Publ ishedDocs/Publ ished/G000/M078/K912/78912194.PDF.
Whether these alternative technologies will become available in sufficient quantities and at
a reasonable cost to replace balancing generation from the grid, and how long this may take,
is unknown.
45
2013
generation and falsely signaling to the market that grid-connected generation that is
needed for reliability is no longer economic.46
Broadly speaking, the current dispute over net metering is about managing the
growth of distributed generation during the period when growth is being fueled by
subsidies. If projections such as those made by Citigroup are correct, the cost of energy
from distributed generation will decline, eventually making it competitive with energy
from the grid without subsidies, and the pace of growth will accelerate. At some point,
distributed generation could be married to behind-the-meter storage capability, permitting
customers to disconnect from the grid or significantly limit their use of utility service.
Investments in distributed generation combined with storage should expand rapidly when
and if the combined cost of distributed energy and storage reaches parity with the cost of
bundled service from the grid.
In this scenario, as the demand for service from the grid declines and utilities need
to recover the cost of the grid from a smaller customer base, utilities will have to respond
by filing to raise rates. While this is occurring, a large body of customers will remain
dependent on electricity from the grid for a considerable period of time since many
customers may not have the resources to install distributed generators and others may
choose to take their electric service from the grid.
Even as this possible transition approaches, billions of dollars of grid investments
46 The Economist notes: "Renewables can depress wholesale prices, e.g. when the sun creates a
midday jolt. This discourages investors in the flexible, gas-powered generation needed to provide backup
for windless, cloudy days." Energiewinde, ECONOMIST, July 28, 2012, at 3. Citi Research, noting that
solar production causes lower utilization rates for conventional generation plants, concludes: "This would
in a perfect economic world lead to the closure of some higher heat rate gas plants, but the problem of
course is that much of this generation capacity needs to remain to cover lost generation on less sunny days
and at night, and through the winter .... " Citi Research, supra note 2, at 17.
46
VOLUME 4
are being made, mostly in response to regulatory mandates.47 As the use of distributed
generation grows, investors in grid assets will demand that regulators provide assurance
that their investments will be recoverable over time with a reasonable return. Otherwise,
the cost of capital will rise, exacerbating the problem of rising rates during the transition,
and in a worst case making it impossible for utilities to raise the capital needed to serve
remaining customers and compensate investors for their prior investments in the grid.
Around the turn of the century, the utility industry faced the prospect that
investments in generation might be unrecoverable. In those jurisdictions that permitted
"retail choice" of electricity suppliers, utility generation was unbundled and re-priced to
market. This competitive transformation produced debates over whether utilities were
entitled to recover the costs associated with prior generation investments from departing
customers when sunk costs exceeded the revenues recoverable at market prices. The
differential was known as "stranded costs."
Utilities argued that they were entitled by law to recover their stranded costs
pursuant to an implicit bargain with the government under which utilities had assumed an
obligation to serve the public in return for assurance that they would be compensated for
their prudent investments made to meet that obligation. Along with many scholars,
utilities argued that the law recognized this "regulatory compact" and that failure to
permit the recovery of stranded costs represented an unconstitutional taking of utility
property.48 Others argued that no such legal right exists and that allowing utilities to
recover their stranded costs would be inconsistent with the transition to competition.49
In the states that endorsed retail choice, legislative or regulatory compromises
were reached in which utilities recovered most of their stranded costs. The underlying
legal question was never resolved decisively in the courts. The stranded cost issue will be
different in the context of utility loss of demand to distributed generation. In this context,
stranded cost issues will not appear at one point in time (such as a legislative
47 For example, the electric industry is investing significant sums in response to state laws imposing
renewable portfolio standards. Large additional investments are being made to modernize the
transmission and distribution systems and incorporate so-called "smart grid" technologies. One utility
executive recently noted that halt the existing transmission grid is more than fifty years old, so sizable
investments to sustain it are inevitable. Lisa Barton, 1HS The Energy Daily, September 26, 2013, at 14.
Several northeastern states are requiring utilities to invest in "hardening" their systems in response to
recent storm-related outages. See Diana Cardwell et al., Hurricane Sandy Alters Utilities Calculus on
Upgrades, N.Y. TIMES, Dec. 28, 2012, at 131. Since 2005, the utility industry has also been subject to
mandatory reliability standards approved by the FERC that require significant ongoing investments in the
grid. 16 U.S.C. 824o (2005).
48 See, e.g., J. Gregory Sidak & Daniel F. Spulber, Deregulatory Takings and Breach of the
Regulatory Contract, 71 N.Y.U.L. REV. 851 (1996).
49 See, e.g., Susan Rose-Ackerman & Jim Rossi, Disentangling Deregulatory Takings, 86 VA. L. REV.
1436 (2000).
47
2013
determination to permit retail customer choice) but will emerge gradually as utilities and
regulators respond to reductions in aggregate demand for utility service. The stranded
cost issue may also include stranded investment in transmission and distribution assets as
well as generation. Further, stranded cost recovery will have to be addressed in the
context of a declining utility customer base that may ultimately become too small to
support recovery. In the last round of stranded costs, customers changing power suppliers
remained as transmission and distribution customers of the utility and stranded costs
could be recovered in the rates for these unbundled services.
A. Cost Recovery for Regulated Assets
Assuming distributed generation becomes economical without subsidies, retail
customers will be making independent decisions about whether to reduce or jettison
utility service, and these decisions will occur over time as the relative economics of gridproduced and distributed electricity change. The stranded cost issue is therefore likely to
arise in individual rate proceedings as utilities file to increase their rates to offset the
effects of declining demand and regulators respond by requiring offsetting cost
reductions to cabin these rate increases to remaining captive customers. As this process
unfolds, history teaches that there will be disputes over the prudence of past utility
expenditures and over whether particular assets remain "used and useful" and thus
eligible for cost recovery.
The Supreme Courts decision in Duquesne Light Co. v. Barasch holds that a
utilitys Constitutional right to recover its costs to serve the public is not infringed by
regulatory decisions disallowing individual items of cost.5 An unlawful "taking" occurs
only when the overall level of rates produces insufficient revenue to satisfy the "endresult" test established in FPC v. Hope Natural Gas Co.~1 Hope held that overall rate
levels "which enable a company to operate successfully, to maintain its financial
integrity, to attract capital, and to compensate its investors for the risk assumed... " are
sufficient to pass Constitutional muster.~2 The Hope test is fairly subjective and may not
produce rates that are attractive to investors. Duquesne suggests that stranded cost issues
will have to be addressed through rate litigation, which means the availability of relief to
distressed utilities may be delayed.~3 Without legislation, moreover, the remaining
50 488 U.S. 299, 314-15 (1989) [hereinafter Duquesne].
51 320 U.S. 591,602-03 (1944) [hereinafter Hope].
52 !d. at 605.
53 The takings issue will recur if demand declines further over time. If demand declines after rates
have been set, utilities will once again under-recover their costs, forcing them to file for another round of
rate increases to offset the effect of the loss of load since the prior rate case. Utilities will be playing
"catch-up" to get the revenues needed to recover their costs and attract investment.
48
VOLUME 4
customer base will eventually become too small, forcing utilities to try and convince
regulators to permit them to charge exit fees to departing customers. For these reasons,
substantial pressure will arise to resolve stranded cost recovery issues through legislation.
Legislative fixes will be a hard sell politically, but legislators may be convinced to act in
order to prevent important energy policy issues from being decided in the courts.54
In determining which facilities remain used and useful, regulators will have to
balance reliability and environmental effects as well as economics. They will also have to
address complex competing interests. For example, utilities supply power using a
combination of owned generation and purchases in the form of FERC-jurisdictional
power purchase agreements (PPAs), most of which are the product of regulatory
mandates. Federal law protects FERC-jurisdictional PPAs by requiring state regulators to
pass through the costs incurred by utility buyers in their retail rates.5~ But this "trapped
cost" protection will be a two-edged sword for utilities that face premature retirement of
their own generation while continuing to pay third parties for purchased power. FERC
may therefore face a host of contract termination disputes. The transition will be made
more difficult by the fact that most utility-owned generation is subject to state regulation,
PPAs are regulated by FERC, and substantial generation is publicly owned and not
subject to traditional rate regulation.
Generation cost recovery is likely to be under pressure before transmission and
distribution. For the most part, the electric delivery system operates as an integrated
network, and it will be difficult to identify specific assets that are no longer required as
demand declines. Nonetheless, a substantial portion of the cost of electricity consists of
investments in transmission and distribution, and a regulator under pressure to reduce
rates would eventually have to pay attention to the cost of these facilities. Stranded
transmission and distribution cost issues will play out simultaneously at FERC (which
regulates most unbundled transmission) and in state proceedings (for bundled
transmission and local distribution) unless Congress changes jurisdictional
responsibilities.56
54 Assuming much of the utility industry will have moved into other business lines, including
distributed generation, legislators could be less inclined to provide full stranded cost relief in these
circumstances.
55 See Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953,970 (1986); Entergy La., Inc. v. La.
Pub. Serv. Comm n, 539 U.S. 39, 48 (2003).
56 In Texas, the Public Utility Commission of Texas (PUCT) regulates all of these functions. In other
states where retail rates remain bundled, states will have most of the control over this process for both
transmission and distribution assets, unless the FERC chooses (or is forced) to assume jurisdiction over
interstate transmission costs that are bundled into retail rates pursuant to the Supreme Courts opinion in
New York v. FERC, 535 U.S. 1 (2002).
49
2013
Disputes will likely arise over which assets should be targeted for early retirement.
The interstate transmission grid, for example, is an integrated network of facilities owned
by a large number of entities.57 One can imagine a form of competition among
transmission asset owners to protect their assets and avoid stranded costs. Most publiclyowned transmission is not subject to FERC or state jurisdiction, which will further
complicate the process.
As this process unfolds, utility investors will be watching. As cost recovery
uncertainty rises, debt and equity investors will demand higher returns, making it more
expensive to maintain a reliable grid and putting further upward pressure on utility rates.
At some point, the risks could be large enough that investors will not provide capital on
acceptable commercial and regulatory terms, and investment in the grid will become
problematic, even as many consumers continue to rely on it.
B. Unregulated Generation
In regions where utilities have already divested their generation to merchant power
producers, capacity and energy is transacted in wholesale markets under the control of
RTOs, subject to overarching FERC regulation. Market forces will therefore play a
significant role in determining which generators survive as demand declines. The owners
of unregulated generation have assumed the market risk and are much less likely to have
valid stranded cost claims.
But electricity markets will only provide a partial solution. With recent reductions
in natural gas costs and flat demand, grid-connected generation is already under
considerable economic pressure, and regulators are being asked to approve additional
revenue streams to support reliabili .ty and new investment. In response to disputes over
market rules, regulators are making critical decisions on the economic margin. Therefore,
even where generation is subject to market forces, the future portends complex regulatory
disputes over how wholesale markets should be organized to respond to reductions in the
demand for energy from the grid. At the core of these disputes, an enduring tension will
exist between economics, reliability, and fairness.
57 FERC has recently decided that more entities should be eligible to build and own transmission
facilities. Transmission Planning and Cost Allocation by Transmission Owning and Operating Public
Utilities, Order No. 1000, FERC Stats. & Regs. 31,323 (2011), order on reh g, Order No. 1000-A, 139
FERC 61,132, order on rehg, Order No. 1000-B, 141 FERC 61,044 (2012), appeal docketed, S.C.
Pub. Serv. Auth. v. FERC, No. 12-1232 (D.C. Cir. 2012).
5O
VOLUME 4
IV.
Conclusion
51
12/23/14 4:08 PM
Exhibit 34
Hello,
th
On December 1_1 , the PUC ElM Group and the California PUC submitted
joint comments to the CAISO in support of the ElM governance proposal.
The CAISO Board of Governors will discuss the ElM during their meeting
t"
. The
agenda and other meeting materials are
on December 18"and 19
available via:
http://www.caiso.com/Documents/PublicComment-PUC ElM Group_CPUC CommentsGovernanceProp_osal_____=.p_d._~f
Please feel free to contact Travis Kavulla (tkavulla.@_mt__=go__v) or Rebecca
Johnson (riohnson(~.wes~tgov.~orF~) if you would like additional
information.
Rebecca
Rebecca Johnson
PhD/Policy Analyst
Western Interstate Energy Board
Page 1 of 2
12/23/14 4:08 PM
Exhibit 34
Page 2 of 2
12/23/14 4:08 PM
Exhibit 35
FYI
Sent from my iPhone
Page 1 of 1
12/23/14 4:09 PM
Exhibit 36
http://www.csl~.orl~/events/webinar/default.aspx
Mary Collins
Director, Strategic Initiatives
Marketing and Communications
PNM
414 Silver Avenue SW, MS-0605
Albuquerque, NM 87158
Work: 505.241.2214
Cell: 505.242.2010
Page 1 of 1
12/23/14 4:09 PM
Exhibit 37
gracias
Page 1 of 3
12/23/14 4:09 PM
Exhibit 37
Mary
Page 2 of 3
12/23/14 4:09 PM
Exhibit 37
Page 3 of 3
12/23/14 4:09 PM
Exhibit 38
Page 1 of 3
12/23/14 4:09 PM
Exhibit 38
IRegistration Opens
lat noon Today!!
2014
Sponsors
Page 2 of 3
12/23/14 4:09 PM
Exhibit 38
Page 3 of 3
12/23/14 4:33 PM
Exhibit 39
FYI
From: Miles Keogh [mailto:mkeoqh@naruc.org]
Sent." Thursday, January 02, 2014 8:55 AM
To; National Energy Risk Lab
Subject: [risklab] The National Energy Risk Lab in DC, Feb 12-13 2014
Friends,
NARUCs National Energy Risk Lab is running on February 12 and 13 in
Washington DC. Youll definitely want to come participate.
The Lab brings together decision-makers from every corner of the
electricity world in an interactive format- a game - that explores where the
Page 1 of 2
12/23/14 4:33 PM
Exhibit 39
power sector is headed. Youll work in a team to shape the electric sector,
facing real-world challenges using pretend power plants and "monopoly"
money, and seeing the implications of different choices. Instead of hearing
a few experts speak youll hear perspectives from all the participants - and
theyll hear from you.
There are only 360 seats, first-come, first-served. Travel support and
registration fee waivers are available to State participants, in part thanks to
support from the US Department of Energy. If youve played it before,
dont worry! Weve partnered up with the Nicholas Institute at Duke
University to soup up the game and make it run smoother, smarter, and
faster (no more little calculators!)
Learn more and register online at:
www. na ru c. o rg!e n e~rg. riy_~k
Regards, Miles
Miles Keogh
Director of Grants & Research
National Association of Regulatory Utility Commissioners (NARUC)
1101 Vermont Ave. NW, Suite 200
Washington, DC 20005
ph, 202-898-2217
What will the grid look like in 2030? Find out at NARUCs National Energy Risk Lab, Feb
12-t3, in Washington DC. http://www.naruc.org/energyrisk
Page 2 of 2
Exhibit 40
June 2013
SuMo TuWe Th Fr Sa
1
2 3 4 5 6 7 8
9 10 11 12 13 1415
1617 18192021 22
2324 25262728 29
3O
July 2013
SuMo TuWe Th Fr Sa
1 23456
7 8 910111213
1415 16 17 18 19 20
21 22 23 24 25 26 27
2829 30 31
iTuesday, June 18
Wednesday, June 19
Thursday, June 20
Friday, June 21
Saturday, June 22
Sunday, June 23
10/28/2014 8:59 PH
Exhibit 40
July 2013
SuMo TuWe Th Fr Sa
I 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
Monday, July 22
Tuesday, July 23
Wednesday, July 24
Thursday, July 25
August 2013
SuMo TuWe Th Fr Sa
123
4 5678910
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30 31
Friday, July 26
Saturday, July 27
Sunday, July 28
10/28/20148:59 PM
Exhibit 40
August 2013
SuMo TuWe Th Fr Sa
123
4 5 6 7 8 9 10
12
13
141516
17
11
18 192021 222324
25262728293031
September 2013
SuMo TuWe Th Fr Sa
1 2 3 4 S 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
2223 24 25 26 27 28
2930
Tuesday, August 27
9:00am - 5:00pro 12-00380-UT - Workshop on High Cost Support - 9;00am - 5:00pm 11-00001-UT 13-00085-UT AV Water Co., LLC
Sandra Skogen (PERA BLD.G 4TH FLOOR HEARING ROOM)
- Mediation (Requested by Bill Herrmann) (LS) 9am-Spin - (Ground
Floor Board Room)
Wednesday, August 28
Thursday, August 29
Friday, August 30
Saturday, August 31
Sunday, September 1
14
10/28/2014 8:59 PM
12/23/14 4:09 PM
Exhibit 41
Page 1 of 1
A White Paper
Release 1.0 - July 2014
Raymond L. Gifford
Gregory E. Sopkin
Matthew S. Larson
Release 1.0
Release 1.0
universe of regulators (public utility commissions
(PUCs), environmental regulators, gubernatorial
energy offices) in a state statutory and
administrative context.
Obtain and concentrate jurisdiction in the
appropriate regulatory bodies over all affected
entities, including current non-state jurisdictional
entities like cooperatives and municipal utilities.
Institute carbon-driven resource planning and
dispatch in restructured markets to ensure adequate
capacity and reliability.
Structure enforceable and constitutional multi-state
SIPs with interstate enforcement mechanisms,
which may well require Congressionally-approved
interstate compacts to satisfy EPA SIP approval
criteria.
II.
and final goals for each state in pounds of CO2 per net MWh.
CO2 Emission Guidelines at 643-645. The interim goals
apply from 2020-2029, while the final goal applies in 2030.
The interim goals as currently structured present a unique
challenge for some utilities, as the 2020-2029 interim goal is
"the simple average of the annual rates computed for each of
the years from 2020 to 2029." CO2 Emission Guidelines at
355. In addition, "[t]o be approvable, a state plan must
demonstrate that the emission performance of affected EGUs
will meet the interim emission performance level on average
over the 2020-2029 period." CO2 Emission Guidelines at
409. Part of the justification for the 2020-2029 interim goals
is that "EPA recognizes the importance of ensuring that,
during the proposed 10-year performance period (2020-2029)
for the interim goal, a state is making steady progress toward
achieving the required level of emission performance." CO2
Emission Guidelines at 411. The need for de facto ongoing
compliance on a trajectory could be difficult for utilities that
may want to engage in long-term system planning such that
it may miss interim goals in some years but would ultimately
Release 1.0
A state is free to determine how it will achieve the
EPA-set CO2 performance goal, but EPA made certain
general assumptions, applied to all states, to calculate
each individual performance goal.
EPA calculated the CO2 perfor~nance goal using
four "building blocks": (l) assuming a six percent heatrate efficiency improvement to each existing coal-fired
EGU; (2) assuming a 70 percent capacity utilization
rate for combined-cycle gas-fired EGUs; (3) calculating
a renewable portfolio standard (RPS) based on the
average RPS of states in the same region of the country,
and assuming usage of nuclear power plants based on
existing and expected nuclear units; and (4) assuming a
one and one-half percent per year reduction in electric
usage through demand-side management (DSM)
measures.
III.
b. Illustrative Application of the
Building Blocks
Release 1.0
compliance "plan pathways" are discussed in a
accompanying Technical Support Document (TSD) to
the rule.7 The TSD details the states options:
Rate-based CO2 emission limits: "Rate-based
emission limits would apply a Ib CO2/MWh
emission limit to affected EGUs. Depending on a
states approach, compliance flexibility could be
provided through different mechanisms, such as
averaging among affected sources, or the use of
tradable credits for avoided CO2 emissions
resulting from end-use energy efficiency and
,,8
renewable energy measures ....
Mass-based COz emission limits: "Mass-based
emission limits would apply either an individual
limit on CO2 tons emitted from an affected EGU or
establish a finite CO2 emissions budget for a group
of affected EGUs. The latter approach is typically
implemented through a tradable allowance system.
With mass-based emission limits, end-use energy
efficiency measures that avoid EGU CO2 emissions
could be a major component of a states overall
strategy for cost-effectively reducing EGU CO2
emissions, but would be complementary to the
enforceable state plan (i.e., not included as
enforceable measures in a state plan). These actions
could be used to help a state cost-effectively
achieve the CO2 emissions limits, or to achieve
other policy goals, but CO2 emissions performance
would be assured through the enforceable limit on
mass emissions from affected EGUs.9
Portfolio approach: "The second basic state plan
approach uses a portfolio of actions, in which a
state plan includes multiple programs and measures
that are designed to achieve either a rate-based or
mass-based emissions performance goal for
affected EGUs .... [A] portfolio approach is
distinguished from an emission limit approach by
the fact that achievement of the full level of
required emission performance for affected EGUs
specified in the plan is not ensured through the
7 See EPA Office of Air and Radiation, State Plan
Considerations - Technical Support Document for Carbon
Pollution Emission Guidelines for Existing Stationary
Sources: Electric Utility Generating Units, Docket ID No.
EPA-HQ-OAR-2013-0602 (June 2014), available at
http://www2.epa.gov/sites/production/files/201406/documents/20140602tsd-state-plan-considerations.pdf.
81d at 7.
91d. at8.
WILKINSON)BARKER) KNAUER) LLP
Release 1.0
also engage in an IRP process. However,
state public utility commissions often do
not regulate these utilities. As a result,
implementation of a portfolio approach by
these entities would introduce practical
enforceability considerations under a state
plan.12
LLP
Release 1.0
authority. Therefore, states will likely need to pass carbon reductions to itself. Furthermore, EPA would
legislation to enforce carbon reductions set forth in a take jurisdiction over where carbon reductions come
SIP. This is not to say that all states will necessarily
from and what makes up an adequate portfolio of
need legislation, but in particular to take advantage of reductions -- the right combination of heat rate
improvements, increased CT dispatch, and renewable
the portfolio approaches detailed by EPA, a new
and demand response. In short, a state would be
institutional arrangement between PUCs and state
handing over its Section l ll(d) prerogatives to the
environmental regulators will be necessary. By the
federal agency, which has little to no experience with
same token, even for states adopting a source-based
approach, the environmental regulator will likely need issues such as reliability, cost analysis or demand
response verification. Thus, while defiance of EPA is
to coordinate with the PUCs to fully appreciate cost and
reliability concerns.
certainly an option, the potential downside of such an
approach could be precipitous for states electing such a
Enacting legislation to create the new institutional path. ~ 7
arrangements may be difficult in vertically-integrated
states.
Generation & Transmission (G&T)
IV.
C02 SIP Implementation in Vertically
organizations, rural electric cooperatives, and
Integrated States
municipalities have traditionally been opposed to
ceding generation planning to an outside regulatory
a. General Resource Planning Issues
agency (assuming, arguendo, that the outside agency
has jurisdiction over these entities in the first instance).
In vertically-integrated states, modem IRPs look at
Municipal and public power utilities have always self- issues that go well beyond a utilitys self-build
determined their resource plans. While G&Ts are
generation plans. Investor-owned utilities present
required in some states to obtain approval to construct a
estimates to state public utility commissions for future
new generation plant, they have not been required to
load, customer growth, fuel (gas and coal) prices, cost
obtain approval of their IRPs. In addition, the rivalrous of renewables, resource margins, and other data to
nature of different utilities interests threatens whos support proposed IRPs. In addition to any self-build
ox is being gored rivalries, where the costs and pains proposals, these plans involve power purchases from
will be difficult to apportion among utilities with independent power producers (IPPs), renewable energy
dramatically different carbon profiles.
portfolios, and DSM. Typically, state policy goals or
d. What if a State Declines to Participate?
A final option states might consider with carbon
rule implementation would involve the affirmative
refusal to participate in devising a SIP. This could
occur through the failure of legislation creating the
institutional administrative structure described earlier.
Or, it could be conceived as an affirmative policy
stance of the state to not submit a SIP. 16
While a state may chart such a course, the outcome
would be EPA implementing its own Federal
Implementation Plan (FIP) and enforcement authority
under the Clean Air Act. The FIP would, in essence,
amount to EPA taking over resource planning in the
given state and subsuming enforcement powers for
16 There are cooperative federalism schemes in the utility
sphere where states have opted-out. Alaska and Hawaii, for
instance, have not passed statutes to participate in the federal
PHMSA program. Virginia, quite notably, refused
to participate in implementation of the Telecommunications
Act of 1996.
WILKINSON)BARKER) KNAUER) LLI
Release 1.0
PUC is much more likely to adjudicate the resource
plan. In the alternative, with a pure source-based
compliance plan, the environmental agency might be
adequately suited to take the lead. However, the PUC
would still need to be involved because the state will
b. State PUC or Environmental Regulator as"
also have cost and system reliability concerns. In either
Lead Agency
case, states will be wrestling to create a new hybrid
regulatory process that likely involves both the PUC
Portfolio-based metrics, i.e., non-source-based and the environmental regulator,z
emission limits, strongly resemble the resource
The state agency devising the Carbon IRP also will
planning function traditionally performed by state
utility commissions: reliance on existing and under- have to take on the role as CO2 SIP enforcer. Normally,
construction natural gas CC units to up
utilities present a resource plan to the
Portfolio-based
metrics,
to 70 percent capacity factor; expansion
state commission, and the
commission
may approve, deny or
of renewable generation; reliance on
i.e., non-source-based
modify the plan. A utility gains a
existing and under-construction nuclear
emission limits, strongly presumption of prudency by
facilities; and increase of demand-side
following the measures in the
energy efficiency to one and one-half
resemble the resource
approved plan. A state agency
percent annually. A state may choose to
planning
function
enforcing the EPA Section 11 l(d)
enforce the measures utilized by the
rule must be able to enforce
EPA to determine carbon reduction
traditionally performed
"measures that reduce EGU CO2
amounts for the state. In the alternative,
by state utility
emissions" and implement "corrective
if these prove impracticable or
actions, if necessary.2~ This changes
unworkable, a state may order a variant
commissions.
the consequences of a missed IRP
of these measures or simply mandate
closure of carbon-emitting EGUs.
decision: the state must be able to
certain outside-the-fence metrics. Although the
proposed rule does not require states and utilities to
actually implement these metrics, they are the root of
each CO2 performance goal.
In any case, entities that own or dispatch EGUs and that have not been subject to state authority - will
inevitably find themselves under the umbrella of state
COz regulations by a designated agency. That agency
could be the state PUC, or the state environmental
agency, or some new hybrid of the two agencies.
With a portfolio compliance approach in particular,
the state PUC makes the most sense based on its
exp~erience and expertise with Building Blocks 2, 3 and
4.~ State environmental agencies may be given a
consulting role similar to the process employed in the
Clean Air-Clean Jobs Act in Colorado,~9 but the state
~8 It could be argued that state environmental agencies should
be given the authority to develop and impose carbon
reductions on EGUs, as these agencies have traditionally
been involved with implementation of EPA pollution
reduction measures. However, given the IRP-like "building
block" approach of EPA in its proposed rule, it appears more
appropriate for state PUCs to have primary authority.
Nevertheless, one of the political disputes that may develop
is over which agency should be tasked with this important
role.
~~ See Colorado PUC Docket No. 10M-245E; Colorado
House Bill 10-1365.
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c.
The need for state legislation in vertically The proposed CO2 Emission Guidelines do include
integrated states creates a significant timing issue. Thea one- or two-zear extension provision that involves a
proposed COz Emission
Guidelines will not be finalized
until June 2015 under EPAs
current timeline, and (absent an
EPA-granted extension of time)
states must submit SIPs by June
2016. Most state legislative
sessions are conducted in the
early months of the calendar year,
e.g., January to April or May. In
addition, some state legislatures
do not meet every year. For
example, the state legislative
sessions of Montana, Nevada,
North Dakota and Texas occur
biennially, in odd-numbered
years.
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However, it is unclear whether the EPA would
allow a one- or two-year delay for a state that has not
both passed legislation effective before June 30, 2016
and have a state agency-determined initial plan
approach with "quantification of the level of emission
performance that will be achieved in the plan.26 The
language of the CO2 Emission Guidelines appears to
require a demonstration that the plan will meet the
required carbon reductions and be enforceable,
suggesting that the legislation and state agency
determination must be complete for any initial plan and
related extension of time to submit a complete plan to
be approved.
COs SIP Implementation in Restructured
States
Release 1.0
would create a host of legal issues, from potentiallyachieves appropriate power balance, satisfies unit
forcing state officials to enforce obligations they do notoperating limits, and minimizes both fuel cost and CO2
have authority to enforce under state law to EPA emissions. Based upon our rudimentary understanding
indirectly engaging in resource planning and directing
of environmental dispatch protocols, the use of a
system dispatch. Another concern in restructured states carbon imputation in bid pricing represents a clear way
is that states would pass new legislation implementingto implement an environmental dispatch strategy.
a new regulatory paradigm to allow for enforcementHowever, the CO2 Emission Guidelines do not appear
against the relevant entities and actors. Once thisto provide for such a compliance strategy in a SIP. In
avenue is created under state law, it creates an
opportunity for EPA to come in and regulate these
It is unclear how a SIP, or a
entities indirectly through the FIP under the new state
multi-state SIP for that matter,
laws. Indeed, the creation of new regulatory paradigms
creates a similar issue in vertically-integrated states as
would be built around a
well.
dispatch protocol for an RTO.
Another concern in restructured
states is that states would pass
new legislation implementing a
RTO boundaries. This creates its own problems, efficiencies by coordinating the state plan approaches
applied throughout a grid region.29 Needless to say,
particularly in states like Missouri, Illinois, Indiana and
Arkansas, where two separate RTOs operate within the the roles of RTOs and environmental dispatch in
state. Nevertheless, we turn to the institutional issues effectuating CO2 Emission Guidelines are an open
associated with multi-state plans below.
question in this rulemaking.
c. Environmental Dispatch as a Compliance
Strategy
Release 1.0
EPA
proposes ]
The notion that states can jointly submit a SIP, and in turn rely on one another to
Considerations
partner states."
Release 1.0
aggregate with partner states.34 This aggregation EPAs understandable emphasis on enforceability,
occurs notwithstanding whether states pursue a rate- however, it is questionable whether RGGI as currently
structured could submit a SIP that would satisfy EPAs
based or mass-based compliance approach:
four general criteria.
[S]tates taking a rate-based approach would
RGGI is a cap-and-trade system for CO~ emissions
demonstrate that all affected EGUs subject to
from
fossil-fuel fired EGUs with 25 MW or greater
the multi-state plan achieve a weighted average
CO2 emission rate that is consistent, in generating capacity. The following nine states
aggregate, with an aggregation of the state- currently participate: Connecticut, Delaware, Maine,
specific rate-based CO2 emission performance Maryland, Massachusetts, New Hampshire, New York,
goals established in the emission guidelinesRhode Island, and Vermont. This regional CO2
that apply to each of the participating states. If emissions reduction strategy began in 2005, when
states were taking a mass-based approach, seven states signed a Memorandum of Understanding
participating states would demonstrate that all (MOU) committing the state to the "CO2 Budget
affected EGUs subject to the multi-state plan Trading Program." The MOU set an initial regional
emit a total tonnage of CO2 emissions emission cap of 121.2 million short tons; this regional
consistent with a translated multi-state mass- base annual CO2 emissions budget was then
based goal. This multi-state mass-based goal apportioned to each state individually based on its
would be based on translation of an specific emissions history. EPA explains that:
aggregation of the state-specific rate-based CO2
The program works as a coordinated regional
emission performance goals established in the
emission guidelines that apply to each of the
whole through a shared emission and
participating states.35
allowance tracking system and allowance
auction process, but is implemented in
accordance with materially consistent, standAccordingly, regardless of the emission calculation
approach chosen, multi-state SIPs are submitted jointly
alone state regulations and individual statutory
and based upon aggregated performance goals. States
authority. These regulations recognize CO2
allowances issued by other participating states
would "rise and fall" together based on collective
performance and compliance with the multi-state SIP.
for use by affected EGUs when complying with
each states emission limitation, but contain all
EPA also may include state-specific requirements
the necessary components to administer the
for multi-state plans. The proposed rule asks whether
program requirements on an individual state
basis.37
states submitting multi-state plans should also be
required to provide individual submittals that: (1)
provide state-specific elements of the multi-state plan;
As a result, each state develops its own individual
and (2) address all elements of the multi-state plan.
regulatory and/or statutory structure based on an
agreed-upon "Model Rule" that provides a framework
b. RGGI as the Prototypical Multi-State SIP
for the development of individual state proposals.
The CO2 Emission Guidelines reference the mass-based plan that demonstrates emission performance by
Regional Greenhouse Gas Initiative (RGGI) onaffected EGUs on a multi-state basis. Additional states may
numerous occasions as an example of a regime thatalso choose to join a multi-state plan. The mechanics of
addresses CO~ emissions on a multi-state, regional translating rate-based goals into mass-based goals and
basis, and EPA cites RGG1 as an example of a group of considerations related to multi-state plans are discussed
below in Section VIII on state plans.")
states that may submit a multi-state SIP.36 Given
.~7 State Plan Considerations at 18 (further providing that
341d at 116,438.
35 ld at 438.
36 Id. at 360 ("[T]he EPAs approach allows states to submit
multi-state plans. The EPA expects this flexibility to reduce
the cost of achieving the state goals and therefore expects it
to be attractive to states. For example, the RGGIparticipating states could choose to submit a multi-state
WILKINSON ) BARKER) KNAUER) LLP
Release 1.0
act as the states directors.42
While this CO2 budget trading program is enforceable
at the state level, EPA admits that "enforceability
Release 1.0
would likely render the SIP unenforceable, and thus notnoncompliance; it is these potential noncompliance
approvable by EPA, absent an interstate enforcement scenarios that would lead to an action by one state
mechanism.
against another state. In February 2013, the RGGI cap
was lowered to 91 million tons for 2014 with 2.5%
d. Member State Rivalries and the Practical Need annual reductions until 2020. Accordingly, the future
for Enforcement Authority
may hold more rivalrous member state relationships in
RGGI with a more restrictive cap.
From a practical standpoint, member states
themselves may want interstate enforcement authority e. Enter the Interstate Compact
to ensure that all member states fulfill their obligations
The U.S. Constitution expressly addresses what
under a multi-state SIP. Member state interests could
become rivalrous if and when a state does not fulfill itsamounts to contracts between individual states. Article
SIP obligations or through issues involving interstateI, section 10, clause 3 of the U.S. Constitution provides
capacity needs.45 For instance, in many cases aroundthat "[n]o State shall, without the consent of Congress
the nation, electric capacity serving demand in one state... enter into any Agreement or Compact with another
comes from another state. A multi-state program State." Interstate compacts can create enforceable
makes sense to ensure that a given states parochial obligations between parties, and the U.S. Supreme
carbon interests do not negatively affect another statesCourt has held for nearly 200 years that compacts are
capacity needs.
contracts between individual states.46
Under any rivairous scenario, states would want the
Courts have discussed "some of the indicia of
ability to enforce the multi-state SIP provisions againstcompacts," specifically "establishment of a joint
the offending member state. While it is valid to pointorganization for regulatory purposes; conditional
out that state rivalry has not been an issue in RGGI,consent by member states in which each state is not
there is no interstate enforcement provision in thefree to modify or repeal its participation unilaterally;
RGGI structure. Moreover, and equally as important, and state enactments which require reciprocal action for
the RGGI cap of allowed emissions from regulated their effectiveness.47 Whether Congressional approval
power plants was 165 million tons in 2013, but actual of an interstate compact is required, however, depends
2012 emissions were only 91 million tons. Emissionsupon the nature &the agreement:
were lower than previously anticipated due to low
To form a compact, two or more states
natural gas prices, energy conservation measures, and
typically negotiate an agreement, and then each
the struggling economy. Accordingly, with a cap that
high, no member state was in severe danger of
state legislature enacts a law that is identical to
the agreement reached. Once all states
specified in the compact have enacted such
45 For example, the Missouri Joint Municipal Electric Utility
laws, the compact is formed. In some cases, if a
Commission (MJMEUC) is authorized by Missouri state law
compact affects the balance of power between
to operate as an electric utility for the benefit of the
the states and the federal government or affects
combined requirements of its members. MJMEUC has
a power constitutionally delegated to the
ownership interests in coal-fired generation units in
federal government, it must also obtain
Missouri, Arkansas, lllinois and Nebraska. Accordingly,
congressional consent. In consenting to a
MJMEUC customers are dependent upon out-of-state
generation to meet its capacity needs. If one of these states
COmnsPaCt, Congress may add certain conditions
Release 1.0
federal structure or effects on the interest of nonFor example, a 2007 Government Administrative compacting sister states, Congressional approval is
Office (GAO) study identified 76 environmental and required for the compact.55
natural resources interstate compacts, and 59 required
Congressional approval.49 The U.S. Supreme Court has
f Multi-State SIPs and the Compact Clause
wrestled with the line of where Congressional approval
The multi-state enforcement issues with RGGI lead
of interstate compacts is needed and where it is not
to the conclusion that a contract, in the form of an
several times. In 1893, the Supreme Court held:
Looking at the clause in which the terms
"compact" or "agreement" appear, it is evident
that the prohibition is directed to the formation
of any combination tending to the increase of
political power in the states, which may
encroach upon or interfere with the just
supremacy of the United States.s
Release 1.0
unilaterally withdraw as they can under RGGI. If avenue raises a constitutional issue that has not been
member states could unilaterally withdraw, it would visited by the Supreme Court for many years.
Accordingly, it provides an interesting academic
raise questions as to whether the multi-state SIP was
enforceable between member states and could satisfy
question at a minimum and a likely litigation path for
any party seeking to challenge the
EPAs general criteria.
It would almost certainly appear
validity of a multi-state SIP.
Assuming an agreement or
multi-state SIP is in fact a compact, that any interstate compact would
the next question is whether the require Congressional approval
compact is "political." As to on the basis of effects upon nonfederal structure, a multi-state SIP
would appear to impact the federal
compacting sister states.
structure given that the Clean Air
Act is a federal statute and the CO2
g. CongressionaI Approval
and Timing Issues
Guidelines, at 72.
Interstate Compacts GAO Report at 6.
Release 1.0
energy.59 The Clean Air Act contains no such
provision. Accordingly, Congressional approval will
come in either the form of express legislation or
implication through the actions of states and the federal
government. While the express approval avenue could
decrease the likelihood of future litigation under the
Compact Clause, it also injects significant timing risk
into the process because any multi-state SIP would be
contingent upon approval of legislation. The "implied
consent" avenue mitigates the timing risks, but carries
with it the possibility that litigation could be brought
for violation of the Compact Clause since no express
action occurred. Under these circumstances, the
member states would have to establish that Congress
did in fact provide implicit consent.
VII. Initial Conclusions and Takeaways
12/23/14 4:09 PM
Exhibit 43
From:
To:
Date:
Subject:
We got the issue with Mr. McSherry resolved. We have put the irrigation meter on
the correct rate. We have adjusted his bill back 4 years, which resulted in a credit
of approximately $6,000. From the e-mail correspondence I have seen he is happy
with the results.
Mary
Can you send me the e-mail about the back billing issue? Also, can I set up a
meeting with Commissioner Lyons and Ron on Wednesday, June 26th at 1 to
discuss San Juan?
Page 1 of 2
12/23/14 4:09 PM
Exhibit 43
Thanks
Mary
Mary Collins
Director, Strategic Initiatives
Marketing and Communications
PNM
414 Silver Avenue SW, MS-0605
Albuquerque, NM 87158
Work: 505.241.2214
Cell: 505.242.2010
Page 2 of 2
12/23/14 4:09 PM
Exhibit 44
M a ry,
Commissioner Montoya can indeed meet on Friday June 28, however
could we move it up just a bit to 3:00-4:30PM. Thank you!
Faye
From: Collins, Mary [mailto:Mary.Collins@pnmresources.com]
Sent: Wednesday, June 12, 2013 4:18 PM
To: Gibson, Faye, PRC
Subject: RE: Another meeting with the Commissioner
Thank you! That date seems to work best for the people that will need to
be at the meeting from our side.
Welcome back!
Mary
Page 1 of 3
12/23/14 4:09 PM
Exhibit 44
June 28 so far looks open, I will just double check with her to see if that is
okay.
Let me ask her and I will get back to you.
Thank you!
Faye
Mary Collins
Director, Strategic Initiatives
Marketing and Communications
PNM
Page 2 of 3
Exhibit 44
12/23/14 4:09 PM
Page 3 of 3
)
)
)
)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
Motion and Supporting Brief of New Energy Economy for Recusal of Public Regulation
Commissioners Montoya and Lyons was filed today and was delivered as indicated on December
24, 2014 to the parties listed below:
Benjamin Phillips
Bradford Borman
Mark Fenton
Bruce C. Throne
Erin Overturf
Douglas Howe
Charles Kolberg
Thomas Wander
Charles Noble
David Van Winkle
Noah Long
Camilla Feibelman
Don Hancock
Nellis Howard
Mariel Nanasi
Lisa Tormoen Hickey
Sarah Cottrell Propst
John W. Boyd
Josh Ewing
Nancy Burns
Dwight Lamberson
Bruno Carrara
Anthony Sisneros
Jack Sidler
Ben.phillips@pnmresources.com;
Bradford.Borman@pnmresources.com;
Mark.Fenton@pnmresources.com;
bthroneatty@newmexico.com;
erin.overturf@westernresources.org;
Dou~las.howe@westernresources.org
ckolberg@abcwua.org;
Thomas.wander@pnmresources.com;
Noble@energyenvironmentlaw.com;
david@vw77.com;
nlon~@nrdc.org;
cam illa.feibelman@sierraclub.org;
sricdon@earthlink.net;
nellis.khoward@sierraclub.org;
Mariel~seedsbeneaththesnow.com:
lisahickey@coloradolawye~.net;
propst~,interwest.org;
jwb@fbdlaw.com;
~e@fbdlaw.com;
Nancy.bums@state.nm.us;
Dwi~ht.Lamberson~state.nm.us;
Bruno.carrara@state.nm.us;
Anthony.sisneros~,state.nm.us;
iack.sidler@state.nm.us;
Cholla Khoury
James R. Dittmer
Peter Gould
Nann Winter
Marcos Martinez
Nick Schiavo
Jeffrey Albright
Patrick Ortiz
Tom Singer
Joseph A. Herz
Loretta Martinez
Dahl Harris
Andrea Crane
Michael Dirmeier
Vincent DeCesare
Charles Gunter
Jocelyn Torres
Cydney Beadles
Laura Sanchez
John M. Stomp |lI
Donald Gruenemeyer
Ckhoury@nmag.gov;
idittmer@utilitech.net;
pgouldlaw@gmail.corn;
nwinter@stelznerlaw.com;
mdmartinez@santafenm.gov;
naschiavo@santafenm.gov;
jalbright@lrrlaw.com;
Portiz@cuddymccarthy.com;
Singer@westernlaw.org;
iaherz@sawvel.com;
LMartinez@nmag.gov;
dahlharris@hotmail.com
ctcolumbia~aol.com;
mdirmeie@gmail.com;
vincent.decesare@state.nm.us;
charles.gunter@state.nm.us;
jocelyn.torres@state.nm.us;
cydney,beadles~state.nm.us;
laura@nmgreenchamber.com;
laura.e.sanchez@comcast.net;
istomp@abcwua.org;
degruen@sawvel.com;
Sandra Skogen
Rob Witwer
David Rhodes
Brogan Sullivan
Rachel Brown
Michael I. Garcia
Susan Kery
Robb Hirsch
Rick L. Alvidrez
sandra.skogen@state.nm, u,!;
witwerr@southwestgen.com_;
rhodesd@southwest~n;
brogan.sullivan@huschblackwell.com;
rabrown@santa fecou ntynm .~:,py_;
mikgarcia@ben~;
sck@sheehansheehan.com;
rhirsch@edlconsulting.u_s;
RAlvidrez@mstLAW.com
Sandra Skogen
Sandra.Skogep@state.nm.us
Michael C. Srnith
MichaelC.Smith@state.nm.us
Dwight Lamberson
Dwight.lamberson@state.nm.us
Nancy Burns
_N~rns@state.nm.us
Elisha Leyba-Tercero
Elisha.levba-tercero@state.nm.us
Ashley Schannauer
Ashley.schannauer@state.nrn.us
Louis W. Rose
Randy S. Bartell
Steve Gross
Martin R. Hopper
Maurice Brubaker
Jim Dauphinais
Daniel Dolan
Adam Baker
REIA of NM
lrose@rnontand.com;
rbartell@montand.com;
gross@portersirnon.corn:
m__hopper@rnsrpower.org;
mbrubaker@consultbai.corn;
idauphinais@consultbai.corn;
dan@lobo.net;
abaker@bakerlawoffice.net;
prcaction@reia-nm.org;