BILL ANALYSIS 1 1 SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE DEBRA BOWEN, CHAIRWOMAN AB 14XX - Canciamilla Hearing Date: August 29, 2001 A As Amended: August 27, 2001 FISCAL B X 2 1 4 DESCRIPTION Current law exempts companies who self-provide natural gas from regulation by the California Public Utilities Commission (CPUC). All other transmission of natural gas is regulated by the CPUC. This bill creates a class of natural gas provider, known as a Non-Utility Grade Natural Gas Provider, that is exempt from CPUC regulation. Such a provider is defined as an entity which produces, sells, or transports non-utility grade natural gas to no more than five end users, excluding the pipeline owners, their subsidiaries, or affiliates. Non-utility grade natural gas is defined as natural gas which is outside of a utility-specific heating range or which the utility determines is of insufficient quality. This bill provides that pipelines transporting non-utility grade natural gas owned or operated by a non-utility grade natural gas provider are, for purposes of safety regulation, subject to the jurisdiction of the Division of Oil, Gas, and Geothermal Resources (Division) if the pipeline is located within the boundaries of an oil field, and the United States Department of Transportation if the pipeline is located outside the jurisdiction of the Division. This bill provides that natural gas sold pursuant to this bill is subject to the non-bypassable public goods surcharge. This bill requires the CPUC to ensure that any costs resulting from the implementation of this section don't result in cost increases to small customers and/or natural gas utilities. BACKGROUND Regulatory Structure . Under federal law, the price of natural gas isn't regulated. Instead, the price is set by the balance of supply and demand. When that balance is lost, natural gas price spikes occur, as they did in late 2000 when natural gas prices increased by more than 600%. While the price of natural gas isn't regulated, the price of transmitting and distributing the natural gas is regulated by the CPUC because the pipelines are bottleneck facilities. They provide irreplaceable infrastructure for both the seller and the buyer of natural gas, since both of them are customers of the pipeline. Unregulated pipelines can use their control over the bottleneck facilities to charge unfair prices, deny access to the pipeline, or provide discriminatory access to the pipeline, much as the railroads did to farmers in the early 1900's, leading to the Progressive movement, the election of Hiram Johnson, and the reformation of the predecessor to the CPUC, the California Railroad Commission. California Policy Related To In-State Natural Gas Production . California has long had a policy supporting the use of in-state natural gas. A May 2001 document by the staff of the California Energy Commission (CEC) reports that California natural gas production declined from the mid-1980's until the mid 1990's, but has been climbing ever since and currently provides about 15% of California's needs. According to the CEC staff report, the lack of pipelines for gathering the natural gas from supply fields has restrained the growth in California-based natural gas supplies. About 80% of California-based natural gas is produced in association with the development of crude oil supplies. Supply and Price Outlook has Improved Since January . The market and outlook for natural gas price and supply has changed materially since the beginning of the year. Prices have dropped from more than six times the historic average back down to near historic averages. The amount of natural gas in storage is well above the most recent five-year averages. An August 22, 2001, CEC staff report states the CEC's expectation that natural gas supplies will remain generally plentiful over the long term, though constraints on pipeline capacity and the ability to refill natural gas storage facilities will be constrained this year. COMMENTS 1.Purpose of the Bill . According to the author, there are untapped sources of California-based natural gas which don't meet the quality of the gas sold by the utilities but could be blended and processed to be sold to the utilities but apparently there is little interest in doing so. However, such gas may be of interest to certain types of large customers that can run certain facilities on this lower grade natural gas. This bill tries to create an incentive for gas producers to drill for and sell this lower quality natural gas by allowing purveyors and transporters to sell the gas without having to become a public utility subject to regulation by the CPUC. 2.If It Walks Like A Utility . . . This bill creates a new class of natural gas providers that aren't subject to CPUC oversight even though by transporting and distributing natural gas, they are performing functions identical to public utilities that are regulated by the CPUC. One of the few relatively clear principles in public utility law is that private sellers of public utility service are regulated by the CPUC. Under this principal, public utility service is an essential service for which they are no substitutes. Rather than leaving the provision and pricing of such service to "market forces," a company is allowed exclusive authority to offer the service in exchange for regulatory oversight on the price, terms, and conditions of service. This regulatory oversight protects customers from unfair pricing, discriminatory terms and conditions of service, while at the same time providing for safe operation and reasonable service quality. An example of how a pipeline could utilize its monopoly power is by denying access to other shippers or customers. The State of California has alleged that one of the natural gas pipelines supplying Southern California withheld capacity in late 2000, thereby driving natural gas prices skyhigh to the benefit of an affiliated gas supplier and to the great detriment of the people and businesses of the state. Damages are estimated in the billions of dollars. Public utilities are also regulated because they are "natural monopolies" in that the service is most efficiently delivered by one large entity, rather than multiple competing entities. Pipelines are good examples of this in that it's much more economical for one hundred people to share one pipeline than for each of them to build their own. Moreover, regardless of the economics, the nuisance and disruption of pipeline construction provides the encouragement to have a single, regulated pipeline. Given the state's experience with deregulation in the electricity arena, the author and committee may wish to consider why a certain class of natural gas providers should be exempt from CPUC regulation even though they will be performing the functions of a regulated public utility. 3.Fair Competition & The Level Playing Field . By creating a separate, unregulated class of natural gas pipeline transmission, this bill creates an unlevel playing field that puts existing natural gas utilities at a disadvantage. Existing regulated utilities (i.e. Pacific Gas & Electric and Southern California Gas) must serve all customers, charge non-discriminatory rates, and generally be subject to CPUC review for their rates and practices. The new class of unregulated pipeline proposed by this bill will be able to cherry pick its customers and charge whatever rates they choose. And, if the unregulated pipeline abandons service, the regulated utility is obligated to step up and provide default service. As customers switch from the regulated utility to the unregulated pipeline, costs will be stranded. The bill provides that such stranded costs will not be paid by small, or "core" customers, nor by the utility. Instead, those costs will be spread among the remaining business customers. Therefore, the business and agricultural customers which don't take service from the unregulated pipeline will see their rates go up. The size of any increases will naturally depend on the number of customers that move from the regulated utility to the unregulated pipeline. A secondary effect related to stranded costs comes from the reduced sales on the utility pipeline, which then causes the fixed pipeline costs to be recovered from fewer sales, thereby raising the per unit charge. As such, the author and committee may wish to consider whether it's appropriate to create an incentive for instate natural gas exploration by, essentially, lowering the regulatory bar at the expense of existing regulated utilities and their customers. 4.Does Five Customers Really Mean Five Customers? The bill limits the number of customers that an unregulated pipeline can serve to five end users, which are defined as people or corporations that receive natural gas for their own use and don't resell or further transport the gas. However, exempt from the definition of end user are subsidiaries and affiliates of the pipeline owner. This appears to allow subsidiaries and affiliates of these unregulated pipeline owners to market and sell natural gas to an unlimited number of marketers, re-sellers, and/or other end users. Furthermore, even if the number of customers is limited, each unregulated pipeline will likely focus on serving large customers, such as refineries or electric generators, making any loss proportionately larger than the number of customers due to the volume of gas that may be sold in an unregulated fashion. 5.How Can The CPUC Enforce What It Doesn't Know About? While the bill doesn't specify how it is enforced, because the provisions are in the Public Utilities Code, the CPUC will be the enforcement entity. Among the provisions where enforcement will be an issue are whether the nonregulated pipeline is obeying the five end user limit, whether end users are subsidiaries or affiliates, and whether the natural gas is non-utility grade. The author and committee may wish to consider how the CPUC is expected to know who is buying their natural gas from where, since the bill doesn't require any of the unregulated entities created by this bill to as much as register with the CPUC. The bill requires the buyers of the natural gas to report to the Board of Equalization that they are changing suppliers, but there's no requirement for the sellers of this gas to register with anyone. Jurisdiction over safety is provided to the Division of Oil, Gas, and Geothermal Resources and the U.S. Department of Transportation (DOT). The CPUC's natural gas pipeline safety rules are identical to DOT's, though DOT uses the CPUC to enforce those rules. It's not clear how state legislation can confer authority onto the federal government. In the absence of the federal government accepting authority, and the cost that goes along with it, the author and committee may wish to consider who will have the responsibility of ensuring the transmissions made under this bill comply with all safety regulations? 6.Creating New Or Redirecting Existing Supplies? While the goal of this bill is to facilitate the utilization of non-utility grade natural gas, how much new natural gas might be tapped as a result of this bill is hard to quantify. According to Sempra, it accepts virtually all of the non-utility grade natural gas it's offered, so the bill may bring little additional natural gas to market in Southern California but may move existing regulated natural gas transmissions to unregulated transmission. 7.Related Legislation . SB 5X (Sher), Chapter 7, Statutes of 2001, provided $15 million in grants to offset the costs of retrofitting existing natural gas powered agricultural equipment to use alternative fuels, including non-utility grade natural gas. AB 1233 (Pescetti), which is pending in this committee today, requires the CPUC to investigate any impediments to the in-state production of natural gas and authorizes the CPUC to adopt tariffs encouraging in-state production unless doing so harms natural gas customers. ASSEMBLY VOTES Assembly Floor (76-0)* Assembly Appropriations Committee (26-0)* *Prior version of bill. POSITIONS Sponsor: Author Support: Western States Petroleum Association Oppose: Coalition of California Utility Employees Pacific Gas and Electric Company Sempra Energy Randy Chinn AB 14XX Analysis Hearing Date: August 29, 2001