BILL ANALYSIS 1 1 SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE DEBRA BOWEN, CHAIRWOMAN AB 428 - Richman/Canciamilla Hearing Date: June 22, 2004 A As Amended: June 2, 2004 FISCAL B 4 2 8 DESCRIPTION Existing law: 1.Authorizes retail competition (direct access) within the service areas of the investor-owned utilities (IOUs) (AB 1890 (Brulte), Chapter 856, Statutes of 1996). 2.Requires the California Public Utilities Commission (CPUC) to suspend the right of IOU customers to acquire direct access service until the Department of Water Resources (DWR) no longer supplies power to IOU customers (AB 1X (Keeley), Chapter 4, Statutes of 2001). Pursuant to AB 1X, the CPUC has suspended direct access as of September 20, 2001. 3.Declares the intent of the Legislature that all customers taking service from an IOU after the enactment of AB 1X bear a fair share of specified DWR costs and that any cost shifting between customers be prevented (AB 117 (Migden), Chapter 838, Statutes of 2002). This bill: 1.Terminates the suspension of direct access on January 1, 2006. 2.Requires the CPUC, by April 1, 2005, to establish rules for phased implementation of direct access. 3.Authorizes the CPUC to establish requirements it determines necessary to ensure bundled customer indifference to direct access. 4.Requires the CPUC to permit direct access equivalent to load growth and reduction in DWR contract obligations from 2006-2009. 5.Requires the CPUC, by April 1, 2005, to establish a core/non-core direct access model, to commence January 1, 2009, consistent with specified principles. 6.Requires the Independent System Operator to enforce resource adequacy requirements. 7.Requires the CPUC, by April 1, 2005, to report on its direct access rules. 8.Prohibits the CPUC from adopting an IOU procurement plan unless it complies with the CPUC's schedule for phased implementation of direct access. 9.Requires the CPUC to establish transition rules that allow an IOU to avoid stranding capacity through its procurement plan. BACKGROUND The "core/non-core" approach to utility service is derived from natural gas service, where customers are divided into core and non-core classes according to consumption. Gas utilities are required to procure and deliver a portfolio of gas supplies sufficient to serve their core (residential and small commercial) customers. Non-core customers must arrange for procurement and transportation of their own gas supplies. As part of the restructuring of the electric industry, AB 1890 authorized direct access. While customers were allowed to choose alternate providers of energy, the IOUs' obligation to serve all customers remained and customers large and small were entitled to remain with, or return to, bundled IOU service. Historically, IOU electric customers have been entitled to the portfolio of supplies procured to serve them without regard to their size. To avoid the dysfunctional spot market that financially decimated the IOUs and threatened catastrophic rate increases, AB 1X established a structure to permit DWR to buy needed electricity for IOU customers under long-term contracts. To ensure the predictable revenue stream necessary for long-term contracts, the issuance of ratepayer-backed revenue bonds, and prevent cost-shifting from direct access to bundled service customers, the CPUC was directed to suspend direct access to prevent additional migration of IOU customers. After a seven-month delay, the CPUC suspended direct access on September 20, 2001. Between January and June 2001, the vast majority of customers previously served by direct access providers returned to IOU service, benefiting from retail rates which were lower and more stable than market prices. However, between July 1, 2001 and September 20, 2001, thousands of predominantly large industrial customers, who had taken service from the state at below-market rates, departed for direct access as market conditions improved. During the July 1 to September 20 period, direct access increased from approximately 2% to approximately 13% of the total IOU load. Direct access load has grown since that time due to the CPUC's liberal interpretation of the Legislature's direction to suspend direct access, including allowing customers to begin direct access service after the suspension date and switch between bundled service and direct access service. Meanwhile, the CPUC has dedicated a share of bundled customer rates to a loan program to defer direct access customers' payment of DWR and IOU procurement costs. In a decision issued in November 2002 (Decision 02-11-022), the CPUC capped the payment for these costs applicable to direct access customers at 2.7 cents per kilowatt hour. The CPUC majority reasoned such a cap was necessary to maintain the viability of existing direct access contracts. The 2.7 cent charge doesn't cover what direct access customers owe for DWR power already delivered, or for DWR operating costs in the next few years, so a revenue shortfall or "under-collection" results. Since payment of DWR's costs (bond payment and ongoing revenue requirement) can't be postponed, the CPUC decision shifts the obligation to pay any shortfall from direct access customers to each IOU's bundled customers. According to DWR, the current direct access under-collection is about $750 million. The shortfall is expected to continue to grow in 2004. Over time, as DWR costs decline, direct access customers' payments are projected to catch up and pay off this under-collection. DWR estimates the under-collection will be paid off in 2011 in PG&E territory, 2014 in SCE territory, and 2005 in SDG&E territory. In the meantime, IOU customer rates will have to maintained at a level high enough to support this "forced loan" to direct access customers. COMMENTS 1.Multiple choice. This bill establishes new direct access statutes without reconciling them with the existing direct access statutes enacted by AB 1890, which require the CPUC to authorize and facilitate direct access. For new customers, these statutes are inoperative due to the suspension of direct access. Under this bill, they will become operative again on January 1, 2006. This bill directs the CPUC to permit direct access equivalent to load growth and reduction in DWR contract obligations from 2006-2009. This bill further directs the CPUC to establish core/non-core direct access, beginning in 2009. It's not clear how each of these provisions of law would relate to the others and how they would be applied to existing and future direct access customers. To create a more consistent, deliberate direct access policy, the author and the committee may wish to consider reconciling existing law requiring the CPUC to facilitate direct access with the provisions of this bill requiring the CPUC to limit, or impose new conditions on, direct access. 2.Direct access starts in 2006, but core/non-core principles don't apply until 2009. This bill restores direct access in 2006 and permits, but doesn't require, the CPUC to impose certain conditions. The core/non-core program begins in 2009, three years after the direct access suspension is lifted. Prospective direct access customers will have an incentive to leave before 2009 to avoid the limitations associated with core/non-core. The author and the committee may wish to consider whether the core/non-core rules should be implemented before customers are permitted to depart. 3.Fewer customers to carry forced loan. This bill doesn't address the burden on bundled customers resulting from the CPUC's current direct access program. While the bill authorizes the CPUC to ensure "bundled customer indifference," the CPUC claims its existing forced loan is consistent with this term. The bundled business customer paying to subsidize its direct access competitor would probably beg to differ. If the forced loan is left in place, and additional customers are allowed to move from bundled service to direct access, the per customer share of the forced loan will increase. To avoid increasing the burden of direct access customer costs on bundled customers, the author and the committee may wish to consider postponing additional direct access until the forced loan is repaid. 4.Mixed signals to IOUs regarding investments. AB 57 (Wright), Chapter 835, Statutes of 2002, requires IOU procurement plans to "enable the (IOU) to fulfill its obligation to serve at just and reasonable rates." The IOUs are currently expected to meet load growth and replace the DWR contracts over the next several years via the procurement process initiated by the CPUC pursuant to AB 57. The CPUC has recently approved contracts for new power plants to serve IOU customers which will be completed in the 2006-2009 timeframe. The IOUs are required to buy additional renewable power under long-term contracts pursuant to SB 1078 (Sher), Chapter 516, Statutes of 2002, the Renewable Portfolio Standard (RPS). The Governor, the energy agencies and pending legislation (SB 1478 (Sher)) have endorsed accelerating the RPS schedule. Under the recent CPUC long-term procurement decision (Decision 04-01-050), IOUs will be obligated to build or buy resources to meet a 15-17 percent reserve margin by 2008. The Governor has asked the CPUC to accelerate achievement of the reserve margin to 2006. The energy agencies have adopted a goal of decreasing per capita energy consumption. The IOUs, and their customers, are the primary vehicle to deliver all of the above. These initiatives, on top of existing obligations for utility generation, qualifying facilities, and DWR contracts, will make the IOUs' portfolios stable, but also fairly inflexible. Against this backdrop, this bill permits the IOU customers who would support all these initiatives to leave for direct access during the same time period the intitiatives are to be implemented. The bill further requires the CPUC to ensure the IOUs don't procure to meet the needs of customers who might leave, without knowing whether they will leave, or if they leave, whether they will return. The author and the committee may wish to consider how an expansion of direct access can be reconciled with other policy goals embodied in AB 57, SB 1078 and the Energy Action Plan. 5.Related legislation. AB 2006 (Nunez), pending in this committee, requires the CPUC to implement a core/non-core model, subject to conditions which are more specific and restrictive than this bill. PRIOR VOTES Senate Energy, Utilities and Communications Committee (2-3) (failed passage) Assembly Floor (67-0) Assembly Appropriations Committee (24-0) Assembly Utilities and Commerce Committee (11-0) POSITIONS Sponsor: Author Support: Sempra Energy (if amended) Independent Energy Producers (if amended) Oppose: California Coalition of Utility Employees Clean Power Campaign (unless amended) Foundation for Taxpayer and Consumer Rights Natural Resources Defense Council (unless amended) Pacific Gas and Electric Company (unless amended) The Utility Reform Network (TURN) Lawrence Lingbloom AB 428 Analysis Hearing Date: June 22, 2004