A. Adequacy of a Settlement Proposal in Achieving
Feasible Plan of Reorganization
The Bankruptcy Code requires any plan of reorganization to be feasible - to allow a debtor to successfully emerge from bankruptcy. To be feasible, a proposed plan must be such that if implemented it will leave the debtor in a situation where it is not likely that the reorganization will be followed by unanticipated liquidation or further reorganization:
Before the bankruptcy court may confirm a plan of reorganization, 11 U.S.C. § 1129(a)(11) requires that it find that the plan is not likely to be followed by unanticipated liquidation or further reorganization. In other words, the plan must be feasible. Under this feasibility test, the bankruptcy court must look to the plan's projected income, expenses, assets and liabilities and determine whether the plan will leave the estate financially stable. In re Pizza of Hawaii, Inc., 40 B.R. 1014, 1017 (D. Hawaii 1984).
A necessary corollary of this requirement is the requirement that the provisions of any proposed plan of reorganization can, in fact, be implemented:
[T]he feasibility test contemplates the probability of actual performance of the provisions of the plan. Sincerity, honesty, and willingness are not sufficient to make the plan feasible, and neither are any visionary promises. The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts. In re Clarkson, 767 F.2d 417, 420 (8th Cir. 1985).
It is the Bankruptcy Court which ultimately will determine whether any given proposed plan is feasible. And it is clear that the Commission should not authorize any settlement unless the Commission believes that the settlement is likely to result in a feasible plan. For the reasons detailed below, the PSA, modified as we propose, satisfies this requirement.
1. The Modified PSA14 Will Allow PG&E to Emerge Promptly From Bankruptcy
The Modified PSA adopts the regulatory asset and the cash allowances of the PSA, and therefore will pay creditors in full, improving PG&E's credit metrics. Second, the Modified PSA calls for the amortization of the regulatory asset "mortgage style" over nine years.15 Third, it offers the state significant environmental benefits.16 Fourth, it provides for reduction of the regulatory asset by any refunds obtained from FERC. Finally, it contains PG&E's commitment not to unilaterally attempt to disaggregate for the life of the plan.17
There are provisions in both the PSA and the Modified PSA that enhance PG&E's fiscal soundness. These elements are: the ratemaking treatment associated with the regulatory asset;18 acknowledgement by the Commission that the URG rate base established by D.02-04-016 shall be deemed just and reasonable and not subject to modification;19 a Commission commitment not to allow procurement costs to impair collection of other costs (including those associated with the regulatory asset); imputation of a capital structure to PG&E;20 and a Commission commitment not to discriminate against PG&E as compared with other utilities.21 Further elements of both the PSA and the Modified PSA enhancing the attractiveness of the Settlement Plan to rating agencies are the assurances of recovery of headroom within a certain range22 in 2003,23 assured recovery of the full amount that PG&E sought in the ATCP,24 and the dismissal with prejudice of PG&E Corporation (PG&E's parent) from the Commission's Holding Company OII as to past practices.25 With those financial and regulatory benefits in place we are confident PG&E will be able to emerge from bankruptcy and continue to provide safe, reliable service.
2. The Rating Agencies (S&P and Moody's)
PG&E says that it is essential that PG&E's credit be rated investment-grade upon emergence from bankruptcy. It believes that it is these entities' blessing of the plan, through the assignment of investment-grade credit ratings, that is crucial to feasibility. Its witnesses testified: "It is critical for PG&E to meet at least minimum investment-grade ratings"26 if emergence is to take place at all. "PG&E needs access to the liquidity and efficiency of the investment grade debt market in order to raise the approximately $8 billion required to emerge from Chapter 11."27
To be "investment-grade" is to be assigned credit ratings at or above a certain level. Credit ratings matter because they determine the breadth and depth of markets that are accessible to a borrower, and because they determine the cost of debt that a borrower will pay. Certain markets are completely unavailable, or only of limited availability, to non-investment-grade companies, and non-investment-grade companies pay higher borrowing costs in whatever markets are available.
PSA ¶ 16 states:
16. Conditions Precedent to Effective Date. Among other conditions to be contained in the Settlement Plan, the following shall be conditions precedent to the Effective Date:
a. S&P and Moody's shall have issued investment grade company credit ratings for PG&E.
b. The Commission shall have given final, nonappealable approval for all rates, tariffs and agreements necessary to implement the Settlement Plan. The PG&E Proponents shall have the right to waive this provision with respect to any appeal from the Commission's approvals.
This paragraph gives S&P and Moody's veto power over any settlement adopted by the parties and a veto over when PG&E emerges from bankruptcy. No witness from either rating agency testified. There is no assurance that approval of the PSA as written would satisfy them. In fact, there is evidence that the PSA does not fulfil all of S&P's requirements.
The witness for CCSF testified:
Additionally, the PG&E Plan may be infeasible due to the difficulty of obtaining investment grade ratings for the debt securities to be issued under that Plan. By letter dated February 19, 2003, Standard & Poor's (S&P) listed many conditions that would have to be met for PG&E to achieve an investment-grade rating. Several of the conditions laid out by S&P cannot be assured. These include a provision that the Commission will continue to act consistent with AB 57, even after the law expires; that the Commission will allow, "in a timely manner that does not compromise cash flow" many gas and electric procurement-related costs; that the utility's distribution operation will earn its "contemplated rate of return without any material deviation from projected results"; that PG&E will be able to recover costs to replace QF power that "will be consistent with those forecast in the [company's] Model; and that "the CPUC will permit as a ministerial matter the recovery of the distribution company's costs of securing risk management tools and also permit the recovery of costs associated with that portion of the power and fuel portfolio that is not hedged." (Exhibit 138 at 10 (discussing S&P February 19, 2003 letter to PG&E re the ratings for the amended Plan, which letter is Exhibit 149).)
Why this Commission, or the Bankruptcy Court, should put approval by a rating agency as the sine qua non of PG&E's emergence from bankruptcy escapes us. Should the rating agencies not approve we would expect PG&E to request from us additional economic enhancements. There is no evidence in this record to show that an investment grade credit rating is necessary for PG&E to emerge from bankruptcy, while there is overwhelming evidence that utilities have emerged from bankruptcy without investment grade credit ratings. Nor can we overlook the fact the SCE is now providing safe, reliable electric service at reasonable rates without having an investment grade credit rating.
We modify paragraph 16 as follows:
Conditions Precedent to Effective Date. Among other conditions to be contained in the Settlement Plan, the following shall be conditions precedent to the effective date:
a. S&P and Moody's shall have issued investment grade company credit ratings for PG&E.
b. The Commission shall have given final, nonappealable approval for all rates, tariffs and agreements necessary to implement the Settlement Plan.
c. The PG&E Proponents shall have the right to waive either or both of these provisions
B. Fairness and Reasonableness
1. Relationship of Settlement to Parties' Risks of Achieving Desired Results
For more than three years, the Commission and PG&E have been in continuous litigation against each other before the state appellate courts, the federal courts, and the Bankruptcy Court. A settlement between PG&E and the Commission would end this litigation and resolve claims totaling billions of dollars made by PG&E against the Commission and ratepayers.
Prior to the settlement, both the Commission and PG&E faced risks and consequences depending on the outcome of PG&E's litigation claims and proposal to disaggregate itself through the preemptive authority of the Bankruptcy Court. On the one hand, PG&E filed a complaint in federal court seeking authority to recover billions of dollars of undercollected costs (which PG&E now estimates at $11.8 billion) from retail ratepayers and to transfer its assets outside the regulatory reach of the State of California. On the other hand, the Commission and other agencies of the State, including the State Attorney General, continue to fight PG&E's proposals, vowing to carry their opposition beyond the federal trial court and Bankruptcy Court to the highest appellate levels. In addition, the Commission had proposed an alternative plan of reorganization in the Bankruptcy Court, and had obtained the support of the OCC for its alternative plan. PG&E just as vigorously opposed the Commission's alternative plan, and threatened to carry its opposition to the highest appellate levels. There was skepticism regarding the feasibility of either plan of reorganization. The litigation costs incurred by both sides were enormous, and threatened to mount to even higher levels, given the likelihood of additional appellate litigation. In short, both parties faced enormous risks that they would fail to achieve their desired results unless they reached a settlement.
2. The Risk, Expense, Complexity, and Likely Duration of Further Bankruptcy Litigation
From the perspective of the Commission and ratepayers, the principal risks of continued litigation in PG&E's bankruptcy proceeding is that some combination of the Bankruptcy Court and federal appellate courts ultimately will approve PG&E's requested $11.8 billion in unrecovered costs and its proposal to disaggregate its traditional utility business into four separate entities, three of which would be permanently outside the jurisdiction of the Commission. This risk is real, because the federal district court has affirmed PG&E's view of the broad authority of the Bankruptcy Court to expressly preempt the Commission's regulatory authority as part of a plan of reorganization under the Bankruptcy Code. (In re Pacific Gas and Electric Company, 283 B.R. 41 (N.D. Cal. 2002.) That decision is on appeal to the Ninth Circuit, U.S. Court of Appeals. Further, a Bankruptcy Court judge has affirmed the right of the Bankruptcy Court to impliedly preempt the Commission where necessary to implement a financially viable plan. (Memorandum Decision Regarding Preemption and Sovereign Immunity, February 7, 2002, In Re. Pacific Gas and Electric Company, Bankruptcy Case No. 01-30923DM, United States Bankruptcy Court, Northern District of California.)28
Moreover, the Commission's costs and delays of further litigating against PG&E are likely to be massive, given the possibility of appeals through several layers of the federal court system, possibly all the way to the U.S. Supreme Court. The Commission already has expended approximately $25 million in PG&E's bankruptcy, and has not even completed the trial and post-trial briefing on its own plan.
On the other hand, PG&E faces similar risks, expenses, and delays. Even if it were to prevail in persuading the Bankruptcy Court to impliedly or expressly preempt the Commission's jurisdiction, the Commission has vowed to appeal and further challenge PG&E's plan through the courts. If PG&E were not to prevail, the Commission staff's plan would severely reduce the amount of money sought by PG&E.
In short, further litigation between PG&E and the Commission in and beyond the Bankruptcy Court would be costly, complex and lengthy, potentially delaying any resolution as the case winds its way through the federal appellate court system, no matter who prevails at the trial court level.
3. Reasonableness of Settlement of Other
Claims and Litigation
PG&E presented testimony that identified $11.8 billion in unrecovered costs of utility service and financial distress which it claims are to be recoverable from retail electric ratepayers. (Exs. 120 and 120c, PG&E/McManus.) PG&E asserts that it is likely to prevail on its claims before the Commission and/or the state and federal courts. (Exs. 120, 120c, 121, PG&E/McManus.) PG&E cites the ruling of Judge Walker in PG&E v. Lynch, which held that the "cost of wholesale energy, incurred pursuant to rate tariffs filed with FERC, whether these rates are market-based or cost-based, must be recognized as recoverable costs by state regulators and may not be trapped by excessively low retail rates or other limitations imposed at the state level." (Ex. 120 and120c, PG&E/McManus.) PG&E also presented testimony on its claims for cost recovery under state law. (Ex. 120 and 120c, PG&E/McManus.) This testimony asserts that even if its undercollected costs are not classified as wholesale costs protected by the Filed Rate Doctrine under federal law, the costs are still legitimate costs of utility service that PG&E is legally entitled to recover in full from retail ratepayers under California state law.
The Commission staff presented testimony arguing that PG&E was unlikely to prevail in PG&E v. Lynch. (Ex. 122, p. 17, CPUC Staff/Clanon.) The staff relied on the testimony of an expert who argued that Judge Walker's ruling was incorrect. The Commission staff estimated that the net present value of the estimated ratepayer contribution to the settlement would be $7.129 to $7.229
billion. (Ex.122, p. 9, CPUC Staff/Clanon.)29 The components of these ratepayer contributions use the same time frames and components that PG&E used to estimate its claims, i.e. the period from the beginning of the energy crisis to the present. This period treats PG&E's 2001 and 2002 pre-tax headroom revenues under the Commission's surcharge revenue decisions as a ratepayer contribution under the settlement. The Commission staff then quantified the net present value of the regulatory asset, including the costs of taxes and return on the asset. Using the Commission staff's estimate of ratepayer contributions, the proposed settlement would allow ratepayers to settle PG&E's $11.8 billion in pre-settlement claims at a cost of $7.1 to 7.2 billion, or about 60 cents on the dollar, with PG&E giving up $4.6 billion in claims.
In its testimony, ORA questioned the accuracy of PG&E's calculation of undercollected costs in light of headroom revenues reported in PG&E's regulatory balancing accounts. (Ex. 139, ORA/Reid, Danforth; Ex. 187, ORA/Bumgardner.) By ORA's calculation, PG&E had collected $694 million more in headroom revenues during 2001- 2002 than PG&E estimated in its testimony. (Ex. 187, ORA/Bumgardner.) In response, PG&E said that the difference between ORA and PG&E was that ORA did not take into account anticipated additional costs or reductions in revenue that PG&E had accrued and reported in its SEC financial reports under generally accepted accounting principles (GAAP), but that had not yet flowed through PG&E's regulatory balancing accounts.
ORA estimated the ratepayer contribution under the settlement using the same time frame and components as Commission staff, to be in the range of $9.0 to $9.1 billion, $1.9 billion higher than Commission staff. (Ex. 139, ORA/Reid, Bumgardner; Ex. 187, ORA/Bumgardner.) ORA estimated the amount of headroom received by PG&E in 2001 and 2002 to be $694 million more than PG&E's estimate. Additionally, ORA computed the net present value of the regulatory asset to PG&E to be only $1.5 billion.
The only other parties presenting any detailed testimony on the strength and quantification of PG&E's claims were The Utility Reform Network (TURN) and the City and County of San Francisco (CCSF). TURN's testimony relied primarily on the legal position taken by the Commission staff's outside expert as well as the position TURN itself took before the California Supreme Court in the SCE case. TURN also alleged that PG&E's estimate of undercollected costs was inflated. CCSF assumed that PG&E's undercollected procurement costs should be netted against $2.5 billion in power generation revenues identified in the same exhibit. (Ex. 138, p. 6, CCSF/Barkovich.)
PG&E argues that although it is possible for the Commission to quantify the amount of PG&E's various claims that the utility would be giving up under the settlement, it is not so easy to compare those claims to the costs ratepayers would bear under the settlement. This is primarily because before any comparison can be done, the costs of the settlement to ratepayers must be netted against the quantifiable and unquantifiable benefits that ratepayers will receive directly from the settlement itself. In this regard, one of the direct and quantifiable benefits to ratepayers under the settlement is that they receive over $670 million a year in estimated rate relief effective January 1, 2004, and as much as $2.1 billion in interest cost savings over the next ten years.
The record demonstrates that PG&E's total claims are approximately $11.8 billion, and that the ratepayer costs of the Settlement Agreement, using the Commission staff's calculations, are about 60% of those claims. This comparison does not include the direct, positive benefits ratepayers will obtain if this matter can be settled. Those benefits include immediate rate reductions; the ability of the Commission to regulate PG&E on an integrated, cost of service basis; and the environmental and public interest benefits offered by PG&E. PG&E's foregoing its unilateral attempt to transfer valuable utility assets to unregulated affiliates, and its land conservation commitments are not readily quantifiable, but they are nonetheless real and valuable. This comparison shows that the ratepayer dollar settlement is fair and reasonable when compared to the claims PG&E would waive and release.
4. Reasonableness of Rates
Analysis of the reasonableness of the settlement must begin with the rates themselves. The proposed rates under the PSA:30
The initial revenue reduction in 2004 is expected to be approximately $670 million. (Ex. 117b, p.10-3.)
In evaluating the rate impacts of a settlement it is important to bear in mind that the ratemaking process contains significant elements of art as well as science. All ratemaking proceedings are inherently complex undertakings that require many judgment calls. Projected system average rates under the settlement are expected to be lower than current rates. Rates under the settlement agreement lie between the rates ratepayers would see under PG&E's disaggregation plan and the Commission plan were either to be implemented. Accordingly, as to anticipated rates, the Modified PSA satisfies our concern that the settlement fall within the "reasonable range of outcomes" that would result had the case proceeded to trial. (See, Southern Calif. Edison Co., D.02-06-074.)
In any case, the Modified PSA will not be a major driver of PG&E's rates in the near term. The costs associated with the Modified PSA - principally the costs associated with the regulatory asset - are only a small share of PG&E's total costs, and are dwarfed even by such relatively small cost components as transmission costs. The proposed rate reduction is reasonable.
5. Adequacy of Representation In the Settlement Process
The PSA was negotiated by staff of the Commission, under the judicial supervision and mediation of a United States Bankruptcy Court judge. According to the judge, "...[Y]ou should know that the staff of the Public Utilities Commission, who participated in the settlement process, in my opinion, displayed diligence, competence and professionalism. I do not believe that they overlooked opportunities to reduce costs to ratepayers, even as they agreed that the company should be restored to financial health." (Ex. 146, p.2.)
The presence and involvement of Commission staff was adequate for three reasons. First, there is no question regarding the motives, independence, or professional competence of the governmental representatives in the negotiations. Second, the Commission staff has represented the Commission in the Bankruptcy Court on the Commission's own plans of reorganization for PG&E. Finally, the Commission staff has played a prominent role in representing the Commission before the Legislature, the investment community, the rating agencies, and other constituent groups throughout the California energy crisis. We do not doubt the technical, financial, and ratemaking expertise of the Commission staff.
PG&E argues that the active participation of an independent, competent Commission staff in the settlement is a significant indication of the overall reasonableness and fairness of the PSA. In addition to the Commission staff, other governmental participants have endorsed the environmental provisions of the PSA, particularly the Land Conservation Commitment. (Ex. 181.)
Considering adequacy of representation in a different manner, whether or not representation was adequate in the bankruptcy settlement negotiations is now moot because we have rejected the PSA on other grounds. In this investigation, where we approve a modified PSA, it is clear that ratepayers are adequately represented by, among others, ORA, TURN, Aglet, and CCSF. We find that the Commission and ratepayers had adequate representation in the settlement process. Merely because we do not agree 100% with the result of the settlement process does not negate that adequacy.
6. Release of PG&E Corporation
Paragraph 10 of the PSA states in part: "PG&E and PG&E Corporation, on the one hand, and the Commission on the other, will execute full mutual releases and dismissals with prejudice of all claims, actions or regulatory proceedings arising out of or related in any way to the energy crisis or the implementation of AB 1890 listed on Appendix C hereto." CCSF says the release language should be modified to exclude PG&E Corporation. It believes there is no need for any release of claims against PG&E Corporation in this proceeding, because such claims have nothing to do with helping PG&E resolve its bankruptcy. More importantly, it contends, the Commission currently has no pending proceedings against PG&E Corporation and certainly none that are listed in Appendix C. Nor has PG&E Corporation any claims against the Commission. CCSF argues that this release goes not to the Commission's claims, but to the pending actions against PG&E Corporation brought by the California Attorney General and the City and County of San Francisco in the Superior Court. The Commission should not provide PG&E Corporation with this very significant release as PG&E Corporation is not providing any consideration for the proposed release.
We will not accede to CCSF's request. It is not a party to this settlement and it is not covered by the mutual releases; the Commission is not a party to the Superior Court action. Our objective in agreeing to mutual releases is to settle all matters between the settling parties (and no others) and return to a regulatory relationship not burdened with extraneous claims which, by paragraph 10, we now relegate to history.
C. Public Interest
1. The Regulatory Asset
The regulatory asset has been described above. It is $2.21 billion amortized over nine years. It was sized to provide for the revenue, cash flow, and capital structure requirement that will enable PG&E to emerge from bankruptcy as an investment grade company. This asset, when combined with the headroom, provides a $7.2 billion ratepayer contribution. (Ex. 122, p. 8.) As we have discussed above, this is a reasonable compromise of the economic differences of the proponents of the PSA.
Because the compromise amount appears reasonable we do not "delve deeply" within its components. But we caution the proponents that if further negotiations are needed to reach a settlement we will indeed "delve deeply."
The PSA's definition of headroom is:
"PG&E's total net after-tax income reported under Generally Accepted Accounting Principles, less earnings from operations, plus after-tax amounts accrued for bankruptcy-related administration and bankruptcy. - related interest costs, all multiplied by 1.67, provided that the calculation will reflect the outcome of PG&E's 2003 general rate case (A.02-09-005 and A.02-11-067)."
The Commission's definition of headroom is found in Re Proposed Policies, etc., (1996) D.96-12-076, 70 CPUC 2d 207:
"Freezing rates stabilizes collected revenues (subject to sales variation), and declining costs create "headroom," i.e., revenues beyond those required to provide service, that can be applied to offset transition costs. The utilities' reasonable costs of providing service are currently identified as their authorized revenue requirements. (70 CPUC 2d at 219.)
"In general, headroom revenues consist of the difference between recovered revenues at the frozen rate levels (including the reduced rate levels for residential and small commercial customers beginning in 1998) and the reasonable costs of providing utility services, which for convenience we refer to as the authorized revenue requirement." (70 CPUC 2d at 223.)
Clearly, the PSA definition is not the same as the CPUC definition. As ORA cogently observes:
"PG&E's definition of headroom raises more basic questions than it answers. PG&E has not clearly or unambiguously defined or explained "earnings from operations," or "after-tax amounts accrued for bankruptcy-related administration and bankruptcy-related interest costs." Nor has PG&E defined how "the calculation will reflect the outcome of PG&E's 2003 general rate case." Because these key terms remain undefined and unexplained, they will be subject to varying interpretations that can benefit PG&E shareholders, especially before the bankruptcy court. It will be very difficult and contentious for the Commission to audit 2003 headroom to make sure that it falls within the $775 million - $875 million range specified by the PSA.
"The PSA's reference to modifying headroom according to generally accepted accounting principles (GAAP) presents a large substantive problem. To ORA's knowledge, no Commission's decision authorizes PG&E to modify its regulatory accounts by "generally accepted accounting principles" that are not explicitly stated in its tariffs." (ORA, Opening Brief, p.5.)
However, as the headroom revenue is part of the total revenue package which we find reasonable, for the purpose of this settlement we will not "delve deeply," but will find it to be in the public interest.
6. Dividend Payments and Stock Repurchases. The Parties acknowledge that, for the Parent, as PG&E's shareholder, to receive the benefit of this Agreement, both PG&E and its Parent must be able to pay dividends and repurchase common stock when appropriate. Accordingly, the Parties agree that, other than the capital structure and stand-alone dividend conditions contained in the PG&E holding company decisions (D.96-11-017 and D.99-04-068), the Commission shall not restrict the ability of the boards of directors of either PG&E or PG&E Corporation to declare and pay dividends or repurchase common stock.
This paragraph is unacceptable and is stricken. It says the Commission "shall not restrict" PG&E from paying dividends or repurchasing common stock. We interpret this to mean that for nine years we must set rates so that PG&E shall be able to pay dividends. Not only is there no amount specified, but also there is no limit to the amount of dividends PG&E might declare. Should we reduce PG&E's rates that would "restrict the ability," and should we fail to grant a PG&E requested rate increase, that too, would restrict its ability. Paragraph 6 would divest the Commission for nine years of any authority under Sections 451, et seq., 701, and 728 to find PG&E's dividend practices unreasonable.
For example, even if imprudent conduct, reckless conduct, or criminal conduct would otherwise limit PG&E's ability to collect revenues necessary for dividends, the Commission would be powerless to restrict PG&E's dividend practices. If PG&E no longer has sufficient funds to perform its public service obligations due to an unreasonable dividend practice or common stock repurchase practice, we would be powerless to restrict the practice. Under cost-of-service ratemaking PG&E should be able to provide dividends or repurchase common stock, but we cannot guarantee that it will always be reasonable for PG&E to do so. There is no legal basis for us to strip the Commission of its statutory and constitutional authority to supervise PG&E's rates and practices in this regard.
Most importantly, to impose this limitation on our power to fix just and reasonable rates for PG&E, would require us to impose this limitation for all utilities under our jurisdiction. Should we deny the benefits of paragraph 6 to SCE or SDG&E, or any utility, arguably we would be discriminating against them in favor of PG&E. This Commission cannot grant a preference to any utility (§ 453(a), § 728). Paragraph 6 is not in the public interest.
In conformity with striking paragraph 6, we also strike the last sentence of paragraph 3b.
4. Credit Rating
PSA paragraph 2g. states:
g. The Commission recognizes that the establishment, maintenance and improvement of Investment Grade Company Credit Ratings is vital for PG&E to be able to continue to provide safe and reliable service to its customers. The Commission further recognizes that the establishment, maintenance and improvement of PG&E's Investment Grade Company Credit Ratings directly benefits PG&E's ratepayers by reducing PG&E's immediate and future borrowing costs, which, in turn, will allow PG&E to finance its operations and make capital expenditures on its distribution, transmission, and generation assets at a lower cost to its ratepayers. In furtherance of these objectives, the Commission agrees to act to facilitate and maintain Investment Grade Company Credit Ratings for PG&E.
We strike paragraph 2g. in its entirety. It is not in the public interest to "facilitate and maintain" an investment grade company credit rating for PG&E. The reasons stated above regarding restricting the ability of PG&E's to declare dividends are equally applicable to the requirement to "maintain" PG&E's credit ratings.
If we were to commit to PG&E that we would take action to guarantee to maintain its investment grade credit ratings for nine years, we predict that other public utilities under our jurisdiction would soon be requesting similar guarantees. The Commission does not operate in a vacuum. Our decision in one case is often cited as precedent in other cases. We stated, in a different context, "we believe the ramifications on the rate design of all water utilities by setting this new trend must be addressed. The requested separate rate district would set a precedent for future litigants to follow. "(Re Apple Valley Ranchos Water Company (1990) D.90-02-045, 35 CPUC2d 535, 545.) In the present case, we find that it is not in the public interest to tilt the ratemaking balance so heavily in PG&E's favor and against the ratepayers' interest or to set a precedent by guaranteeing PG&E that regardless of circumstances, we would effectively insulate PG&E from financial risks for the next nine years. Nor do we desire to open the floodgates for other utilities to demand such guarantees as they refer to this decision in future applications.
Because we find that the requirement to maintain an investment grade credit is not in the public interest, we modify the Statement of Intent paragraph (5) and (7) to conform to this finding.
We have stricken the sentence in paragraph 13 b.
"The financing of the Settlement Plan shall not include any new preferred or common stock."
Issuing stock is a matter for PG&E to determine in the first instance. There is no need to narrow its options.
6. Environmental Matters
(a) The Land Conservation Commitment (LLC)
The PSA gives the people of California control over, and access to, 140,000 acres of land associated with PG&E's hydroelectric facilities (PSA ¶ 17), without compromising the ability of PG&E to generate electricity from those facilities. In 1999 PG&E proposed to sell these lands to the highest bidder. The PSA would remove forever that possibility, and replace the spectre of loss of public control with the promise of perpetual public access. The PSA's provisions for PG&E's either donating the land or granting conservation easements go much further than simply maintaining the status quo - the people of California can look to a partnership of the environmental community, state and local governments, and environmental stewardship organizations to preserve the lands and improve public access where desirable.
The proposed corporation and its governing board established in the PSA will ensure that PG&E complies with the requirement to donate the lands or grant conservation easements and will provide significant public (and Commission) oversight and participation into improvements made to the lands and the lands' ultimate disposition. Membership of the governing board would include representatives from PG&E, the Commission, the California Department of Fish and Game, the State Water Resources Control Board, the California Farm Bureau Federation, and three public members to be named by the Commission, plus others. This board should play an historic role in the protection of California's environment. The PSA expressly provides that enhancements to the lands not interfere with PG&E's hydroelectric operations, maintenance, or capital improvements. Funding is provided by $70 million to be paid over ten years, to be recovered in retail rates.
(b) The Stewardship Council
Fourteen parties served testimony regarding the land conservation commitment taking a diversity of positions and making numerous suggestions for improvement. Consequently, the presiding Administrative Law Judge (ALJ) encouraged the parties to resolve their differences through a stipulation. The ALJ waived the notice requirements of Rule 51 (Stipulations).
On September 25, 2003, Association of California Water Agencies, California Farm Bureau Federation, California Hydropower Reform Coalition, California Resources Agency, ORA, Regional Council of Rural Counties, State Water Resources Control Board, Tuolumne Utility District, U.S. Department of Agriculture-Forest Service, which are parties, and non-parties California Forestry Association, California Wilderness Coalition, Central Valley Regional Water Control Board, Mountain Meadows Conservancy, Natural Resources Defense Council, Northern California Council Federation of Fly Fishers, The Pacific Forest Trust, Inc., Planning and Conservation League, Sierra Club California, Sierra Foothills Audobon Society, Sierra Nevada Alliance, Trust for Public Land and U.S. Department of Interior-Bureau of Land Management presented to the Commission a "Stipulation Resolving Issues Regarding The Land Conservation Commitment" (the Land Conservation Commitment Stipulation (Ex. 181)), that implements Paragraph 17 and Appendix E of the Settlement Agreement and constitutes an enforceable contract among those parties.
Several parties had indicated that the governing board of the Stewardship Council,31 as proposed in the PSA, would be more effective and representative if it was expanded to include the fuller array of interests and expertise of the public agencies, local government and trade associations, environmental organizations, and ratepayer organizations who have worked on the watershed land protection issue. The stipulation provides that, after its formation, the by-laws will be amended to provide that, in addition to the five members provided for in the PSA, the governing board will include one representative each from the California Resources Agency, the Central Valley Regional Water Quality Control Board, Association of California Water Agencies, Regional Council of Rural Counties, California Hydropower Reform Coalition, The Trust for Public Land, ORA, and California Forestry Association. (Ex. 181 ¶ 10(a).) In addition, the U.S. Department of Agriculture-Forest Service and U.S. Department of Interior-Bureau of Land Management will together designate a federal liaison who will participate in an advisory and non-voting capacity. The Commission will name three additional board members to further provide for public representation. This board ensures that all of the key constituencies are represented in the development and implementation of the land conservation plan.
The stipulation provides that decisions of the governing board will be made by consensus, that meetings will be public, and that there is a dispute resolution process. The stipulation delineates a planning and assessment process that will examine all of the subject lands in the context of their watershed and county. For each parcel, the plan will assess its current natural resource condition and uses, state its conservation and/or enhancement objectives, whether the parcel should be donated in fee or be subject to a conservation easement, or both, that the intended donee has the capability to maintain the property interest so as to preserve or enhance the beneficial public values, that the donation will not adversely impact local tax revenue, assurance that known contamination be disclosed, appropriate consideration of whether to split the parcel, a strategy to undertake appropriate physical measures to enhance the beneficial public values, a plan to monitor the impacts of disposition and implementation of the plan, and an implementation schedule. Consistent with Appendix E to the PSA, the plan may also consider whether land "without significant public interest value" should be sold to private entities with few or no restrictions. The stipulation does not alter § 851 authority. Any proposed disposition will be presented to the Commission for public notice, hearing, and approval. The stipulation is expected to enhance the existing environmental and economic benefits of the Watershed Lands and Carizzo Plains on an overall basis.
We agree that the LCC as supplemented by the LCC stipulation will provide ratepayers with substantial benefits and is in the public interest. PG&E will undertake a study of all of these lands to determine current public values, and to recommend strategies and measures to preserve and enhance such values in perpetuity. PG&E will then implement such strategies and measures within six months after final receipt of all required government approvals no longer subject to appeal. The planning process, including surveys and inspections of 140,000 acres, will likely cost $20 million or less (Ex. 127a, pp. 4-5, CHRC/Sutton), and thus the balance of the $70 million will be available to implement physical measures, such as planting of trees to enhance fish and wildlife habitat and water quality, construction or improvement of recreational access, and protection of Tribal or other historical sites. The LCC limits the discretion of PG&E to take inconsistent action in future proceedings.
The State Water Resources Control Board argues that the term "beneficial public values," as used in Appendix C of the PSA, be modified to state that any agricultural, sustainable forestry and outdoor recreation uses on transferred lands "must be environmentally sensitive." (SWRCB Op. Br. at 6.) PG&E opposes this modification. It argues that the term "environmentally sensitive" is hopelessly vague and, rather than clarifying the land conservation commitment, would only result in more confusion and debate. It asserts that the language in Appendix E has been crafted to give the Stewardship Council direction and the flexibility to determine how best to preserve and enhance the beneficial public values of the lands. The combination of state agency representation on the governing board with consensus voting, as well as the Commission's § 851 approval process and CEQA review, will ensure that recreational uses that unduly harm the environment are not permitted. We agree with PG&E's reasoning.
(c) Environmental Opportunity For Urban Youth
The Greenlining Institute has asked us to expand the LCC to address the needs of low-income urban PG&E ratepayers. A majority of PG&E's ratepayers live in urban areas, not in the Sierra foothills, where the vast majority of the 144,000 acres are located. In order to ensure that environmental benefits of a substantial nature are realized by PG&E's urban ratepayers, our Modified Settlement Agreement will augment the $70 million devoted to environment activities by $30 million. These additional funds shall be expended to provide a wilderness experience for urban youth, especially disadvantaged urban youth, and to acquire and maintain urban parks and recreation areas. We direct that the acquisition of such parks and recreation areas be focused on creating an environment that will particularly serve the needs of urban low-income youth.
Of the $30 million, to be expended in equal installments over 10 years, we will expect approximately 1/3 would be used to provide seed money that would establish a permanent program for young people who are least likely to enjoy the wonder of California's natural beauty. This program would allow disadvantaged, inner city youth to experience the environment in nature's own setting. The program would select young citizens in an urban setting, and provide the means to visit these watershed lands for a week or two. While there, they would be exposed to living in the outdoors and see how the actions of man interact with animal and plant life, both favorably and unfavorably. The 2/3 balance of the $30 million would be used to acquire urban parks and recreation areas for inner city youth. We will use our three appointments to the Stewardship Council to champion this $30 million allocation, among their other duties.
(d) Clean Energy Technology Commitment
Under the PSA, PG&E will establish a shareholder-funded non-profit corporation dedicated to supporting research and investment in clean energy technologies primarily in PG&E's service territory. (PSA ¶ 18.) The non-profit's governing board will include Commission-selected appointees, PG&E-selected appointees, and appointees jointly selected by the Commission and PG&E. PG&E proposes an initial endowment of the non-profit at $15 million over five years (not to be recovered in rates). We view this commitment as part of the Commission's, and the State's, ongoing policies encouraging energy efficiency, demand response, renewable generation, and the entire range of more environmentally-friendly options for meeting load growth. However, $15 million is inadequate. We believe an additional $15 million (not to be recovered in rates) will assure adequate planning and funding.14 The changes this decision makes in the PSA are shown in the redlined copy of the PSA in Appendix B. The version of the settlement which we approve is in Appendix C, where it is referred to as the Settlement Agreement. 15 "Nine years is sufficiently short to provide the needed cash flows to improve PG&E's credit statistics, while moderating rate impacts." Exhibit 122 at 20. 16 Exhibit 101a, ¶¶ 17-18. 17 Id. Statement of Intent ¶ 3; Agreement ¶ 11(b). 18 Exhibit 101, ¶ 2. 19 Exhibit 101, ¶ 2f. 20 The PSA, paragraph 3(b), provides part that "the authorized equity ratio for ratemaking purposes shall be no less than 52 percent, except for a transition period as provided below [setting floor equity ratio of 48.6 percent in '04 and `05]." 21 Exhibit 101, 1-9:2-6. See generally Exhibit 101a, ¶ 2(f). 22 $775 million to $875 million. Exhibit 101a, ¶ 8(b). 23 Should 2003 headroom collections fall outside the prescribed range, "the Commission shall take such action in 2004 as is necessary" to return overcollections to ratepayers, or to allow PG&E to recoup any undercollections. Id. 24 Exhibit 101a, ¶ 10 and App. C. 25 Id. 26 Exhibit 122 at 11. 27 Exhibit 103. 28 A copy of the February 7, 2002, Bankruptcy Court decision, Docket No. 4710, is available on the Bankruptcy Court's website at http://www.canb.uscourts.gov.
|2001 and 2002 Pre-Tax Headroom||$3,200|
|2003 Pre-Tax Headroom||$775 to $875|
|NPV of the Regulatory Asset||$2,210|
|NPV of the Tax Component of the Regulatory Asset||$944|
|Estimated Ratepayer Contribution||$7,129 to 7,229|