2. Background
In 2001, in response to California's growing energy crisis, the Legislature enacted AB No. 1 from the First Extraordinary Session (Ch. 4, First Extraordinary Session 2001) (AB X1 1). Among other things, AB X1 1 added Water Code § 80110, which directed the Commission to suspend the right of retail end-use customers to subscribe to direct access service.1 2 The Commission subsequently issued Decision (D.) 01-09-060, which determined that the suspension of direct access service would be effective September 21, 2001.
Assembly Bill 80 (AB 80) (Stats. 2002, ch. 857), codified as Pub. Util. Code § 366.1, was enacted on September 24, 2002. This bill concerned cities that had rights and obligations to the Magnolia Power Project (MPP) and provided, in pertinent part:
Notwithstanding Section 80110 of the Water Code or Commission Decision 01-09-060, if the Magnolia Power Project has been constructed and is otherwise capable of beginning deliveries of electricity to the existing project participants, an existing project participant may serve as a community aggregator on behalf of all retail end-use customers within its jurisdiction.3
On January 13, 2005, the Commission issued D.05-01-009, which approved an application filed by the City of Cerritos and Southern California Edison Company (SCE) to implement AB 80 pursuant to their agreement (AB 80 Agreement). The AB 80 Agreement specified the conditions under which Cerritos could act as a community aggregator on behalf of retail end-use customers within its jurisdiction following construction of MPP. Among other things, the AB 80 Agreement included an Initial Load Limit (ILL) of 13.02 megawatts (MW), which represented Cerritos' generation entitlement share of power from MPP. The agreement further provides that Cerritos may increase the ILL:
upon (a) obtaining SCE's written agreement to an increase, or (b) providing thirty (30) calendar days advance written notice to SCE after obtaining a final, unappealable decision from the CPUC or a court of competent jurisdiction as to Cerritos' rights under AB 80 to serve as a community aggregator for customers within its jurisdiction on an opt-in, as opposed to opt-out, basis. In any proceeding to determine Cerritos' rights and/or obligations under AB 80, the initial implementation of AB 80 under this Agreement shall not be construed as precedential, nor shall SCE or Cerritos be deemed to have waived any right to assert or challenge any theory respecting Cerritos' rights and/or obligations under AB 80.4
On June 12, 2009, Cerritos filed the instant application. Cerritos requests that the Commission determine whether AB 80 authorizes Cerritos to serve its customers on an opt-in (direct access) basis or on an opt-out (community choice aggregation) basis. Cerritos further seeks to modify the AB 80 Agreement to remove the ILL.
On July 16, 2009, SCE filed a timely protest to Cerritos' application. Cerritos replied to SCE's protest on July 27, 2009. After reviewing the application, protest and reply to the protest, and conferring with parties, the Administrative Law Judge (ALJ) determined that a prehearing conference was unnecessary.
The assigned Commissioner and ALJ issued a scoping memo and schedule (Scoping Memo) on September 2, 2009. The Scoping Memo provided for a single round of comments and replies. Both Cerritos and SCE filed timely comments and reply comments.
1 A direct access customer receives distribution and transmission service from the utility, but purchases its electric energy from an electric service provider.
2 On October 11, 2009, the Legislature enacted Senate Bill (SB) 695 (Stats. 2009, ch. 337). Among other issues, SB 695 deletes the previously effective suspension of direct access service, and requires the Commission to authorize increases in the maximum kilowatt-hour (kWh) limit on direct access transactions. This decision does not address SB 695 because this application was filed prior to SB 695's enactment and no party addressed SB 695.
3 Pub. Util. Code § 366.1(b).
4 D.05-01-009, Appendix A, AB 80 Agreement, ¶ 4.b.
