2. Procedural Background
Public Utilities Code Section 365.11 was enacted by Senate Bill (SB) 695 (Kehoe), Stats. 2009, ch. 337. SB 695 provides, among other things, for the phased and limited reopening of direct access transactions in the service territories of the three large utilities.2 The statute also requires that once the Commission has begun the process of reopening direct access, the Commission shall equalize certain program requirements between the three large utilities and "other providers." The statute provides that the Commission shall:
... ensure that other providers are subject to the same requirements that are applicable to the state's three largest electrical corporations under any programs or rules adopted by the commission to implement the resource adequacy provisions of Section 380, the renewables portfolio standard provisions of Article 16 (commencing with Section 399.11), and the requirements for the electricity sector adopted by the State Air Resources Board pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code). This requirement applies notwithstanding any prior decision of the commission to the contrary.
§ 365.1(c)(1).
The phrase "other providers" is explained in the statute.3 It includes electric service providers (ESPs), but expressly excludes community choice aggregators (CCAs). The statute does not address small utilities and
multi-jurisdictional utilities (SMJUs). Consequently, this decision does not address renewables portfolio standard (RPS) program requirements for CCAs or SMJUs.
The Commission took the initial steps to implement § 365.1 in Decision
(D.) 10-03-022, by setting the initial conditions for the limited resumption of direct access. That decision triggered the equality of treatment mandate of § 365.1(c)(1). In D.10-03-021, the Commission stated that it would implement § 365.1(c)(1) with respect to the RPS program by undertaking a comprehensive review of RPS program requirements in this proceeding, Rulemaking (R.) 08-08-009.
On March 25, 2010, the assigned Administrative Law Judge (ALJ) in this proceeding issued the Administrative Law Judge's Ruling Requesting Briefs on Revising Requirements of the Renewables Portfolio Standard Program pursuant to SB 695. The ruling asked parties to identify, with citation to the relevant ordering paragraphs of Commission decisions or resolutions:
● RPS program requirements that should be reviewed;
● proposed revisions to those requirements; and
● reasons for the proposed revisions.
Briefs were filed on May 3, 2010 by the Alliance for Retail Energy Markets (AReM); PG&E; SDG&E; Shell Energy North America (US), L.P. (Shell Energy); and SCE. Reply briefs were filed on May 13, 2010 by AReM; PG&E; Shell Energy; SCE; and The Utility Reform Network (TURN).4
1 Unless otherwise noted, all further references to sections refer to the Public Utilities Code.
2 See § 365.1(b). California's three large IOUs are Pacific Gas and Electric Company (PG&E), San Diego Gas & Electric Company (SDG&E), and Southern California Edison Company (SCE).
3 Section 365.1(a) provides:
For purposes of this section, 'other provider' means any person, corporation, or other entity that is authorized to provide electric service within the service territory of an electrical corporation pursuant to this chapter, and includes an aggregator, broker, or marketer, as defined in Section 331, and an electric service provider, as defined in Section 218.3. 'Other provider' does not include a community choice aggregator, as defined in Section 331.1, and the limitations in this section do not apply to the sale of electricity by 'other providers' to a community choice aggregator for resale to community choice aggregation electricity consumers pursuant to Section 366.2.
4 By e-mail to the ALJ on April 14, 2010, SCE requested that the schedule set in the ALJ's briefing ruling be extended by two weeks to allow more time for SCE personnel familiar with RPS issues to work on the brief. No party opposed this request, and several parties supported it. The ALJ granted the request by e-mail dated April 15, 2010.
