3. Request to Modify D.08-04-011
and D.08-09-041

We reject SCE's petitions to the extent that they seek to modify D.08-04-011 and D.08-09-041. While SCE identifies changed circumstances which merit Commission approval of the amended CPV contract - which, ultimately, is the extent of the relief that SCE seeks - the mere fact of new and changed circumstances (as opposed to incorrect or flawed information on the record of the proceeding) is not sufficient cause to reopen a closed proceeding. The changed circumstances that led to the need to amend the CPV contract do not put into question the appropriateness of the Commission's prior determinations in D.08-04-011 and D.08-09-041 approving the CPV Sentinel I and II contracts, and SCE does not challenge them; indeed, SCE relies on those decisions as demonstrating why the Commission should now approve the amended CPV contract. In fact, SCE does not seek to modify any of the findings of fact, conclusions of law, or ordering paragraphs of D.08-04-011 and D.08-09-041; rather, SCE merely seeks to add to them.

D.08-04-011 and D.08-09-041 properly resolved the issues before it, namely, whether the CPV Sentinel I and II contracts should have been approved. SCE now seeks resolution of the entirely new question of whether its amended contract is reasonable; there is no cause to revisit and re-evaluate the Commission's prior determinations in order to address these new circumstances.

Granted, the Commission has entertained petitions for modification for the purpose of approving amendments to previously-approved contracts, including in this very proceeding: D.10-10-029 granted SCE's previous petition to modify D.08-09-041 in order to approve amendments to another contract (the "El Segundo" contract), stating that the petition for modification was the proper procedural vehicle because the Commission had accepted it for this use in another previous proceeding. (D.10-10-029, at 15.) However, allowing parties to petition for relief that is beyond the scope of the underlying closed proceeding upon a mere showing of inevitably changed circumstances would unduly compromise decisional certainty as well as the due process rights of parties and non-parties. These rights include the right to participate in a discussion regarding the scope of issues, category, need for hearing and opportunity to present evidence, and schedule for resolving the new matter, which arises in the context of applications but not petitions for modification (compare Rules 2.1(c) and 2.6(d) to Rule 16.4), an often longer time to file a response or opposition to the request (compare Rule 2.6(a) to Rule 16.4(f)), and the right to become a party upon filing a response or opposition, rather than upon grant of a motion for party status (see Rule 1.4). Allowing parties to petition for relief beyond the scope of the underlying closed proceeding would also encourage misuse by persons who are not otherwise entitled to seek such relief. For example, persons who are not utilities may seek relief by complaint (Rule 4.1), but are not authorized to file applications for ratemaking relief (Rules 3.1 and 3.2). Allowing a non-utility party to petition to modify, say, a three-year-old general rate case decision to consider a new ratepayer assistance program on the basis of changed economics is procedurally indistinguishable from SCE's petitions for modification, but would circumvent this limitation. The fact that SCE, and not other, non-utility parties, is authorized to seek its requested relief by application only highlights the distinction between an application and a petition for modification. For all these reasons, we deny SCE's request that we modify D.08-04-011 and D.08-09-041.

Nevertheless, in the interest of securing just, speedy, and inexpensive determination of the issues presented and the public interest in resolving this matter by no later than June 30, 2011, in order to secure a more timely initial delivery date (see footnote 1, supra), and in the absence of prejudice to any party or non-party,² we will not dismiss the petitions outright, but will address the merits of SCEs' request for approval of the amended and restated CPV contract. (See Rule 1.2.) However, we advise SCE and other similarly situated utilities to seek approval of future amendments to contracts approved in these or any other proceedings by application.

² The petitions were served on the official service list and no party filed a response or objection to them, timely or untimely. The petitions were noticed in the Daily Calendar on December 22, 2010, and no person moved for party status or otherwise has sought to respond or object to the petitions. No person sought the opportunity to submit evidence or file legal briefs or otherwise sought to exercise their due process rights to participate in the matter.