3. Parties' Positions
3.1. PG&E's PFM
PG&E's PFM states that changed circumstances support modifying the decision to approve a revised Oakley Project. According to PG&E, the utility and Contra Costa have re-negotiated the project PSA to extend the guaranteed commercial availability date from June 1, 2014 to June 1, 2016. PG&E asserts that this amendment, which postpones for two years PG&E's obligation to take ownership of the power plant under the PSA, represents a significant change and is consistent with suggestions made by several Commissioners at the time
D.10-07-045 was issued.
3.2. Opposition to the PFM
On September 22, 2010, The Utility Reform Network (TURN), DRA, and Western Power Trading Forum (WPTF) and Alliance of Retail Energy Markets (AReM) (collectively, "opposing parties") filed comments in opposition to PG&E's PFM. Each of these parties argues that PG&E has not employed the correct procedural vehicle for bringing the Oakley Project back for Commission consideration. They rely in particular on OP 4 of D.10-07-045 which provided that:
Pacific Gas and Electric Company may resubmit this project, via application, for Commission consideration if any of the conditions detailed in Section 3.5.6...are met.
The opposing parties argue that the PFM is an improper procedural vehicle and that none of the conditions referenced above have been met. These parties also argue that the only factual change PG&E claims in support of its PFM is misleading and at best de minimis, and should be afforded no weight by the Commission.
TURN further notes that PG&E's filing raises new factual issues and, unlike an application, a PFM deprives it and other parties of due process in the form of full discovery, presentation of testimony, evidentiary hearings, and legal briefing.
DRA argues that a PFM cannot legally modify D.10-07-045 to approve the Oakley Project because, by the terms of D.10-07-042, the denial of the Oakley Project created a vested right in two other projects, and governmental entities may not interfere with vested contractual rights. DRA further notes that the PFM seeks to relitigate PG&E's approved need as determined in D.07-12-052 and
D.10-07-045. According to DRA, the additional 586 MW associated with the Oakley Project would exceed the procurement authority granted PG&E in
D.07-12-052 and OP 5 of D.10-07-045. Moreover, DRA asserts that there is no evidence in the record that the Oakley Project is needed in 2016.
For their part, WPTF and AReM add that all of PG&E's authorized need has been met with other projects that have been approved by the Commission and the Oakley Project is not needed to meet PG&E's projected bundled customer demand. WPTF and AReM further assert that any reconsideration of the Oakley Project should take place in the context of its next Long-Term Procurement Plan (LTPP) proceeding, when and if there is a determination that new resources are needed.
3.3. Support for the PFM
On September 22, 2010, the Coalition of California Utility Employees and California Unions for Reliable Energy (CUE/CURE) filed comments supporting the PFM. The comments filed by CUE/CURE provide three arguments in support of granting the PFM: (1) that the Oakley Project is economically superior to most projects bid into PG&E's 2008 RFO;8 (2) that "the Commissioners ruled against Oakley, indicating that the Oakley Project could be approved if PG&E modified the contract to allow for a later availability date, greater flexibility, and newer technology"; (3) "PG&E has also made the showing of changed circumstances required by Rule 16.4."9
8 CUE/CURE relies on exhibits submitted by it (Exh. 300 - CUE/CURE/Marcus at
2:9-17, 13:1-9) and PG&E (Exh. 67 - PG&E Answer 2) as support for this claim.
9 Response to PFM filed by CUE/CURE, September 22, 2010, at 1.
