III. Utility and Holding Company Actions

In 1996, the California State Legislature enacted Assembly Bill (AB) 1890, in order to bring competition to California's electric generation market. At that time, the utilities projected billions of dollars in "stranded costs" - costs that the utilities might not be able to recover in the normal course of business in the newly competitive market. See Cal. Pub. Util. Code § 367. AB 1890 was designed, in part, to give the utilities an opportunity to recover those stranded costs. To that end, AB 1890 froze the retail electric rates at the level in effect on June 10, 1996, until the end of a "transition period." See Cal. Pub. Util. Code §§ 367, 368(a). The rationale behind AB 1890 was that because the frozen rates were higher than the utilities' then-current or projected operating costs, the excess gave the utilities a reasonable opportunity to recover their stranded costs, as well as their other costs (e.g., distribution, transmission, and the cost of power that they have to purchase) by March 31, 2002. See Cal. Pub. Util. Code § 367. This statute was enacted with the cooperation and support of respondents. For example, PG&E stated in an annual report to shareholders that it had "developed" the statute.⁶

During the first years of the transition period, the utilities and their respective holding companies received billions of dollars in excess revenues due to the high frozen rates and other provisions of AB 1890. For example:

* PG&E has received $2.9 billion in up-front cash proceeds from rate reduction bonds,⁷ and over $9 billion in headroom and other transition cost revenues.⁸

* Edison has received $2.5 billion in up-front cash proceeds from rate reduction bonds,⁹ and over $7 billion in headroom and other transition cost revenues.¹⁰

* SDG&E received at least $900 million in headroom revenue and other transition cost revenues. SDG&E also received $658 million in up-front cash proceeds from the issuance of rate reduction bonds.¹¹

Much of these funds were transferred from the utilities to their respective holding companies.¹² Specifically:

* From 1998 through September 2000, PG&E provided approximately $3.9 billion to PG&E Corporation in the form of $1.1 billion in dividends on common stock and $2.8 billion in common stock repurchases.¹³ Of the amounts disbursed, PG&E paid $125 million in dividends to its parent in the third quarter of 2000 alone.¹⁴

* From 1998 through September 2000, Edison provided EIX approximately $2 billion in dividends on common stock.¹⁵ Of this amount, Edison paid over $90 million to its holding company in the third quarter of 2000 alone. ¹⁶

* From 1998 through September 2000, SDG&E provided Sempra Energy at least $763 million in dividends on common stock.¹⁷ Of the amount disbursed to its holding company from 1998 through September 2000, SDG&E paid at least $200 million to its parent in the third quarter of 2000 alone.¹⁸

The holding companies did not retain most of these funds, but instead disbursed them in a variety of ways:

* From 1998 through September 2000, PG&E Corporation paid out approximately $1.3 billion in dividends to shareholders and repurchased approximately $1.9 billion worth of common stock.¹⁹ There also is evidence that PG&E Corporation disbursed over $800 million to its unregulated subsidiaries between 1997 and 1999.²⁰ PG&E has informed the Commission that PG&E Corporation subsequently acted to shield the assets of these subsidiaries, using a technique called "ring fencing."²¹ According to PG&E, as a result of the ring fencing, the assets of PG&E Corporation's ring fenced subsidiaries are unavailable to assist the utility. See Transcript of proceedings in Application (A.) 00-11-038/A.00-11-056 /A.00-10-028 (hereinafter "TR") at 1566, 1602-03.

* From 1998 through September 2000, EIX paid out approximately $1 billion in dividends to shareholders, and repurchased approximately $1.2 billion worth of common stock.²² There also is evidence that between January 1, 1996 and November 30, 2000, EIX disbursed $2.5 billion to the Mission Group, an unregulated subsidiary.²³ Edison took steps to shield the assets of some of the Mission Group's subsidiaries through the "ring fencing" mechanism.²⁴

* From 1998 through September 2000, Sempra paid out approximately $888 million in dividends to shareholders and repurchased approximately $726 million worth of common stock.²⁵

Dramatic increases in wholesale energy prices starting in the summer of 2000 have caused PG&E, Edison, and SDG&E to accumulate large amounts of debt, because their recent operating costs have exceeded their recent revenues. As a result of this accumulated debt, each utility has applied to the Commission for emergency rate increases, and each has claimed that its financial condition either threatens to impair, or has impaired, its ability to serve and operate. PG&E and Edison have also claimed that they face imminent bankruptcy without an immediate rate increase. By way of example only:

PG&E:

August 2000	PG&E Corporation retains bankruptcy counsel. See TR at 1559.
Fall 2000	PG&E states that it is "very concerned about having adequate liquidity." TR at 1559.
Oct. 4, 2000	PG&E states: "The TRA balance currently includes over $2 billion in uncollected wholesale power costs, and the undercollection balance is continuing to increase at a rate of hundreds of millions of dollars per month. . . . The amount of such uncollected costs in PG&E's TRA was approximately zero at the end of May 2000, approximately $700 million at the end of June 2000, approximately $1.2 billion at the end of July 2000, and approximately $2.2 billion at the end of August 2000." Emergency Petition Of Pacific Gas And Electric Company For Expedited Modification Of Decisions 99-10-057 and 00-03-058, at 3-4 (Oct. 4, 2000).
Nov. 22, 2000	PG&E files application for rate increase, stating: "Despite the cooler fall weather, wholesale electricity prices remain sky high, with no immediate relief in sight, either in the marketplace or from regulators. PG&E's undercollected power costs under the AB 1890 rate freeze soared from $2.2 billion at the end of August, 2000, to over $3.4 billion at the end of October, 2000." Emergency Application of Pacific Gas and Electric Company to Adopt a Rate Stabilization Plan, at 3 (A.00-11-056, filed Nov. 22, 2000).
Dec. 26, 2000	PG&E states that it expects to use up all cash reserves within 3-7 weeks. Pacific Gas and Electric Company Rate Stabilization Plan Supplemental Testimony at 2-3 (filed Dec. 26, 2000 in A.00-11-038/A.00-11-056/A.00-10-028).
Jan. 2, 2001	PG&E Corporation files SEC Form 8-K, stating that the utility "must either raise substantial sums of new capital or default on its payment obligations."
Jan. 10, 2001	PG&E announces that it is suspending payment of its 4th quarter 2000 common stock dividend. PG&E Corp. Jan. 10, 2001 SEC Form 8-K.
Jan. 12, 2001	PG&E states that it is deferring construction and maintenance because of liquidity problems. Response of Pacific Gas and Electric Company to Inquiry of Administrative Law Judge Regarding Release of Contractors and Hiring Hall Employees (filed Jan. 12, 2001 in A.00-11-038/A.00-11-056/A.00-10-028).
Feb. 1, 2001	PG&E states that it has defaulted on $437 million of maturing commercial paper, and notes that it is unable to make full payments due to the ISO and the PX. PG&E Corp. Feb. 1, 2001 SEC Form 8-K.
Feb. 6, 2001	Three qualifying facilities (QFs) sue PG&E for having made only partial payment for the facilities' December 2000 power deliveries and for having notified the QFs it was unable to pay the full amount due under the power purchase agreements. See PG&E Corp. Feb. 14, 2001 SEC Form 8-K.
Feb. 26, 2001	PG&E considers itself to be in an emergency financial situation. TR at 1580.
March 2, 2001	PG&E Corporation arranges for $1 billion loan; its announcement does not indicate that any of that money will be used to assist PG&E. See PG&E Corp. March 2, 2000 news release.
March 5, 2001	PG&E claims that despite enactment of AB1X-1, it "remains backed against the abyss. In spite of the enactment of Assembly Bill (AB) 1x-1 during the legislature's current emergency legislative session, PG&E continues to incur additional power costs, including potentially over $1.5 billion in January and February of this year. Credit markets remain closed to PG&E. PG&E remains unable to pay its bills, and owes billions of dollars to its lenders and creditors. PG&E is in default to these lenders and creditors (and in technical default to several of its remaining lenders, as well) and therefore remains outside of involuntary bankruptcy only because of the good graces of those lenders and creditors." Opening Brief of Pacific Gas and Electric Company, filed March 5, 2001, in A.00-11-038/A.00-11-056/A.00-10-028, at 1.

Edison:

Nov. 14, 2000	Edison states that its "liquidity is being materially and adversely affected" by high wholesale energy costs. Edison Nov. 14, 2000 SEC Form 10-Q, at 32.
Nov. 16, 2000	Edison seeks immediate rate increase and states that as of September 31, 2000, the undercollection in Edison's TRA was $2.4 billion. See Application of Southern California Edison Company for Authority to Institute a Rate Stabilization Plan with a Rate Increase and End of Rate Freeze Tariffs, at 8 (A.00-11-038, filed November 16, 2000).
Dec. 4, 2000	Edison files declaration in federal court, claiming that because of mounting debt, it has frozen hiring and suspended "discretionary equipment purchases and service contracts, new facility construction, and upgrades." It further claims that without rate increases, further cutbacks would be necessary, which "could jeopardize reliability of services provided by SCE." Declaration of James Scilacci in Support of Southern California Edison Company's Opposition to Defendants' Motion to Transfer Venue (dated Dec. 4, 2000) (filed in Southern California Edison Company v. Lynch, No. 00-12056-RSWL (United States District Court for the Central District of California), ¶ 3.
Dec. 6, 2000	Edison files declaration in federal court claiming that as of October 31, 2000, its cumulative undercollection of wholesale power costs was $2.64 billion, and that Edison projects the undercollection to rise to $3.7 billion by December 31, 2000. See Declaration of James Scilacci (dated Dec. 6, 2000) (filed in Edison v. Lynch), ¶¶ 9-11.
Dec. 14, 2000	Edison files declaration in federal court claiming that energy wholesalers are refusing to sell Edison energy because of its growing debt. See Supplemental Decl. of Stephen E. Frank in Support of Southern California Edison Company's Showing of Exigent Circumstances (dated Dec. 14, 2000) (filed in Edison v. Lynch), ¶¶ 3-7; see also id., ¶ 8 (referring to Edison's financial condition as an "emergency").
Jan. 5, 2001	In letter to Edison employees, Edison Vice President Dick Rosenbaum states that Edison has implemented cash conservation measures, and that it "is inevitable that reductions of this magnitude will have great impact on . . . reliability . . . ." Attachment C to Edison Response To CCUE Emergency Motion (A.00-11-038) (January 5, 2001).
Jan. 15, 2001	EIX files SEC Form 8-K, stating that due to increasing undercollections, Edison has begun cost-cutting measures that will "require lower service levels for customers" and "reduce near-term capital expenditures to levels that will not sustain operations in the long term," and noting that it may be forced into bankruptcy.
Jan. 18, 2001	Edison files SEC Form 8-K, stating that Edison has suspended payment on a variety of obligations as they have become due, including payments to the PX, and dividends on its common and preferred stock.
Jan. 22, 2001	Edison files motion in federal court seeking order for immediate rate increase. Edison claims it has used up all existing credit, it is unable to get additional credit, it faces the "imminent prospect of involuntary bankruptcy," and an immediate rate increase is "urgently needed to prevent imminent irreparable harm" to "public health and safety." Memorandum of Points and Authorities in Support of Plaintiff Southern California Edison Company's Motion for Preliminary Injunction (Jan. 22, 2001) at 1-2 (filed in Edison v. Lynch).

SDG&E:

Oct. 24, 2000	SDG&E states that its growing accumulated debt, or "undercollection," "jeopardize[s] its ability to continue to provide safe, reliable utility service." Application of San Diego Gas & Electric Company, A.00-10-045 (Oct. 24, 2000) at 5.
Jan. 24, 2001	SDG&E requests immediate rate increase, stating that if Commission does not immediately grant it authority to implement a "rate surcharge," its growing debt will "jeopardize customer welfare." Application of San Diego Gas & Electric Company, A.01-01-044, (Jan. 24, 2001) at 4; see also id. at 9 (describing SDG&E "cash conservation" efforts and their effect on its ability to provide adequate customer service).
Feb. 14, 2001	SDG&E states that it has an immediate need for cash "in order to maintain service to its customers." Petition of San Diego Gas & Electric Co. (U 902-M) for Modification of D.01-02-011 (Feb. 14, 2001) at 2; see also id. at 3 (SDG&E "needs to be able to borrow money promptly to ensure that it has the financial capacity to maintain normal service to its customers").
Feb. 20, 2001	SDG&E states that absent additional funds, it will be "unable to sustain its on-going financial obligations needed to continue to serve utility customers." Application of San Diego Gas & Electric Co. (U 902-M) for Rehearing of Decision No. D.01-02-011 (Feb. 20, 2001) at 12; see also id. at 6 (need for cash "to continue to be able to serve is utility customers"); 8 (same); 10 (growing debt "endanger[s] SDG&E's ability to meet its on-going obligations needed to provide utility service").

⁶ See PG&E Corp. March 5, 1998 SEC Form 10-K, Exhibit 13, 1997 Annual Report to Shareholders, at 20. ⁷ December 1998 Agreed upon Special Procedures Audit of Transition Cost Balancing Accounts and Headroom Revenues for the six months ended June 30, 1998, prepared by Mitchell & Titus, LLP and Barrington-Wellesley Group, Inc. for this Commission (at III-34) (Agreed Upon Special Procedures Audit); see also D.01-01-018, slip op. at 13. ⁸ See D.01-01-018, slip op. at 13. The difference between frozen rates and the authorized costs of providing service (i.e., revenue requirements and Commission-approved costs and obligations) is referred to as headroom. See id. at 17, Finding of Fact 7. ⁹ See December 1998 Agreed Upon Special Procedures Audit at III-34; see also D.01-01-018, slip op. at 13. ¹⁰ See D.01-01-018, slip op. at 13. ¹¹ See sum of revenues in SDG&E's Monthly TCBA reports through June 30, 1999, on file with the Commission; December 1998 Agreed Upon Special Procedures Audit, at III-34. ¹² By describing these fund transfers, we do not mean to imply that they necessarily were improper. Such transfers only become problematic, as discussed below, in the event that the utilities experience or anticipate experiencing financial distress. ¹³ PG&E Corp.'s 1999 Annual Report to Shareholders, PG&E Co. Statement of Consolidated Stockholders' Equity, at 35; PG&E Corp. Nov. 1, 2000 SEC Form 10-Q, Liquidity and Financial Resources, Cash Flows From Financing Activities. ¹⁴ PG&E Corp. Nov. 1, 2000 SEC Form 10-Q, Liquidity and Financial Resources, Cash Flows From Financing Activities; PGE&E Corp. Aug. 2, 2000 SEC Form 10-Q, Liquidity and Financial Resources, Cash Flows From Financing Activities. ¹⁵ Edison 1999 Annual Report to Shareholders, Consolidated Statement of Changes in Common Shareholders' Equity, at 18; Edison Nov. 14, 2000 SEC Form 10-Q, at 7. ¹⁶ Edison Nov. 14, 2000 SEC Form 10-Q, Consolidated Statement of Cash Flows, at 7. ¹⁷ SDG&E March 29, 2000 SEC Form 10-K, 1999 Annual Report, Management's Discussion and Analysis of Financial Conditions and Results of Operations, at 17; SDG&E Nov. 13, 2000 SEC Form 10-Q, Condensed Statements of Consolidated Cash Flows. ¹⁸ SDG&E Nov. 13, 2000 and Aug. 14, 2000 SEC Form 10-Q, Condensed Statements of Consolidated Cash Flows. ¹⁹ PG&E Corp. 1999 Annual Report to Shareholders, PG&E Corp. Statement of Consolidated Common Stock Equity, at 30; PG&E Corp. Nov. 1, 2000 SEC Form 10-Q, Liquidity and Financial Resources, Cash Flows From Financing Activities. ²⁰ See BWG Audit Report at VI-4 to VI-6. (In ongoing rate stabilization proceedings, A.00-11-038 et al., this Commission has engaged independent auditors to separately evaluate PG&E's and Edison's financial condition and claims of insolvency. Within the scope of PG&E's audit, the Barrington-Wellesley Group, Inc. (BWG) reviewed PG&E's financial position, as well as that of its holding company and affiliates. See BWG audit at I-1. Within the scope of Edison's audit, KPMG, LLP reviewed Edison's financial data, and where applicable, the similar records of EIX and Edison's other affiliated companies in the Mission Group. See KPMG audit at I-1.

These audits have been released as public documents and are being addressed in the rate stabilization proceedings. To the extent the audits are applicable to this proceeding, the Commission may take official notice of them, as well as the related record developed in the rate stabilization proceedings. See Rule 73 of the Commission's Rules of Practice and Procedure.