Decision 09-03-046 March 26, 2009
Before The Public Utilities Commission Of The State Of California
Order Instituting Rulemaking to Implement Senate Bill No. 1488 (2004 Cal. Stats., Ch. 690 Rulemaking 05-06-040 (Sept. 22, 2004)) Relating to Confidentiality of Information. |
R.05-06-040 (Filed June 30, 2005) |
ORDER GRANTING LIMITED REHEARING OF
DECISION 06-12-030
AND DENYING REHEARING
OF DECISION IN ALL OTHER RESPECTS
I. INTRODUCTION
Decision (D). 06-12-030 is the second decision issued in Rulemaking (R.) 05-06-040, concerning implementation of Senate Bill (SB) 1488, and resolves questions posed by D.06-06-066 as modified by D.07-05-032 (Modified D.06-06-066). In D.06-12-030, we defined the terms market participant, non-market participant and reviewing representative. D.06-12-030 further assigned some, but not all, of the parties who submitted comments in R.05-06-040 to the categories of market or non-market participants.
Pursuant to these decisions, we adopted a process that protects the confidentiality of market sensitive information submitted to the Commission in accordance with Public Utilities Code section 454.5, subdivision (g).1 This process is applicable whether the confidential market sensitive information is sought via a request pursuant to the California Public Records Act (CPRA), or pursuant to discovery in a Commission proceeding. In D.06-12-030, we expanded the process adopted in Modified D.06-06-066, as it pertains to parties in Commission proceedings, to permit a limited discovery process for reviewing representatives of active market participant parties to access confidential market sensitive information, provided such parties agree to abide by the Commission's confidentiality requirements. D.06-12-030 also adopts rules for who may be a reviewing representative. In addition, among other things, D.06-12-030 prohibits simultaneous representation in various Commission proceedings by attorneys, expert witnesses, and/or consultants of parties that are non-market and market participants.
Californians for Renewable Energy (CARE) timely applied for rehearing of D.06-12-030 alleging the decision errs in finding that the California Independent Systems Operator (CAISO), as well as California Manufacturers and Technology Association (CMTA) and California Large Energy Consumers Association (CLECA), are non-market participants. It also challenges
D.06-12-030 by alleging that two Ninth Circuit Court of Appeal decisions impact the Federal Energy Regulatory Commission's (FERC) regulation of the bulk power market and affect the CAISO's tariffs. We have reviewed each and every allegation of error raised by CARE and find, as discussed below, that they are without merit. Accordingly, we deny CARE's application for rehearing.
Three associations, Independent Energy Producers Association (IEP), the Cogeneration Association of California (CAC) and the Energy Producers and Users Coalition (EPUC) have also timely filed applications for rehearing of D.06-12-030. IEP filed separately, and CAC and EPUC filed jointly. All three have been determined by D.06-12-030 to be market participants. In their joint application for rehearing of D.06-12-030, CAC and EPUC allege that
D.06-12-030 defines market participant so broadly that it is not in compliance with SB 1488, because under the definition adopted, all parties in a Commission proceeding in which the adopted rules apply cannot meaningfully participate and the adopted rules create a process that does not foster open decision-making. They contend that because of the designation of market participant, they are treated disadvantageously and are denied a process they contend is due. CAC and EPUC also take issue with the rationale provided by D.06-12-030 for their individual designations as a market participants. Additionally, CAC and EPUC claim that D.06-12-030 errs in not defining what constitutes a de minimis threshold of participation in the natural gas market and further that there is inadequate evidentiary support for the determination that participation in the natural gas market above a de minimis threshold of one megawatt (1 MW) is enough to render EPUC a market participant. Also, CAC and EPUC contend that there is inadequate support for the 1MW de minimis threshold adopted for market participants in the electric market. In addition, CAC and EPUC allege
D.06-12-030 is internally inconsistent in its treatment of reviewing representatives since it permits some market participants to use them and forbids others from the same process. Moreover, they contend that D.06-12-030 errs in its inconsistent treatment of simultaneous representation by attorneys, as well as expert witnesses and consultants, of market and non-market participants, and that the determination is not supported by the record.
IEP raises similar concerns in its application for rehearing. IEP contends that all parties are entitled to comparable access to information that forms the basis for Commission decisions, including decisions based at least in part on confidential market sensitive information. Like CAC and EPUC, IEP also challenges as arbitrary and capricious, and without adequate evidentiary support, the determination that the 1MW figure adopted from D.06-06-064 for load serving entities with local resource adequacy requirements of less than 1MW establishes a level of participation in the electric market that is truly de minimis in nature. IEP also charges that D.06-12-030 mischaracterizes IEP's interest in being a party in various Commission proceedings and takes issue with what it characterizes as an unsupported inference in D.06-12-030 that IEP participates in Commission proceedings because of improper motives. In addition, IEP argues that even if it did have improper motives-which it claims not to have-such motives should not affect its First Amendment right as a party to petition the government, and that by D.06-12-030, it is unlawfully prevented from doing so. IEP further contends that by prohibiting it from using any process available to other parties to access confidential market sensitive information, D.06-12-030 creates an unlawful prior restraint on its First Amendment rights. IEP contends that D.06-12-030 denies it due process and equal protection, which IEP contends are fundamental rights. IEP alleges that the restrictions D.06-12-030 places upon its rights are not narrowly tailored to further a legitimate state interest and, further, because
D.06-12-030 violates fundamental rights, IEP alleges the decision must be based on a compelling state interest, which, according to IEP, it is not. Like CAC and EPUC, IEP believes that the reviewing representative exception is illusory, particularly since it is denied to IEP, and IEP alleges that D.06-12-030 is arbitrary and capricious in denying it the reviewing representative option, and also in the decision's treatment of those representing market participants.
The allegations by CAC/EPUC and IEP concern how the rules adopted in this underlying proceeding will affect the proceedings in which they will be applied (generally ratemaking proceedings).2 Pacific Gas and Electric Company, San Diego Gas and Electric Company and Southern California Edison Company jointly (collectively hereinafter the IOUs) filed an opposition to the applications for rehearing.
We have reviewed each and every allegation raised by CAC/EPUC and by IEP and are of the opinion that there is merit to some of the arguments presented by those applicants for rehearing. Accordingly, for the reasons discussed below, we shall grant a limited rehearing of D.06-12-030; however in all other respects the applications for rehearing are denied.
1 Hereinafter, all statutory references are to the Public Utilities Code unless otherwise indicated.
2 The IOUs point out that no one is seeking to prevent the applicants for rehearing from participating in the underlying rulemaking proceeding or any "quasi-legislative" proceedings; however, the focus of the arguments presented by IEP, CAC and EPUC concern their status as intervenor parties in Commission proceedings in which the adopted rules shall apply.
