V. PacifiCorp's Need for Haste is a
Circumstance of its Own Creation
PacifiCorp claims it must complete the entire line - including the disputed portion - by June 2007 to avoid blackouts. However, at hearing, it was shown that PacifiCorp's local load in the Weed area is far below the transmission capacity on the line at issue. It is PacifiCorp's firm transmission contract - entered into before PacifiCorp had adequate capacity to serve the customer - that has created the risk of reliability problems.
PacifiCorp claims it cannot curtail its customer's firm transmission service without being charged with discrimination. This is incorrect. The Energy Policy Act of 2005 gives priority to native load (local distribution customers) over firm transmission customers in the event curtailments are required on a transmission line: "Congress in section 1233 of EP Act 2005 [Energy Policy Act of 2005] added section 217 to the FPA [Federal Power Act], entitled `Native Load Service Obligation,' which addresses transmission rights held by load-serving entities. It allows load-serving entities to use their own and contracted-for transmission capacity to the extent required to meet their service obligations, without being subject to charges of unlawful discrimination."16 Further, "Order No. 888 [cited by PacifiCorp in its post hearing brief] granted a rollover right to existing firm service customers, but allowed transmission providers to restrict that rollover right if the capacity was reasonably forecasted to be needed to serve native load customers, as long as that restriction was specified in the customer's service contract." (Id., ¶ 62.)17
We do not intend by this discussion to adjudicate the rights of PacifiCorp and its customer under the firm transmission contract. By the same token, PacifiCorp's claim that the line must be upgraded by June 2007 is based entirely on its alleged inability to get out from under its obligations to its firm transmission customer, despite its ability to do so in past years. Without the firm transmission obligation, PacifiCorp can easily supply its local load. We are unwilling to foreclose full environmental review under these circumstances.
As we explain in this decision's summary, other delays attributable to PacifiCorp - and our considerable attempts despite those delays to accommodate PacifiCorp's schedule - further persuade us that haste is imprudent. We gave PacifiCorp the right to construct most of the line at the earliest possible moment, with the understanding that the contentious 1.6 miles of the route required more extensive review. We have now considered the evidence at hearing, and are convinced that we must have a range of options before us given the considerable problems the Homeowners raised at hearing about Option 3.
16 Federal Energy Regulatory Commission (FERC) Docket Nos. RM05-25-000 & RM05-17-000, Preventing Undue Discrimination and Preference in Transmission Service, 71 Federal Register 32636, 32647, ¶ 63.
17 See also cases cited in the Reply Brief on Behalf of Donald M. and Judy Mackintosh, filed November 16, 2006, at 8-9.
