20150706132921 Filed Date: 07/06/2015 State Corporation Commission of Kansas BEFORE THE STATE CORPORATION COMMISSION OF THE ST A TE OF KANSAS In the Matter of the Joint Application of Westar Energy, Inc. and Kansas Gas and Elect1ic Company for Approval to Make Certain Changes in their Charges for Electric Service. Docket No. 15-WSEE-115-RTS RESPONSE OF WESTAR ENERGY, INC. AND KANSAS GAS AND ELECTRIC COMPANY TO PETITION TO INTERVENE OF CLIMATE AND ENERGY PROJECT COME NOW Westar Energy, Inc. and Kansas Gas and Electric Company (Westar and for their Response to the Petition to Intervene (Petition of Climate and Energy Project (CEP state as follows: 1. On March 2, 2015. Westar filed its application to make changes in its charges for electric service. CEP filed its Petition on June 26, 2015. As will be discussed below, CEP's Petition does not state a proper basis for intervention. Additionally, because CEP's Petition was filed so late in the procedural schedule, it would inherently be disruptive to the process. As a result, CEP's Petition should be denied. 2. In the alternative, if the Commission does allow CEP to become a party to this proceeding, the Commission should strictly limit their participation as it did in Kansas City Power & Light Company's (KCP&L rate case, Docket No. 15-KCPE-116-RTS. I. CEP DOES NOT MEET THE STANDARD FOR INTERVENTION 3. CEP contends that Westar's rate case - specifically Westar's proposal to increase the residential basic service fee (customer charge - could impact customers' interest in investing in energy efficiency and conservation programs. This assertion is speculative and any impact to CEP from Westar's proposals in the docket would be indirect. As a result, this allegation does not provide a sufficient basis for intervention in this docket. The fact that one of CEP 's board members 1
is a Westar customer also does not form a sufficient basis for intervention. Additionally, contrary to CEP's assertion that its intervention "will not impair the orderly and prompt conduct of the proceedings in this matter," CEP's intervention - and its request to fully participate including discovery and testimony - at this late stage in the procedural schedule would be inherently disruptive. A. CEP's alleged interests are speculative and indirect and do not support CEP's proposed intervention. 4. Any potential impacts on CEP's interests in promoting energy efficiency from Westar' s proposals are speculative and are not a sufficient basis for intervention. In order to support its request for intervention on this basis, CEP must demonstrate that its "legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding... " K.A.R. 82-1-225. To establish standing, the law is clear, a putative party must show a perceptible, rather than a speculative harm from the action. Speculative harm alone does not create standing. See, e.g., Halliburton Energy Services, Inc. v. Gunter, 167 P.3d 645 (Wyo. 2007; In re Michigan Consolidated Gas Company, 2010 WL 199671 (Mich. App. 2010(unpublished opinion ("As to the claim that NEMA [National Energy Marketers Association] or its members could show that they were in danger of suffering a concrete injury, we find it to be without merit. The future possibility of rate decreases for direct customers, which might in tum lead to a future loss of customers for NEMA's members, is too attenuated to constitute a clearly 'actual and imminent' harm.". 5. The possibility that Westar' s rate design proposal could potentially have an impact on CEP's ability to promote energy efficiency in the future by affecting customers' potential interest in energy efficiency is not a basis for intervention. Any such impact would be far too speculative to rise to the level of a legal interest supporting intervention. As the Commission has 2
recognized, intervention requires more than a showing of an attenuated or speculative nexus to the proceeding. Specifically, the Commission stated that in proceedings with multiple parties asserting an attenuated or speculative nexus about the possible impact of a Commission decision on their interests can impair the orderly and prompt conduct of the proceedings and may not add materially to the record upon which the Commission must base its decisions. Application of Mid-Kansas, et al. for Transfer of Certificates, Docket No. 13-MKEE-447-MIS, Order on Jurisdiction and Standing, at~ 9 (April 26, 2013. 6. Westar's proposal to increase the residential basic service fee does not directly impact CEP. Instead, any impact on CEP would be indirect, as a result of decisions customers make regarding investments in energy efficiency in the future. This type of indirect impact is speculative and does not form the basis for intervention. See Buckeye Linden Pipe Line Company LLC, Order Accepting Tariff, 147 FERC P 61,249, at~ 11 (June 26, 2014. In Buckeye, FERC found that the owner of a storage terminal facility where customers of the pipeline stored their jet fuel did not have standing to protest the pipeline's request for a rate increase despite claims by the storage terminal owner that the rate increase would decrease those customers' usage of its facility. FERC explained: Motiva lacks standing to file a protest because Motiva has not demonstrated a "substantial economic interest" as required by Commission regulations. Motiva is neither a current shipper nor a future shipper on Buckeye Linden's system. The sole economic interest claimed by Motiva is that its customers will pay a higher rate to move aviation jet fuel from Motiva's terminal to the New Jersey-New York airports. The effects of the proposed rates upon Motiva itself are speculative and unsupported... Accordingly, Motiva has not demonstrated a substantial economic interest, and, thus, lacks standing to challenge the proposed tariff. 3
Id. Similarly, CEP's claim of a legal interest in the proceeding based on how it predicts customers may respond to changes in Westar's residential basic service fee is insufficient to support CEP's intervention in the docket. 7. Furthermore, to the extent CEP is attempting to represent the interests of residential customers who might wish to invest in energy efficiency in the future, CEP does not have standing to represent the legal or economic interests of those customers. Those customers are well represented by both CURB and Commission Staff. B. The fact that one of CEP's board members is a Westar customer is insufficient to confer standing on CEP. 8. CEP suggests that the fact that one of its board members is a residential customer ofwestar's somehow confers standing on CEP to intervene in Westar's rate case. This suggestion is illogical. It is CEP, not the board member, seeking to intervene in the docket. As such, it is CEP that must demonstrate that it meets the Commission's standards for intervention. 9. As a residential customer, Mr. Antle's interests are well represented by the Citizens' Utility Ratepayer Board (CURB, which is the statutorily designated representative of residential customers in Kansas. 10. If CEP wishes to intervene, it must establish that it as an organization - not its board members - has a direct and non-speculative interest in the proceeding. As discussed above, CEP has not met this standard and its intervention should be denied. C CEP's intervention would impair the orderly and prompt conduct of Westar's rate case. 11. Pursuant to K.S.A. 77-521, before granting a petition to intervene, the Commission must determine that "the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention." 4
12. CEP waited until June 26, 2015, to file its Petition - almost four months after Westar filed its Application in the docket and only 13 days before Staff and intervenor testimony is due. Westar' s response to the Petition is not due until July 6, 2015, only three days before testimony is due. This means that the Commission will not likely have issued an order on CEP's Petition before the date any direct testimony would be due. 13. Yet, CEP requests full intervention in the docket with the ability to conduct discovery, file testimony, and participate at the hearing. There is no way that CEP's request can be granted without the Commission adjusting the procedural schedule that has been in place since September 2014, to allow CEP time to conduct discovery and file testimony. 14. CEP's filing of its Petition so late in the schedule is inherently disruptive to the process and would undoubtedly impair the orderly and prompt conduct of Westar's rate case. As a result, CEP's Petition should be denied. II. IF CEP IS ALLOWED TO INTERVENE, ITS PARTICIPATION SHOULD BE LIMITED 15. As has been discussed, none of CEP's expressed concerns justify granting intervention. However, should the Commission nevertheless grant CEP's Petition, pursuant to K.A.R. 82-1-225( c, Westar requests that the Commission limit their participation in this proceeding consistent with the limitations the Commission placed on CEP's intervention in KCP&L's current rate case docket, Docket No. 15-KCPE-116-RTS. 16. In that docket, the Commission found that because the potential impact of the docket on CEP is indirect, CEP's participation should be limited and "CEP will not be allowed to participate at the hearing." In the Matter of the Application of Kansas City Power & Light Company to Make Certain Changes in its Charges for Electric Service, Docket No. 15-KCPE- 116-RTS, Order Granting Limited Intervention to Climate Energy Project, at if 5 (May 5, 2015. 5
Any order so limiting CEP's participation, should explicitly state that CEP may not file testimony in the docket. 1 17. If CEP is permitted to intervene, the Commission should apply the same limitations on its participation in Westar's rate case docket. WHEREFORE, Westar respectfully requests that the Commission deny CEP's Petition to Intervene or, in the alternative, limit its participation in this matter and for such other and further relief as may be appropriate. Respectfully submitted, WESTAR ENERGY, INC. KANSAS GAS AND ELECTRIC COMPANY Senior Corporate Counsel 818 South Kansas A venue Topeka, KS 66612 Telephone: (785 575-8344 Fax: (785 575-8136 Cathy. Dinges(?U,westarenergv.com Martin J. Bregman KBE #12618 Stinson Leonard Street LLP 1201 Walnut Street, Suite 2900 Kansas City, MO 64106 Telephone: (816 691-3195 Fax: (816 691-3495 Email: marty.bregman@stinsonleonard.com 1 In the KCP&L docket, CEP filed testimony despite the Commission's order excluding it from participation from the hearing. The Commission subsequently granted KCP&L's motion to strike that testimony. See Order Granting KCP&L's Motion to Strike Testimony of Climate Energy Project Witness Ashok Gupta, In the Matter of the Application of Kansas City Power & Light Company to Make Certain Changes in its Charges for Electric Service, Docket No. 15-KCPE-116-RTS (June 11, 2015. In order to avoid a similar occurrence in this docket, the Commission should explicitly state that CEP may not file testimony in this docket. 6
STATE OF KANSAS COUNTY OF SHAWNEE VERIFICATION ss: Cathryn J. Dinges, being duly sworn upon her oath deposes and says that she is the attorney for Westar Energy, Inc. and Kansas Gas and Electric Company; that she is familiar with the foregoing Response that the statements therein are true and correct to the best of her knowledge and belief. CG/;~,~ SUBSCRIBED AND SWORN to before me this k'i& day of ~, 2015.... Oebbielee A. <»J.. dr / } NOTARY PUILIC~:~fe~ KANSAS flj:yt;u_{/.j/jffif uv APPT exp: ~ Notary Public My Appointment Expires: ~ C.6 1 d..t>j 7 14 14' CERTIFICATE OF SERVICE I hereby certify that on this fa_th day of July, 2015, the foregoing Response was electronically filed with the Kansas Corporation Commission and an electronic copy was delivered to each party on the service list. 7