UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Southern California Edison Company ) Docket No. ER17-787-000 MOTION FOR LEAVE TO ANSWER AND ANSWER OF SOUTHERN CALIFORNIA EDISON COMPANY Pursuant to Rules 212 and 213 of the Rules and Regulations of the Federal Energy Regulatory Commission ( Commission or FERC ), Southern California Edison Company ( SCE ) files this Motion for Leave to Answer and Answer to the Protest filed by Ecos Energy LLC ( Ecos ). 1 I. MOTION FOR LEAVE TO ANSWER Although Commission Rule 213(a)(2) generally prohibits responses to protests, the Commission has previously waived this Rule and allowed a response when such a response will ensure a complete and accurate record in the case. 2 The Commission also permits responses that assist the Commission in addressing the issues raised in the protests. 3 SCE s Answer achieves 1 Motion for Leave to Intervene and Protest of Ecos Energy LLC, Docket ER17-787-000 (fld. Feb. 3, 2017) ( Ecos Protest ). 2 See, e.g., Delmarva Power & Light Co., 93 FERC 61,098 at 61,259 (2000) (allowing answers to a protest in order to insure a complete and accurate record ); N. Natural Gas Co., 91 FERC 61,212 at 61,767 n.10 (2000) (allowing an answer to a protest to achieve a complete and accurate record ). 3 See, e.g., Carolina Power & Light Co., 93 FERC 61,032 at 61,068 (2000) (allowing an answer to a protest where the answer would assist in the Commission s understanding and resolution of the issues raised ); Int l Transmission Co., 92 FERC 61,276 at 61,912-13 (2000) (accepting an answer to a protest where the answer assists in the Commission s understanding and resolution of the issues in this proceeding ). See Potomac-Appalachian Transmission Highline, LLC, 122 FERC 61,188 at P 23 (2008) ( PATH ) (answer accepted
all of these goals because it provides information that makes it clear that the Protest should be dismissed. As such, SCE requests that the Commission consider and accept SCE s Answer. II. SUMMARY SCE has filed a Notice of Cancellation of the three Service Agreements for Wholesale Distribution Service ( Distribution Service Agreements or DSAs ). Section 4 of the Distribution Service Agreements provides that Service under this Service Agreement shall terminate on... the termination date of Distribution Customer s [] CPUC-jurisdictional Generator Interconnection Agreement between Distribution Provider and Distribution Customer. 4 Ecos had three California Public Utilities Commission ( CPUC )-jurisdictional generator interconnection agreements ( GIAs ) with SCE under CPUC Rule 21. These agreements were terminated, under their terms, by SCE on November 8, 2016. Ecos did not contest those terminations at the CPUC. As such, SCE properly filed the Notice of Cancellation in this docket. Ecos does not dispute that the DSAs must terminate when the related GIAs terminate. Nor has Ecos raised any dispute regarding the termination of the generator interconnection agreements at the CPUC which, as explained more fully below, has jurisdiction over the GIAs at issue here. Thus, SCE acted properly when it filed the Notices of Cancellation of the DSAs, in accordance with Section 4 of the DSAs. As such, Ecos s Protest must be dismissed as a matter of law. because it assisted decision-making process); S. Cal. Edison Co., 122 FERC 61,187 at P 19 (2008) ( 2008 CWIP Order ) (answer assists decision-making process). 4 Southern California Edison, Notices of Cancellation for three Service Agreements for Wholesale Distribution Service Between SCE and ECOS Energy LLC, Service Agreement Nos. 805, 806 and 807, Docket ER17-787-000 (fld. Jan. 13, 2017). 2
III. ANSWER A. Rule 21 Generator Interconnection Agreements Are Not FERC Jurisdictional The only issue properly within the scope of this docket is the termination of the DSAs. This docket is not, and cannot be, a forum for Ecos to resolve any other disputes with SCE. Nevertheless, Ecos improperly seeks to use this docket to dispute whether SCE appropriately terminated its GIAs with Ecos. Not only are the terms of the GIAs beyond the scope of this docket, which pertains only to the cancellation of the DSAs, but also, critically, these GIAs are not within the Commission s jurisdiction, and instead are under the jurisdiction of SCE s state regulating authority, the CPUC. FERC has established that when a Qualified Facility sells all of its exports to the grid to the local utility such as the three Ecos projects in this instance then the relevant state authority exercises authority over the interconnection: In Order No. 2003, the Commission addressed the boundary between state and federal jurisdiction over agreements pursuant to which QFs interconnect with the transmission grid: The Commission s Regulations govern a QF s interconnection with most electric utilities in the United States including normally non-jurisdictional utilities [footnote omitted]. When an electric utility is obligated to interconnect under Section 292.303 of the Commission s Regulations, that is, when it must purchase the QF s total output, the relevant state authority exercises authority over the interconnection and the allocation of interconnection costs. 5 The Commission has determined that it will exercise jurisdiction or require the filing of a generator interconnection agreement only if there is some manifestation of a QF s plan to sell output to third parties. 6 Here, there is no manifestation or explicit affirmation of the QF s right 5 Florida Power & Light Co., 133 FERC 61,121, P 19 (2010) (emphasis added) (citations omitted). 6 Florida Power & Light Co., 133 FERC 61,121, P 21 (2010) (emphasis added). 3
to make sales to third parties. To the contrary, Ecos has indicated, via recitals to each of these three GIAs, that the [interconnection agreement] shall be used for an interconnection of a Generating Facility that sells all of its exports to the grid to the Distribution Provider [SCE]. 7 Ecos states in its Protest that its GIAs were entered into for the purpose of interconnecting Qualifying Facilities that will seek to sell energy to SCE under its Renewable Market Adjusting Tariff ( Re-MAT ). 8 Re-MAT is a feed-in tariff ( FIT ) and a PURPA program established by the CPUC to implement statutory amendments to Cal. Pub. Utils. Code Section 399.20. 9 Ecos wrongly asserts that a Re-MAT participant sells power in the wholesale market under the FIT. 10 Under the Re-MAT program, a project sells its energy to the host utility here, SCE pursuant to terms established by the CPUC in SCE s CPUC-approved Schedule Re-MAT Tariff and CPUC-approved standard contract Form 14-934 ( Renewable Market Adjusting Tariff Power Purchase Agreement ). 11 Thus, Ecos s asserted intent to participate in Re-MAT does not demonstrate it will sell power to third-parties. In addition, SCE notes that the GIAs between SCE and Ecos are based upon a CPUCapproved form, Form 14-925 titled Rule 21 Generator Interconnection Agreement for Exporting Generating Facilities Interconnecting Under the Independent Study, Distribution Group Study, or Transmission Cluster Study Process. Form 14-925 was developed through a 7 Ecos Protest, at Attachment. (emphasis added). 8 Ecos Protest, at p. 2. 9 See Rulemaking (R.) 11-05-005, Decision (D.) 12-05-035, 2012 WL 2049420 (Cal. P.U.C.); R.11-05-005, D.13-05-034, 2013 WL 2446732 (Cal. P.U.C.). 10 Ecos Protest, at p. 2. 11 See Schedule Re-MAT, Renewable Market Adjusting Tariff, available at https://www.sce.com/nr/sc3/tm2/pdf/ce351.pdf; Renewable Market Adjusting Tariff Power Purchase Agreement, Form 14-934, available at https://www.sce.com/nrc/tm2/pdf/14-934.pdf. 4
CPUC rulemaking process and approved for use by the CPUC. 12 Thus, SCE s actions under the GIAs are not within the Commission s jurisdiction, and, to the extent Ecos wishes to assert disputes relating to the GIAs, it must do so before an appropriate forum. B. SCE s Notice of Cancellation of DSAs Was Proper and DSAs Should Be Terminated Each DSA at issue in this docket was filed with and accepted by the Commission. 13 Each DSA provides that Service under this Service Agreement shall terminate on... the termination date of Distribution Customer s [] CPUC-jurisdictional Generator Interconnection Agreement between Distribution Provider and Distribution Customer. 14 On November 8, 2016, Interconnection Customer (Ecos) was notified by SCE, the Distribution Provider, that SCE exercised its right to terminate the GIA. Thus, by the DSAs own terms, they also terminated. Ecos does not dispute that the DSAs terminate when the related GIA terminates. Rather, Ecos alleges the GIAs should not have been terminated. As discussed above, the GIAs are 12 See CPUC, Rulemaking (R.) 11-09-001, Decision (D.) 14-04-003, Decision Adopting Revisions to Electric Tariff Rule 21 to Include a Distribution Group Study Process and Additional Tariff Forms, 2014 WL 1628468, at Ordering Paragraph No. 5; SCE Advice Letter 3050-E, available at https://www.sce.com/nr/sc3/tm2/pdf/3050-e.pdf. 13 The Commission accepted the Distribution Service Agreement for the Little Morongo Solar Project for filing in a letter order issued in Docket No. ER15-2092 dated August 19, 2015. The Commission accepted the Distribution Service Agreement for the Indian Canyon Solar Project for filing in a letter order issued in Docket No. ER15-2093 dated August 19, 2015. The Commission accepted the Distribution Service Agreement for the Painted Hill Solar Project for filing in a letter order issued in Docket No. ER16-43 dated November 16, 2015. 14 See Southern California Edison, Service Agreement No. 805, Docket ER-2092, at p. 1; Southern California Edison, Service Agreement No. 806, Docket ER-2093, at p. 1; Southern California Edison, Service Agreement No. 807, Docket ER16-43, at p. 1. 5
CPUC-jurisdictional and Ecos cannot dispute termination in this forum. Thus, SCE s Notice of Cancellation for the three DSAs was proper and should be approved. C. Notwithstanding Jurisdiction, Ecos s Claim That Re-MAT Violates PURPA Is Not Supported by FERC Orders Ecos s claims asserting that it should be excused from default under the GIAs are meritless, and SCE does not substantively address such arguments here because the agreements are not within this Commission s jurisdiction. 15 However, SCE notes that, while Ecos s claims are vague and unsupported, they appear to rely on an allegation that SCE is in violation of PURPA because SCE is complying with Re-MAT s statewide generation capacity cap, as established by the CPUC to implement California statutory requirements. 16 However, FERC has already explicitly addressed this topic and issued a declaratory order, holding that the CPUC s implementation of Re-MAT s statewide cap is not inconsistent with PURPA and FERC regulations. 17 As such, any assertion by Ecos that Re-Mat violates PURPA is baseless. 15 Should the Commission conclude it has jurisdiction to review the interconnection agreement allegations, the Commission must not simply re-instate the GIAs since the allegations rest upon unsupported allegations of material fact. 16 See Ecos Protest, at p. 3. See also Cal. Pub. Utils. Code Section 399.20(f). 17 Winding Creek Solar LLC, 151 FERC 61,103 P 3, 7 (2015) ( Winding Creek alleges that the Re-MAT program, a feed-in tariff program for eligible renewable energy generation sources with a generation capacity of 3 MW or less, violates PURPA by imposing a 750 MW statewide cap on the obligation of utilities under section 292.304(d)(2)(ii) of the Commission's regulations to provide qualifying facilities (QFs) a long-term avoided cost rate.... Given the availability of California's Standard Contract for QFs 20 MW or Under, Winding Creek has not demonstrated that the California Commission's implementation of PURPA, specifically the 750 MW statewide cap on the obligation of utilities under the Re-MAT program, is inconsistent with PURPA and our regulations. ). 6
IV. CONCLUSION In sum, the GIAs are under the jurisdiction of the CPUC. The GIAs have been properly terminated in accordance with their terms and such termination has not been contested before the appropriate jurisdictional authority. Upon the GIA termination, the DSAs, by their own terms, were also terminated. Thus, SCE filed the notice of cancellations. As the termination is required by the clear terms of the DSAs, the Protest must be dismissed as a matter of law and SCE respectfully requests that its Notice of Cancellation filing be approved. WHEREFORE, SCE respectfully requests that the Commission take account of SCE s Answer, as set forth above, in ruling on the Notice of Cancellation. Respectfully submitted, /s/ Matthew Dwyer Matthew Dwyer Southern California Edison Company P.O. Box 800 Rosemead, CA 91770 Tel.: (626) 302-6521 E-mail: matthew.dwyer@sce.com Dated: February 21, 2017 7
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing MOTION FOR LEAVE TO ANSWER AND ANSWER OF SOUTHERN CALIFORNIA EDISON COMPANY upon each person designated on the official service list compiled by the Secretary in this proceeding. Dated at Rosemead, California, this 21 st day of February, 2017. /s/ Norman Goss Norman Goss, Legal Administrative Assistant SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California 91770