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Congressional Testimony
September 20, 2001, Thursday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 3206 words
COMMITTEE:
HOUSE ENERGY AND COMMERCE
SUBCOMMITTEE: ENERGY AND AIR QUALITY
HEADLINE: NATIONAL ELECTRICITY POLICY
TESTIMONY-BY: WILLIAM L. MASSEY, COMMISSIONER
AFFILIATION: FEDERAL ENERGY REGULATORY COMMISSION
BODY: Prepared Witness Testimony The Committee on
Energy and Commerce W.J. "Billy" Tauzin, Chairman
National Electricity
Policy: Federal Government Perspectives
Subcommittee on Energy and Air
Quality
September 20, 2001
William L. Massey Commissioner
Federal Energy Regulatory Commission
Summary of Testimony
Developing competitive efficient wholesale markets is a highly desirable
goal. There are, however, a number of barriers to creating robust markets,
including grid operation influenced by merchant interests, fractured grid
operation, and a jurisdictional patchwork of rules governing the grid. Necessary
grid expansion is not keeping pace with the requirements of robust wholesale
markets. The lack of uniformity in generation interconnection standards among
regions and utilities poses unnecessary barriers to entry by new efficient
generators. There has been inadequate monitoring and policing of evolving
markets. Demand responsiveness that could act as a brake on price run ups is
generally absent from electricity markets. Vibrant markets require a reliable
trading platform, yet there are no legally enforceable reliability standards.
The Commission does not have all of the tools it needs both to promote large
regional markets and to protect the public interest. A number of legislative
changes are critical to achieving the goal of well functioning wholesale markets
that yield substantial consumer benefits.
All interstate transmission
should be placed under one set of jurisdictional rules. FERC should have
authority to order the formation of RTOs and to site electric transmission
facilities necessary for interstate commerce. Congress should promote the
adoption of uniform nationwide generation interconnection standards. Refunds
should be authorized for past periods if the rates charged are determined to be
unjust and unreasonable. The Commission should have authority to assess civil
penalties against prohibited market behavior, its authority over utility mergers
must be strengthened, and the direct authority to remedy market power should be
provided. FERC and the state commissions must be strongly encouraged to ensure
that electricity markets include demand responsiveness. The promulgation of
mandatory reliability standards for bulk power markets must be authorized by
Congress.
TESTIMONY
Mr. Chairman and Members of the Subcommittee
on Energy and Air Quality:
Thank you for the opportunity to testify on
the role of competitive wholesale power markets in providing affordable reliable
electricity to American consumers and the role of the Federal government in
ensuring the development of the power industry.
Historical and Statutory
Background
The electric power industry has undergone significant
economic and technological changes that have rendered inadequate the current
statutory scheme for regulatory oversight. In order to shorten my testimony, I
am attaching a White Paper recently made available to the Senate Committee on
Energy and Natural Resources by Chairman Bingaman. The White Paper provides
excellent description of the historical development of the electric power
industry and the role various statutes have played in that development.
The development of competitive efficient wholesale markets is a highly
desirable goal. This is primarily a federal responsibility, and achieving this
goal will benefit our nation's consumers and economy. There are, however, a
number of barriers to the creation of robust markets, including grid operation
influenced by merchant interests, fractured grid operation, and a jurisdictional
patchwork of rules governing the grid. Almost a third of the grid is not subject
directly to the FERC's open access and nondiscrimination requirements. Necessary
grid expansion in not keeping pace with the requirements of robust wholesale
markets. This means that cheaper power cannot always reach the customers who
want it. The lack of uniformity in generation interconnection standards among
regions and utilities poses unnecessary barriers to entry by generators that
could provide cheaper power for consumers. There has been inadequate monitoring
and policing of evolving markets. Demand responsiveness could act as a brake on
price run ups, yet is generally absent from electricity markets. Vibrant markets
require a reliable trading platform, yet there are no legally enforceable
reliability standards.
With notable exceptions such as
PURPA and EPACT, the legal framework that governs the
electricity industry is now more than sixty five years old and assumed an old
fashioned cost of service regime. Simply stated, the Commission does not have
all of the tools it needs both to promote large regional markets and to protect
the public interest. I would like to underscore a number of legislative changes
that are critical to achieving the goal of well functioning competitive markets
that yield substantial consumer benefits.
Transmission Jurisdiction
A. One Set of Rules
Congress should place all interstate
transmission under one set of open access rules. That means subjecting the
transmission facilities of municipal electric agencies, rural cooperatives, the
Tennessee Valley Authority, and the Power Marketing Administrations to the
Commission's open access rules. These entities control 30% of the nation's
electricity transmission grid. Their current non-jurisdictional status has
resulted in a patchwork of rules that hinder seamless electricity markets.
Markets require an open non-discriminatory transmission network in order to
flourish.
In addition, all transmission, whether it underlies an
unbundled wholesale, unbundled retail, or bundled retail transaction, should be
subject to one set of fair and non-discriminatory interstate rules administered
by the Commission. This will give market participants confidence in the
integrity and fairness of the delivery system, and will facilitate robust trade
by eliminating the current balkanized state-by-state rules on essential
interstate facilities.
B. Regional Transmission Organizations
While the Commission has made substantial progress in forming the
Regional Transmission Organizations that are critical to the competitive market
place, our hand would be strengthened by a clear declaration by the Congress
that these institutions are in the public interest and should be formed. One
appropriate action would be to give the Commission clear authority to order the
formation of such institutions in compliance with Commission standards. I firmly
believe that large RTOs consistent with FERC's vision in Order No. 2000 are
absolutely essential for the smooth functioning of electricity markets. RTOs
will eliminate the conflicting incentives vertically integrated firms still have
in providing access. RTOs will streamline interconnection standards and help get
new generation into the market. RTOs will improve transmission pricing, regional
planning, congestion management, and produce consistent market rules. We know
for a fact that resources will trade into the market that is most favorable to
them. Trade should be based on true economics, not the idiosyncracies of
differing market rules across the region. A clear message from Congress would
certainly speed the formation of these critical institutions.
C.
Transmission Siting
I would recommend that Congress transfer to the
Commission the authority to site new interstate electric transmission
facilities. The transmission grid is the critical superhighway for electricity
commerce, but it is becoming congested due to the increased demands of a strong
economy and to new uses for which it was not designed. Transmission expansion
has not kept pace with these changes in the interstate electricity marketplace.
Although the Commission is responsible for well functioning electricity
markets, it has no authority to site the electric transmission facilities that
are necessary for such markets to thrive and product consumer benefits. Existing
law leaves siting to state authorities. This contrasts sharply with section 7 of
the Natural Gas Act, which authorizes the Commission to site and grant eminent
domain for the construction of interstate gas pipeline facilities. Exercising
that authority, the Commission balances local concerns with the need for new
pipeline capacity to support evolving markets. We have certificated well over
12,000 miles of new pipeline capacity during the last six years. No comparable
expansion of the electric grid has occurred.
I recommend legislation
that would transfer siting authority to the Commission. Such authority would
make it more likely that transmission facilities necessary to reliably support
emerging regional interstate markets would be sited and constructed. A strong
argument can be made that the certification of facilities necessary for
interstate commerce to thrive should be carried out by a federal agency.
Adequate grid facilities are essential to robust wholesale power
markets. I am confident that transmission will be built in sufficient quantities
if siting authority is rationalized, rate jurisdiction is clarified, and
adequate cost recovery mechanisms and risk-based rates of return are allowed.
D. Generation Interconnection
I would recommend that Congress
direct the Commission to adopt uniform nationwide standards that streamline the
process of interconnecting generators to the grid. The Commission has taken some
steps in this direction by encouraging utilities to file their interconnection
rules, but more must be done. Generation siting decisions should not depend on
how easy it is to hook up in a particular region or with a certain transmission
provider. Standardized and uniform rules promulgated by the Commission are
necessary.
Rates and Market Power
Ensuring just and reasonable
prices must be addressed far differently as we move to competitive markets than
under the monopoly structure. It is more complex now. The basis nature of our
regulatory tasks is moving from reviewing cost-based prices charged by
individual sellers to ensuring good performance by markets. I believe that the
Commission's current regulatory tools are inadequate to the new task.
A.
Refunds
I believe the Commission needs additional authority to properly
address the issue of refunds for unjust and unreasonable wholesale electricity
prices. The Commission has concluded that section 206 of the Federal Power Act
does not allow the Commission to require refunds of unjust and unreasonable
rates charged prior to a date 60 days after a complaint is filed or the
Commission initiates an investigation. I recommend that section 206 be amended
to allow the Commission to order refunds for past periods if the rates charged
are determined to be unjust and unreasonable. Limitations on how far back in
time the Commission can order refunds may be appropriate.
B. Civil
Penalties
I recommend that the Commission be given authority to assess
civil penalties against participants that engage in prohibited behavior in
electricity markets, such as anticompetitive acts and violations of tariff terms
and conditions. If the Commission is to be the "cop on the beat" of competitive
markets, we must have the tools needed to ensure good behavior. Refunds alone
are not a sufficient deterrent against bad behavior. Simply giving the money
back if you are caught is not enough. The consequences of engaging in prohibited
behavior must be severe enough to act as a deterrent.
C. Mergers and
Consolidations
To ensure that mergers do not undercut our competitive
goals, the Commission's authority over mergers involving participants in
electricity markets must be strengthened in a number of ways. Consolidations of
market participants can have adverse consequences to the functioning of
electricity markets. The Commission's detailed experience with electricity
markets and its unique technical expertise can provide critical insights into a
merger's competitive effects. The Commission's authority to review mergers
should be strengthened to ensure that all significant mergers involving
electricity market participants are reviewed.
I recommend that the
Commission be given direct authority to review mergers that involve generation
facilities. The Commission has interpreted the FPA as excluding generation
facilities per se from our direct authority, although that interpretation is
currently before the courts. It is important that all significant consolidations
in electricity markets be subject to Commission review. For the same reason, the
Commission should be given direct authority to review consolidations involving
holding companies.
I am also concerned that significant vertical mergers
can be outside of our merger review authority. Under the current section 203 of
the FPA, our merger jurisdiction is triggered if there is a change in control of
jurisdictional assets, such as transmission facilities. Consequently,
consolidations can lie outside of the Commission's jurisdiction depending on the
way they are structured. For example, a merger of a large fuel supplier and a
public utility would not be subject to Commission review if the utility acquires
the fuel supplier because there would be no change in control of the
jurisdictional assets of the utility. If the merger transaction were structured
the other way, i.e., the fuel supplier acquiring the utility, it would be
subject to Commission review. Such vertical consolidations can have significant
anticompetitive effects on electricity markets. Those potential adverse effects
do not depend on how merger transactions are structured, and thus our
jurisdiction over those transactions should not depend on how they are
structured. Therefore, I recommend that the Commission be given authority to
review all consolidations involving electricity market participants.
D.
Market Power Mitigation
Market power still exists in the electricity
industry. The FERC, with its broad interstate view, must have adequate authority
to ensure that market power does not squelch the very competition we are
attempting to facilitate. However, the Commission now has only indirect
conditioning authority to remedy market power. This is clearly inadequate.
Therefore, I recommend legislation that would give the Commission the direct
authority to remedy market power in wholesale markets, and also in retail
markets if asked by a state commission that lacks adequate authority. For
example, such authority would allow the Commission to order structural remedies
directly, such as divestiture, needed to mitigate market power.
E.
Demand Responsiveness
Markets need demand responsiveness to price. This
is a standard means of moderating prices in well-functioning markets, but it is
generally absent from electricity markets. When prices for other commodities get
high, consumers can usually respond by buying less, thereby acting as a brake on
price run-ups. If the price, say, for a head of cabbage spikes to
$
50, consumers simply do not purchase it. Without the ability
of end use consumers to respond to price, there is virtually no limit on the
price suppliers can fetch in shortage conditions. Consumers see the exorbitant
bill only after the fact. This does not make for a well functioning market.
Instilling demand responsiveness into electricity markets requires two
conditions: first, significant numbers of customers must be able to see prices
before they consume, and second, they must have reasonable means to adjust
consumption in response to those prices. Accomplishing both of these on a
widespread scale will require technical innovation. A modest demand response,
however, can make a significant difference in moderating price where the supply
curve is steep.
Once there is a significant degree of demand
responsiveness in a market, demand should be allowed to bid demand reductions,
or so called "negawatts," into organized markets along with the megawatts of the
traditional suppliers. This direct bidding would be the most efficient way to
include the demand side in the market. But however it is accomplished, the
important point is that market design simply cannot ignore the demand half of
the market without suffering painful consequences, especially during shortage
periods. There was virtually no demand responsiveness in the California market.
Customers had no effective means to reduce demand when prices soared.
It
would be helpful for Congress to send a message that instilling a significant
measure of demand responsiveness into electricity markets is in the public
interest. I would recommend that legislation strongly encourage FERC and state
commissions to cooperate in designing markets that include demand
responsiveness. This would help to ensure just and reasonable wholesale prices
and would be an effective market power mitigation measure.
Reliability
The industry needs mandatory reliability standards. Vibrant markets must
be based upon a reliable trading platform. Yet, under existing law there are no
legally enforceable reliability standards. The North American Electric
Reliability Council (NERC) does an excellent job preserving reliability, but
compliance with its rules is voluntary. A voluntary system is likely to break
down in a competitive electricity industry.
I strongly recommend federal
legislation that would lead to the promulgation of mandatory reliability
standards. A private standards organization (perhaps a restructured NERC) with
an independent board of directors could promulgate mandatory reliability
standards applicable to all market participants. These rules would be reviewed
by the Commission to ensure that they are fair and not unduly discriminatory.
The mandatory rules would then be applied by RTOs, the entities that will be
responsible for maintaining short-term reliability in the marketplace. Mandatory
reliability rules are critical to evolving competitive markets, and I urge
Congress to enact legislation to accomplish this objective.
PURPA and PUHCA Repeal
PURPA
and PUHCA are statutes that may have outlived their usefulness and I would
support their repeal in the context of broad restructuring legislation that
ensures robust competitive power markets. I would support repeal of
PURPA if there is a mechanism enacted to promote the
development of renewable resources, such as a reasonable portfolio standard. I
would support PUHCA repeal if state and federal regulators are given explicit
authority to review the books, records and accounts of utilities when necessary
to ensure just and reasonable rates.
Security of the electric power
infrastructure
The recent acts of terrorism against our Nation
underscore the absolute importance of ensuring that our infrastructure is a
secure as possible. The Commission's primary jurisdiction is over the rates
charged by jurisdictional companies. To that end, I would note that last week
the Commission issued a statement of policy assuring the industries we regulate
that they may recover all prudently incurred costs to safeguard the
infrastructure.
Conclusion
I stand ready to answer questions and
to assist the Subcommittee in any way. Thank you for this opportunity to
testify.
LOAD-DATE: September 21, 2001