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Federal Document Clearing House
Congressional Testimony
December 12, 2001, Wednesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 2480 words
COMMITTEE:
HOUSE ENERGY AND COMMERCE
SUBCOMMITTEE: ENERGY AND AIR QUALITY
HEADLINE: ELECTRICITY TRANSMISSION
TESTIMONY-BY: LINDA K. BREATHITT, COMMISSIONER
AFFILIATION: FEDERAL ENERGY REGULATORY COMMISSION
BODY: The Honorable Linda K. Breathitt Commissioner
Federal Energy Regulatory Commission
Testimony
Mr. Chairman and
Members of the Subcommittee:
I appreciate the opportunity to appear
before you today to discuss the Subcommittee's proposed energy restructuring
legislation. I believe it is important for Congress and the Federal Energy
Regulatory Commission (FERC) to work in tandem to accomplish the critical goal
of ensuring the development of a competitive wholesale electric power market
that is fair and efficient and benefits consumers. While I believe FERC has made
great strides in the effort to increase wholesale competition over the past
several years, I welcome Congressional guidance through legislation that assists
in articulating and clarifying the steps that must be taken toward this end.
My testimony today will comment on H.R. 3406 and highlight specific
aspects of the proposed legislation that I consider to be especially important
from the perspective of a federal energy regulator. As a general matter, I am
very supportive of H.R. 3406. I have testified before this Subcommittee many
times on restructuring issues, and I am pleased that this proposed legislation
is largely consistent with many of the views I have expressed. I am also pleased
that the bill would have the effect of promoting small-scale renewable
generation. As I will discuss in greater detail below, however, there is one
important exception: I do not support the proposed repeal of section 203 of the
Federal Power Act (FPA). Title I of the proposed legislation deals with electric
supply. Among the provisions of Title I, I would like to address my comments to
interconnection, the Public Utility Holding Act of 1935 (PUHCA), the Public
Utility Regulatory Policies Act of 1978 (
PURPA), and merger
review. I have previously testified before this subcommittee that
interconnection rules should be clarified and standardized in order to ensure
that new sources of generation are able to interconnect to the transmission
system. The Commission accelerated this process of standardization in October
with the issuance of an Advanced Notice of Proposed Rulemaking (ANOPR)
addressing procedures and protocols for interconnection. The ANOPR encourages
parties to reach consensus on non cost-related issues of transmission
interconnection and uses as a "strawman" the ERCOT model as supplemented by
current Commission interconnection policy. Reports of the progress being made
are positive, and I support issuance of a NOPR as soon as possible. The
Commission's intention is to instruct parties to take up the issues of cost
responsibility for transmission interconnections in the second phase of the
transmission interconnection rulemaking.
Section 101 of the proposed
legislation would decide the major issue of cost responsibility by assigning
system upgrade costs to the generator. I believe these pricing decisions need to
be made carefully and with consideration of the multiple factors at issue.
Although this legislative process certainly is one forum for deciding this
important issue, the cost responsibility aspect might also benefit from comments
and a consensus process such as the Commission plans for the second phase of our
rulemaking. I expect the second phase, dealing with cost issues, will be more
difficult and contentious; many states already are expressing their views.
Section 101 of the proposed legislation also requires the Commission to
promulgate the technical standards for generators interconnecting with
distribution facilities. Although it is no modest undertaking to establish
national standards for distribution interconnections, I do believe reducing
obstacles for small-scale distributed generation can produce good results.
Distributed generation can increase options for consumers and would provide
added reliability to the grid. Standards for all players, as well as the net
metering provisions included in this legislation, may encourage the growth of
this fledgling movement toward decentralization of the electric grid. Of course,
we should expect the states to insist on a process that allows their opinions
and concerns to be heard since this section shifts jurisdiction to the federal
level.
The proposed legislation repeals PUHCA and replaces it with
increased access by the Commission and state regulators to certain books and
records. I support this legislation. The proposed legislation also repeals
prospectively the
PURPA mandatory purchase obligation. I
support the repeal of the mandatory purchase requirement in Section 210 of
PURPA. I also support proposed section 133 of the bill, which
would "grandfather" existing
PURPA contracts.
I would
like to highlight Subtitle D of Title I, which would eliminate FERC's merger
review authority now embodied in section 203 of the FPA. This is the single
aspect of this proposed legislation that I cannot support. The title itself of
Subtitle D, "Redundant Review of Certain Matters," reveals my basic concern in
this regard: I do not agree that FERC merger review is redundant. All merger
reviews are not created equal. FERC's FPA "public interest" standard is
different from the "no harm to competition" antitrust standard of the Sherman
Act and the Clayton Act. The relevant information required for the type of
review conducted by FERC is not the same information required by another agency
conducting antitrust review of the same merger. While the same merger may be
reviewed by various agencies, the analyses are not parallel; standards and
requirements vary from agency to agency.
I believe it is important for
FERC to continue its public interest-focused merger analysis, which looks at a
merger's effects on rates, regulation, and competition. FERC, in its regulatory
role, is particularly attuned to the issues that may arise as a result of
competition and industry consolidation, including technical issues and new kinds
of mergers that may lead to the blurring of traditional utility services with
other business lines. By acknowledging these issues, I believe that FERC has
developed a dynamic and flexible process - one that is required in today's
market. I urge the Subcommittee to continue to allow FERC to retain the
authority to protect the public in this respect.
Title II of the
proposed legislation deals with transmission operation. Section 201 of the
proposed legislation would allow the Commission to require all public utilities
and transmitting utilities to offer open access transmission services, extending
the requirement for open access to transmitting utilities that are not public
utilities. As I have testified on other occasions, I believe it is important to
have equal and open access to all transmission at nondiscriminatory rates and
comparable terms and conditions. At the same time, the public power sector has
expressed concerns unique to its status, and these concerns should be addressed
with respect to sections 201 and 202. Chairman Wood's testimony requests a
change to the legislation to allow all tariffs for open access transmission
service be on file with the Commission. I share the Chairman's concerns on these
issues and support his testimony in this regard.
Section 202 addresses
Regional Transmission Organizations (RTOs). There is no more important effort
underway at FERC today than the formation of RTOs. Since the Commission began
promoting RTOs as a means to remove barriers and impediments present in
wholesale electricity markets, I have been fully committed to the goal of RTO
formation. While there is room for disagreement on the best path to attain the
goal of fully functioning RTOs, FERC is very actively pursuing the completion of
the development of RTOs with clear responsibilities, independence, and
sufficient scope.
When the Commission issued Order No. 2000 in December
1999, we decided to adopt an open and collaborative process that relied on
voluntary regional participation. Since that time, I have strongly urged that
FERC not depart from the basic philosophies embodied in Order No. 2000,
particularly in the absence of a formal decision to do so, informed by the views
of interested parties and state commissions. In my view, sufficient question
remains over FERC's authority to mandate the formation of, or participation in,
RTOs, such that any moves on our part toward a mandate will be counterproductive
to FERC's ultimate goals. My concern is that this lack of clarity could lead the
industry and the Commission to divert resources away from the important task of
RTO implementation, and instead toward expensive and time- consuming litigation
over FERC's authority. I therefore support Congressional clarification of FERC's
authority with respect to RTOs.
Proposed section 202 mandates that all
transmission utilities - both investor-owned utilities and public power/electric
power cooperative utilities - participate in an RTO. To the extent this
direction will eliminate any existing uncertainty regarding FERC's authority and
permit RTO formation to proceed expeditiously, I support it. Proposed section
202 also requires FERC to establish uniform market rules, including the
establishment and enforcement of "seams" agreements. This direction is
consistent with a generic rulemaking proceeding that FERC already has announced.
While the RTO standards embodied in the proposed legislation are, for
the most part, consistent with those established in Order No. 2000, I believe it
is possible that RTO procedures and standards may need to be adapted over time.
In his testimony, Chairman Wood suggests that instead of codifying detailed
standards and procedures for implementation of RTOs, additional flexibility for
FERC to oversee an adaptive process might be warranted. Chairman Wood advocates
a legislative approach that would have Congress adopt a simple provision
permitting the Commission to require RTOs where it finds such RTOs to be in the
public interest. I believe this approach would serve to remove existing
uncertainties, while preserving FERC's ability to tailor its RTO program to an
increasingly dynamic marketplace.
If Congress decides to take the
approach of codifying RTO standards and procedures, Chairman Wood's testimony
outlines several concerns regarding (1) the right of a single RTO applicant for
an evidentiary hearing; (2) the requirement for "preponderance" of the evidence
supporting FERC decisions; (3) the judicial review provision; (4) the
requirement for a proposed RTO to have "sufficient generation within the RTO's
boundaries to serve the load within such boundaries;" (5) the right of each
pubic utility in an RTO to make rate filings; (6) the definition of "market
participant;" and (7) the preclusion of FERC modification to the governance and
scope of an RTO approved before the law's enactment. I share the Chairman's
concerns on these issues and support his testimony in this regard.
Title
III of the proposed legislation provides for Commission certification of one
electric reliability organization to develop and enforce reliability standards
for the bulk-power system. I agree that the voluntary reliability system, which
has been in place for over three decades, should be replaced with one in which a
self-regulated independent reliability organization, with oversight by the
Commission, establishes and enforces mandatory reliability standards. I
especially support the provisions of section 216(e), which provides for
sanctions and penalties for failure to comply with reliability rules. In my
view, such a change in the manner in which the reliability of the interconnected
grid is overseen and managed is required in order to ensure a competitive bulk
power market.
The provisions of Title IV direct the Commission to
conduct a rulemaking to establish incentive and performance-based rate policies
for expansion of transmission networks to promote expansion of the transmission
grid to support the growth of competitive markets. Section 401 states that such
policies should encourage the deployment of new transmission technologies to
increase capacity of existing networks and to reduce line losses; promote
environmentally sound transmission design techniques; and promote the efficient
use of transmission systems on a real-time basis. I believe that the
Commission's transmission rate policies should encourage and promote such policy
objectives. I would point out that I believe these goals may be achieved through
rate policies other than incentive or performance-based rates. In my view,
policies such as allowing a reasonable return on equity or accelerated
depreciation for new technologies would act to encourage such investment.
Section 402 would give the Commission a "backstop" role in transmission
siting. I believe that this is certainly an improvement over the present
jurisdictional scheme, in which the Commission has no role in the permitting and
siting of new transmission facilities. However, as I have testified previously,
my primary concern with a backstop role for the Commission is that such an
approach could result in costly and inefficient duplication of processes,
records, and efforts by the various decisional authorities involved in
transmission siting.
My preference would be for FERC to be granted
federal eminent domain authority similar to the authority the Commission
exercises with respect to the siting of interstate natural gas pipelines under
the Natural Gas Act. The Commission could develop procedures to ensure
cooperation with the states and provide for regional participation. I believe
that this more centralized approach is preferable from an efficiency standpoint,
and will result in less bureaucracy and more timely decisions for transmission
providers and consumers. I am not advocating that the Commission should have
siting authority for electric distribution lines or power plants. I believe that
state governments are best positioned to make those determinations.
Finally, I would like to acknowledge the provisions of Title VII of the
proposed legislation. These provisions strengthen the Commission's authority to
assess civil and criminal penalties for violations of the FPA and increase the
level of such penalties. I have advocated such changes and believe they will
greatly aid the Commission in fulfilling its regulatory responsibilities.
In conclusion, I again thank the Subcommittee for this opportunity to
comment upon the Subcommittee's proposed legislation. As I have testified in
previous hearings before this Subcommittee, the Commission must have sufficient
authority to advance its goals of achieving fair, open and competitive bulk
power markets. I believe that this legislation, with the modifications I have
suggested, would clarify our authority and greatly assist the Commission in
realizing the benefits of wholesale competition.
LOAD-DATE: December 13, 2001