Copyright 2001 eMediaMillWorks, Inc.
(f/k/a Federal
Document Clearing House, Inc.)
Federal Document Clearing House
Congressional Testimony
July 25, 2001, Wednesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 2469 words
COMMITTEE:
SENATE ENERGY AND NATURAL RESOURCES
HEADLINE: NATIONAL ENERGY POLICY
TESTIMONY-BY: STEPHEN WARD, PUBLIC ADVOCATE,
AFFILIATION: STATE OF MAINE
BODY: July 25, 2001
Testimony of
Stephen Ward Public Advocate, State of Maine And President The National
Association of State Utility Consumer Advocates
Before the Committee on
Energy and Natural Resources Senate of the. United States
Chairman
Bingaman, distinguished members of the Committee on Energy and Natural
Resources: I am Stephen Ward and have served since 1986 as Maine's Public
Advocate representing utility consumers before Maine's Public Utilities
Commission, before FERC, the FCC and the courts. I also have served since March
of 2000 as President of NASUCA, the National Association of State Utility
Consumer Advocates. NASUCA consists of organizations charged by statute with the
representation of utility consumers and currently has members in 40 states. I
also serve as an appointed member of NERC's Market Interface Committee. It is an
honor and a privilege to appear on this distinguished panel and I thank you for
the extending this invitation to NASUCA and its 43 member offices for whom I am
testifying today. Just since April of last year when I testified on behalf of
NASUCA before this Committee, NASUCA's representatives have testified on four
occasions before committees of the House or Senate on matters pertaining to
electricity restructuring. We are very happy to be invited once more to provide
the consumer's perspective at these hearings, as I will attempt to do again
today. In April of 2000 in my testimony before this Committee, I presented
NASUCA's "Consumer Checklist" of necessary safeguards in any federal
restructuring legislation. Because of turnover on this Committee I thought it
might be useful to provide a copy of the "Consumer Checklist," which is attached
to this testimony.
The Chairman's White Paper on Electricity Legislation
seems to me to an auspicious start in the process of marking up comprehensive
energy legislation. That is because the White Paper takes a broad overview of
the history and current functioning of utility electricity markets, focusing as
much on the forest as the trees. This is appropriate in the case of a commodity
like electricity that has so many unique characteristics. Unlike virtually any
other commodity, it cannot be stored and therefore must have production match
usage in every moment of the day. Electricity is a commodity that, over the
years, has been heavily freighted with the public interest, benefiting from the
exercise of eminent domain in the construction of its transmission lines and
being subject to multiple expectations for affordability, for low- income
support and for protections against disconnection. But most importantly,
electricity is a commodity which virtually every citizen, every family, every
business depends on as a necessity of life. For all of these reasons, it makes
great sense to proceed cautiously and with great care in undertaking fundamental
changes in this industry, by means of federal legislation. I urge you not to
hurry as you take up this task.
The White Paper also provides a very
convenient framework for discussion and analysis of key issues, laying out the
issues in several general areas (including "Other Provisions" and "Tax
Provisions"). Since many of these issues correspond to proposals that have been
debated by NASUCA's membership in 40 states around the country, I can provide
commentary on some of the White Paper's proposals from NASUCA's perspective. In
other cases, NASUCA has adopted no resolution that is directly germane to a
proposal in the White Paper. In such cases, I will note the absence of a NASUCA
Position.
Since 1986, NASUCA has adopted 16 resolutions that directly
address the restructuring of the electricity industry and the creation of
competitive choices for consumers - large and small. Of these sixteen
resolutions, ten directly address desirable or necessary features of federal law
or regulation, as opposed to policy proposals that are entirely within the scope
of state jurisdiction. Probably the most vexing aspect of any effort to
transform a system of vertically integrated utilities into a system relying in
part on competitive markets, it seems to me, is the inter-mixture of state and
federal responsibilities. As the Committee is fully aware, aspects of the
electric industry (such as retail pricing) have been entirely under state
jurisdiction since the first decades of the last century. It is equally so that,
since enactment of the Federal Power Act in 1935, other aspects (such as
interstate transmission pricing) have been completely under federal
jurisdiction. Any comprehensive effort to restructure this industry must tread
lightly on these jurisdictional dividing line.
The White Paper proposes
to reconfigure jurisdiction over all transmission-related questions so as to
make FERC's jurisdiction pre-eminent. For a near-majority of states today where
transmission rates are bundled together with distribution and generation rates,
however, this proposal does represent a departure from the status quo. NASUCA
has no formal resolution addressing the question of whether bundled transmission
prices should be set by FERC in a way that pre-empts state action. Due to the
multiplicity of views within NASUCA, on the part of states like Maine that have
undertaken comprehensive restructuring and as well for states in low cost
regions that have no incentive to restructure, it is doubtful that NASUCA will
ever adopt a final view as to whether FERC authority over transmission should
properly supercede state authority. In any event, I won't offer one today.
Similarly NASUCA has no formal position as to whether public,
cooperative and federal entities like TVA, REA cooperatives and marketing
authorities should be subject to FERC oversight under the Federal Power Act.
Speaking just for myself, however, it appears to me to be difficult to establish
workable protections against market power and against malfunctions that
jeopardize the reliability of the grid without establishing broad and consistent
authority within FERC across all types of utilities - public and private. NASUCA
has taken a strong stance in favor of granting FERC authority to require
electric utilities to join Regional Transmission Organizations and, to the
extent possible, enabling public entities like TVA likewise to participate in
the operation of regional RTO's. A NASUCA resolution, adopted two years ago,
recognizes the primacy of FERC jurisdiction over RTO development but urges
collaboration with state PUC's in formulating common agendas for managing
transmission congestion and developing new transmission facilities.
With
respect to the reliability proposals in the White Paper, NASUCA has strongly
supported the creation of an independent NERC (North American Electric
Reliability Council) that is not dependent on the short-term preferences of any
user of the transmission system. With NARUC and other parties, NASUCA has
endorsed the stand-alone NERC legislation that is pending before Congress. In a
1998 Resolution, NASUCA unanimously supported enactment of "federal legislation
that would clarify FERC authority to review the reliability requirements imposed
by NERC (or any successor national organization) and to ensure that such
requirements are adopted and implemented in a manner that benefits all
consumers." Key among the interests that NASUCA has advanced in three of its
resolutions is the principle that for RTO's, for ISO's and for NERC, Congress or
FERC should assure the operational independence of grid managers from players in
national and regional electric markets. One good reason for guaranteeing this
independence is to enable grid managers to act impartially with sanctions and
penalties, as an enforcement entity in the event of malfeasance or grid
disruption - rather than merely as a scheduler of transaction in a regional
market. For this reason I applaud the White Paper's suggestions on this point.
The White Paper's third major area addresses "Rates and Market Power"
and does so in a manner that, to me, may be too optimistic in endorsing
market-based outcomes. This section of the White Paper doesn't appear to focus
on what is unfortunate reality today: competitive markets are not generating
just and reasonable prices in many hours of the year in Western markets, and in
some hours of the year in New York and New England markets. In view of the price
spikes and blackouts that have plagued California, I think it is premature to
base a discussion of rates and market power entirely on the hope that markets
can be made workably competitive. NASUCA addressed these issues in a resolution
adopted at its mid-year meeting last month. That resolution urges FERC not to
rely on market-based rates in situations where markets are not functioning
adequately but, instead, to use its powers under the Federal Power Act to set
just and reasonable rates based on a cost analysis or oher appropriate means of
mitigation. In essence, the resolution urges FERC not to accept the prices
produced by any market as necessarily just and reasonable but to investigate for
evidence of market power and marketing anomalies. Possibly the difference
between NASUCA's position and the White Paper is a question of degree, or merely
a matter of emphasis but, to my mind, this nuance is an important one.
The final portion of the "Rates and Market Power" section concerns
market mitigation measures as ordered by FERC. We agree that market mitigation
(i.e. following up on evidence of market power or of marketing anomalies with a
formal investigation and, where warranted, an enforcement action) is a critical
aspect of discipline that keeps bidders honest and helps markets function. To my
mind, this mitigation function is a key aspect of ISO operations, and shouldn't
necessarily reside at FERC rather than in the regions. At present, both ISO-New
England and the New York ISO have authority to reset any price that is excessive
or that results from market power. I don't think it makes sense to take away
such authority as already exists.
With respect to regional planning and
siting, NASUCA has no specific resolution that addresses the exercise of eminent
domain for a project under federal jurisdiction. As a general matter, it makes
great good sense to promote the coordination of state and federal siting
authority, wherever possible. But I doubt that NASUCA's members would endorse
the proposal that FERC receive eminent domain authority for electricity
comparable to what already exists for gas pipelines - and certainly not
unanimously. As a matter of practice, all of NASUCA's resolutions are adopted by
consensus, so I would be very surprised to see a unified NASUCA position on a
matter as controversial as a federal transmission line siting.
The White
Paper discusses the potential repeal of PUHCA and
PURPA on
terms that are very close to NASUCA resolutions adopted in 1996 and 1997. NASUCA
has explicitly endorsed adoption of a renewable portfolio standard as a device
for creating diversity in the nation's supply mix and supporting new,
non-polluting sources of generation. Historically, NASUCA's members have been
defenders of
PURPA as a technique for injecting competition
into the closed operations of electric utilities. NASUCA also has repeatedly
testified in opposition to PUHCA repeal - at least until new systematic
protections against affiliate abuse and cost shifting within holding companies
are in place. Competition in wholesale markets is too powerful a force to
operate without the structural restraints that PUHCA has imposed since 1935, in
my opinion. The last thing that we should be doing today is to assume that the
absence of regulation is the same as vigorous competition. As the nation learned
from Sam Insull 80 years ago, the absence of regulation leads directly to
unregulated monopoly power.
The White Paper also endorses the creation
of a Public Benefits Fund from which financial support can be drawn for a
variety of purposes including low-income assistance, conservation programming,
and R&D activities. States like Maine, since 2000, have had in place a
state-mandate for ratepayer-supported public benefits programs. They should not
see federal legislation disturbing or replacing these mechanisms. Having said
this, however, I am confident that NASUCA's membership today would endorse the
same approach as was adopted in a 1998 resolution: any comprehensive federal
electricity legislation should beef up support for ratepayer-funded
weatherization, and for targeted low- income support assistance in addition to
the support already provided through the LIHEAP and DOE Weatherization programs.
It is critical that, as markets evolve, the ability to afford electricity not
separate "the haves" from "the have-nots." We cannot tolerate having the
nation's most vulnerable populations become the casualties of competition.
Finally and before closing, I should turn to the last substantive set of
issues raised in the White Paper, concerning changes in the tax code. While it
is true that the federal tax law is beyond the purview of this Committee, it
also is the case that tax policy establishes long-lived incentives that directly
affect investment decisions and, in the case of utility plant, can affect the
bottom-line earnings of investors. Missing from the list of ideas that appear in
the White Paper's final paragraph is a proposal that NASUCA endorsed by
resolution last year and that also has received support from NARUC and the
American Public Power Association. The proposal is to require that any tax
benefits (so-called Excess Deferred Income Taxes and unamortized Investment Tax
Credits) that are on the books of an electric utility for generating units that
are divested by operation of state law or sold voluntarily should be
flowed-through to ratepayers in lowered distribution rates and not be captured
by the utility's shareholders. Such a one-time windfall for shareholders was
never envisioned when the tax rate was lowered in 1986, was not sought by the
utilities and EEI at that time, and cannot be justified today. We urge the
Committee to recommend action to close this billion dollar loophole.
In
sum, it should be clear that NASUCA has formally endorsed many of the specific
proposals that appear in the White Paper. Dating back to 1996, NASUCA's
resolutions have anticipated key impacts on consumers that may result from
industry restructuring if regulators and legislators are not vigilant. You are
to be congratulated for the breadth and depth of the White Paper's proposals.
NASUCA as an organization will make every effort to assist you in your
deliberations as you refine these proposals.
Thank you again for the
opportunity of testifying today on behalf of the nation's electricity consumers.
LOAD-DATE: July 26, 2001