UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Service Company of Colorado Black Hills/Colorado Electric Company Docket No. ER15-237-003 Docket No. ER15-326-000 Docket No. ER15-295-002 Docket No. ER15-348-002 (Not Consolidated MOTION TO INTERVENE OUT OF TIME AND MOTION FOR CLARIFICATION OF THE EDISON ELECTRIC INSTITUTE Pursuant to Rules 212 and 214 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission ( FERC or Commission, 18 C.F.R. 385.212 and 385.214, the Edison Electric Institute ( EEI, on behalf of its member companies, hereby respectfully submits this Motion to Intervene Out of Time and Motion for Clarification ( Motion in response to the Order Rejecting Proposed Joint Dispatch Agreement and Tariff Revisions ( June 23 Order issued June 23, 2015, in the above captioned dockets. 1 The June 23 Order, among other rulings, finds that the Standards of Conduct prohibit the sharing of certain information among the parties under the Joint Dispatch Agreement ( JDA. 2 As set forth in detail herein, EEI submits this Motion to request clarification regarding the applicability of the Standards of Conduct and to highlight the potential adverse implications to its members that could result from a policy shift through the June 23 Order. 1 Public Service Company of Colorado, et al., 151 FERC 61,248 (2015 ( June 23 Order. 2 Id. at PP 100-101.
NOTICES AND COMMUNICATIONS All communications and correspondence with respect to this Motion should be served upon the following individuals, who should be included on the official service lists compiled by the Secretary of the Commission in these proceedings: Adam L. Benshoff Aryeh Fishman Senior Attorney Associate General Counsel Edison Electric Institute Edison Electric Institute 701 Pennsylvania Ave, N.W. 701 Pennsylvania Ave, N.W. Washington, D.C. 20004 Washington, D.C. 20004 Phone: 202-508-5019 Phone: 202-508-5023 Email: abenshoff@eei.org Email: afishman@eei.org MOTION TO INTERVENE OUT OF TIME Pursuant to Rule 214, 18 C.F.R. 385.214, EEI submits the following in support of its Motion. EEI is the association of shareholder-owned electric utilities in the U.S. Our members serve 95 percent of the ultimate customers in the shareholder-owned segment of the industry, and they represent approximately 70 percent of the nation s electric power industry. As a result, EEI members are uniquely situated to weigh in on, and directly impacted by, policy shifts at the Commission. In deciding whether to grant a motion to intervene filed after the prescribed period, the Commission may consider whether: (i The movant had good cause for failing to file a motion to intervene within the time prescribed; (ii any disruption of the proceeding might result from permitting intervention; (iii the movant s interest is not adequately represented by other parties in the proceeding; and (iv any prejudice to, or additional burdens upon, the existing parties might result from permitting the intervention. 3 3 18 C.F.R. 385.214(d(1. 2
The Standards of Conduct issue, and more specifically the Commission s potential expansion of the information applicable thereunder, first arose in the June 23 Order and therefore good cause exists for the out-of-time motion to intervene. Given that a shift in Commission policy on this issue has the potential to significantly impact EEI s members, EEI respectfully requests that the Commission find good cause and grant this motion. No disruption of the proceeding will result from granting EEI s request to intervene in this proceeding, nor will any of the parties be prejudiced or subject to additional burdens as a result of permitting EEI to intervene at this point. EEI accepts the record in this proceeding as it stands. Given a Request for Rehearing has already been filed and EEI will not raise any additional issues, EEI s intervention will not prolong the proceeding or impose additional burdens on the parties. 4 Furthermore, EEI s interests are not adequately represented in the proceeding. EEI represents the interests of its member utilities nationwide who routinely rely on the Commission s precedent surrounding the Standards of Conduct to ensure compliance. No other party in the proceeding directly represents the interests of the numerous companies which stand to be affected by a shift in the Commission s policy expanding the scope of the Standards of Conduct. Due to the unique position held by a member association such as EEI, the Commission has stated that [w]here membership associations meet the standard of Rule 214, it should encourage informed pleadings 5 Finally, the Commission has previously granted an association s motion to intervene out of time because the association is able to present [the] common views regarding an issue of continued significance to the industry. 6 4 See American Electric Power Service Corp., 48 FERC 61,225 (1989. 5 120 FERC 61,265 (2007. 6 Southern Natural Gas Co., et al., 130 FERC 61,193 at P 7 (2010. 3
MOTION FOR CLARIFICATION Of specific concern to EEI are the findings in the June 23 Order that the Standards of Conduct prohibit the sharing of certain information among the parties to the JDA. 7 As discussed in detail below, EEI submits this Motion to request clarification regarding the applicability of the Standards of Conduct and to highlight the potential adverse implications that could result from the apparent policy shift in the June 23 Order. I. EEI Seeks Clarification with Respect to the Non-public Transmission Information Subject to the Standards of Conduct EEI seeks clarification with respect to the applicability of the Standards of Conduct to the information proposed to be shared among the parties under the JDA. More specifically, EEI respectfully requests that the Commission clearly identify what information it deems to be nonpublic transmission information. 8 The June 23 Order states that the Joint Dispatch Agreement also requires the Parties to Grant PSCo s merchant function access to non-public information that, under the Standards of Conduct, should be restricted to PSCo s transmission function. 9 Unfortunately, the June 23 Order provides no further explanation or insight into what non-public transmission information has raised these concerns for the Commission. 10 For EEI members, such ambiguity has the potential to create confusion with respect to their own processes as well as compliance risk moving forward. 7 June 23, Order at PP 100-101. 8 Id. at P 101. 9 Id. at P 100. 10 Id. at P 101. 4
II. EEI Seeks Clarification that the June 23 Order is Not Intended to Broaden the Scope of Communications to which the Standards of Conduct Apply EEI respectfully requests clarification that the June 23 Order does not broaden the scope of information to which the Standards of Conduct apply. As discussed below, it is EEI s understanding that unit economics and generation dispatch information are not transmission function information per se and as a result generally fall outside the scope of the Standards of Conduct. 11 Given Xcel Energy Services Inc. s ( XES contention that the information at issue is unit economics and generation dispatch information, EEI requests the instant clarification due to concerns that the June 23 Order potentially broadens the scope of information that is subject to the Standards of Conduct. 12 As aptly set forth by the Commission, the Standards of Conduct are intended to prevent access by a transmission provider s merchant function to non-public transmission information. 13 The Standards of Conduct define transmission function information as any information relating to the planning, directing, organizing or carrying out of day-to-day transmission operations, including the granting and denying of transmission service requests. 14 In a series of orders beginning in 2008, the Commission sought comments and established a Final Rule on Standards of Conduct for Transmission Providers, which provide important guidance on this subject. 15 As part of that process and among other issues, EEI sought, and was granted, clarification that information needed to make economic decisions affecting generation dispatch, such as unit commitment, is not non-public transmission function 11 Standards of Conduct for Transmission Providers, order on reh g, 129 FERC 61,043, at P 132 (Order No. 717- A (2008. 12 Request for Rehearing of Public Service Company of Colorado, Docket Nos. ER15-237-003 et. al., pp. 8-13. 13 June 23, Order at PP 100-101. 14 18 C.F.R. 358.3(h; see also, 18 C.F.R. 358.3(j. 15 See generally, Standards of Conduct for Transmission Providers, Order No. 717, FERC Stats. & Regs. 31,280 (2008; order on reh g, Order No. 717-A (2008, 129 FERC 61,043, order on reh g, Order No. 717-B, 129 FERC 61,123 (2009, order on reh g, Order No. 717-C, 131 61, 045 (2010, order on reh g, Order No 717-D, 135 FERC 61,017 (2011. 5
information per se. 16 The Commission further clarified that unit economics affecting the dispatch of generating units also falls outside of the scope of non-public transmission function information. 17 As a result, it is EEI s belief that such information would continue to fall outside the scope of the Standards of Conduct. As discussed above, EEI is requesting clarification because the June 23 Order is unclear as to what information the Commission deems to be non-public transmission information in this matter. EEI understands that it is XES s position that the information at issue falls into the category of unit economics and generation dispatch information. 18 Given the history and importance of this issue, EEI is concerned that the June 23 Order represents a modification to the scope of information that is subject to the Standards of Conduct without explanation or rationale. EEI believes that it is only appropriate to provide XES and the industry a chance to address that rationale as part of this proceeding. 16 Order No. 717-A, at P 132. 17 Id. at 136. 18 Request for Rehearing of Public Service Company of Colorado, Docket Nos. ER15-237-003 et. al., pp. 8-13. 6
CONCLUSION Wherefore EEI respectfully requests that the Commission grant the clarifications requested above. Respectfully submitted, /s/ Adam L. Benshoff Aryeh Fishman Associate General Counsel Adam L. Benshoff Senior Attorney Edison Electric Institute 701 Pennsylvania Ave, N.W. Washington, D.C. 20004 Phone: 202-508-5019 7
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document upon each person designated on the official service list compiled by the Secretary in this proceeding. Dated at Washington, D.C. this 18 th day of August, 2015. Respectfully Submitted, /s/nate Chumley Nate Chumley Edison Electric Institute 701 Pennsylvania Avenue, NW Washington, D.C. 20004-2696 (202 508-5479