California Community Choice Association ("CalCCA") submitted an Application for Rehearing of Resolution E-5258 on May 30, 2023. Resolution E-5258 sets January 1, 2025, as the earliest possible effective date for the expansions of Central Coast Community Energy ("CCCE") and East Bay Community Energy ("EBCE"), on the basis that CCCE and EBCE have each failed in the past to procure the required amount of capacity based on their existing customer load as demonstrated by numerous citations issued for violations of the Commission’s Resource Adequacy ("RA") program. The Resolution states that these procurement failures coincided with periods of extreme electricity scarcity, including in 2021 and 2022, and ultimately contributed to impermissible cost shifting from the CCAs to customers of IOUs. CalCCA's Application highlights extensive legal error in Resolution E-5258, including that the Commission exceeded its jurisdiction and statutory authority, applied RA enforcement in a discriminatory manner, and issued key findings without substantial evidence. CalCCA also states that the Commission violated Constitutional due process by adopting new policy on cost shifting and RA penalties without gaining input from interested parties, enforcing an RA policy currently being considered in the RA rulemaking, failing to utilize the enforcement mechanisms prescribed by Resolution M-4846, retroactively applying a new regulation to the CCAs adopted after the CCA Implementation Plans were filed, and imposing an additional, double penalty for RA noncompliance on the CCAs through the suspension of the CCAs’ expansion plans after the CCAs already paid the penalties assessed for noncompliance. For these reasons, CalCCA finds that the Resolution is an abuse of discretion and urges the Commission to grant rehearing to correct these legal errors.
SPECIFICATION OF ERROR
× Resolution E-5258 exceeds the Commission’s limited jurisdiction over CCA implementation plans and fails to act as required by Public Utilities Code Section 366.2 by 1) failing to provide a firm “earliest possible date” for the launch of EBCE’s expansion to the City of Stockton and CCCE’s expansion to the City of Atascadero, and 2) basing the “earliest possible date” only on the impact on a utility’s “annual procurement plan” as required by Section 366.2.
× The Resolution exceeds the Commission’s limited jurisdiction to address cost shifts and fails to act in the manner required by law by adopting a “new and distinct” cost shift policy that does not comply with Section 366.2 and Section 366.3.
× The Commission fails to act as required by Section 380(e) by applying RA enforcement in a discriminatory manner.
× The Resolution does not contain findings that support the order; it is devoid of any findings that 1) RA noncompliance caused increased reliability costs and shifted those costs to the IOUs' bundled customers or 2) permitting the CCAs to expand service on January 1, 2024 will cause increased reliability costs and shift those costs to the investor-owned utilities’ bundled customers; consequently the Resolution constitutes an abuse of discretion.
× The Commission fails to support its findings with substantial evidence demonstrating that the CCAs’ RA noncompliance caused increased reliability costs and shifted those costs to the IOUs' bundled customers and, consequently the Resolution constitutes an abuse of discretion.
× The Commission denies affected parties due process by not providing notice and an opportunity to be heard, and thereby fails to proceed in accordance with law, by adopting material, new policy affecting important issues – RA penalties and cost-shifting – in the context of an enforcement action against particular parties.
× The Commission prematurely enforces a pending regulation currently being considered in the RA rulemaking, thereby denying the CCAs’ due process to participate in the enactment of such regulation;
× The Commission fails to act in a manner consistent with its own enforcement procedures, thereby failing to proceed in the manner required by law and denying parties’ due process.
× The Commission’s retroactive application of a new regulation to the CCAs’ pending implementation plans is unlawful and contravenes due process.
× The Resolution imposes a double penalty for RA noncompliance on the CCAs through the suspension of the CCAs’ expansion plans after the CCAs already paid the penalties assessed for RA noncompliance.
