Parties Submit Comments on Proposed Decisions Modifying RPS Confidentiality Rules

The following is a brief snapshot of opening comments:

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CalCCA

• CalCCA supports the PD as it would both expand the types of renewables portfolio standard (RPS) procurement information that the public has access to as well as shorten the current timeframes for confidential treatment of RPS procurement information.
• CalCCA supports the PD’s: (1) approach to assessing the confidentiality protections for RPS procurement data; (2) reduction of the window of confidentiality for RPS compliance forecast data and RPS net short positions from three years to two years; and (3) proposal to make a contract price publicly disclosable the sooner of 30 days after commercial online date (COD) or three years after contract approval or execution.
• The APD, however, should be rejected as its proposed six-month confidentiality protection for contract pricing fails to adequately protect market sensitive information, and disadvantages CCAs as compared to investor-owned utilities (IOUs) given that the effect of the proposal is that IOUs would get a longer period of confidentiality protection than CCAs.
• The APD’s primary justification for adopting a six-month window of confidentiality protection for contract pricing information is that: (a) there has been a sharp reduction in renewable contract prices from 2006 to 2019; (b) there was a significant increase in the number of bids and bidders between the IOUs’ 2006 solicitations and 2011 solicitations; and (c) there is a large number of renewable projects currently in the California Independent System Operator’s (CAISO’s) queue. However, these facts do not support the APD’s determination, and further, do not outweigh the clearly established fact that disclosing very recent contract price information would materially disadvantage an LSE, in particular a CCA, during ongoing negotiations.

SCE, PG&E, and SDG&E ("Joint IOUs")

• With the below changes, the Joint IOUs recommend that the Commission's adoption of the PD and rejection of the APD which would be far more detrimental to competitive markets through the release of market sensitive power procurement information that is fresh and useful to those who want to target the market for manipulation.
• The Commission should modify the PD to maintain the confidentiality of contract prices for RECs until at least one year after contract execution to avoid market disruption. No factual information in this proceeding supports the PD’s proposal to make REC contract terms public 30 days after commercial operation or contract execution.
• The PD purports to hold all retail sellers to the same standards, but imposes greater burdens on IOUs. The PD contradicts the statutory duty of requiring equal treatment of retail sellers as it relates to compliance reporting by suggesting the premature release of bid information held by an IOU that is already identified as being market-sensitive under D.06-06-066. While the release of aggregated bid and individual bid information is not contemplated for CCAs and ESPs.
• The PD errs by proposing to require public treatment of aggregated bid information once final contracts are submitted for CPUC approval. The Joint IOUs urge the Commission to extend the protection for aggregated bid information until after Commission approval of contracts from the relevant solicitation.
• The Commission should reject the proposal in the PD that the confidentiality period for market sensitive energy and capacity forecast data used in RPS compliance and procurement reporting, but also for other purposes, should be reduced from three to two years into the future and remains “one year in the past;” there is no rationale for this change and, despite language in the PD text, it impacts more than just RPS information.
• The Commission should modify Appendix 1 to align its language with the PD’s proposal to make individual bid information public three years after the close of the Renewables Portfolio Standard (RPS) solicitation to which the bids responded.

TURN

• With respect to the differences between the PD and APD, TURN supports the APD’s treatment of confidentiality for contracts involving facilities under development at the time of execution.
• The shorter six month window in the APD, as compared to the three years contemplated in the PD, is reasonable given the interest in timely disclosure. The significant disclosure delays that would result from the PD are not reasonable and would frustrate the ability of the public to have access to timely information APD would undermine competitive markets or frustrate the ability of project developers to obtain financing for new infrastructure.
• TURN has two concerns that should be addressed in any final decision. These concerns relate to the confidentiality window for contracts with an existing (operating) facility and the failure of both the PD and APD to resolve TURN’s recommendation relating to contracts that involve product or resource substitution.
• The PD proposes to sunset confidentiality protections at the earlier of three years after contract execution/approval or “30 days after commercial operation” (or the “energy delivery start date”) for contract provisions (including pricing) involving an existing operating facility. Unlike the PD, the APD does not explain whether the six month timeline applies only to the date of contract execution or is also triggered by the start of energy deliveries for contracts with existing facilities. This omission creates unnecessary ambiguity that should be clarified if the APD is adopted.
• If the APD is adopted, public disclosure should be required six months after execution/approval of contracts with newly developed facilities and 30 days after execution/approval/deliveries for any contract with an existing facility. If a contract with an existing resource does not require initial energy deliveries for more than six months after execution/approval, the six month timeline proposed in the APD should apply consistent with the “whichever comes first” trigger endorsed by the PD.
• In TURN's opening comments on the original staff proposal, TURN urged the Commission to ensure that the disclosure requirements include details on the potential for identified generation facilities to be subject to substitution and to require the public disclosure and identification of deliveries from each facility in each RPS compliance report. This attribution will allow for deliveries to be reconciled with the originating contract and permit the public to learn what specific resources are actually supplying LSEs under such contracts. Both the PD and APD reference TURN’s recommendation but neither substantively addresses or resolves it.
• The Commission should modify both the PD and APD to affirm that the details associated with resource substitution agreements, including a complete accounting for actual deliveries by individual generation facilities, is subject to the disclosure obligations outlined in the final decision and is reported in the annual RPS compliance filings.

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The following is a brief snapshot of reply comments:

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Cal Advocates

• Cal Advocates agrees with parties that the Proposed Decision and Alternate contain serious flaws and rely too heavily on historical data and traditional procurement paradigms.
• The Proposed Decision’s and Alternate’s reliance on outdated and irrelevant data or information creates serious potential harms to the Commission’s regulatory processes, the renewables market and ratepayers because it assumes that “that the market for [RPS] is currently as competitive as it was in 2011.”
• The Proposed Decision and Alternate fail to acknowledge that the Commission has indicated in several of its proceedings that an acceleration of renewable procurement may occur in the foreseeable future.
• Thus, because significant time has elapsed since the parties last commented on the record about the proposed RPS confidentiality rule changes and the issuance of the Proposed Decision and Alternate, it is reasonable to consider the changing renewable procurement needs to better understand the effects on the market and public interest.

Joint IOUs

• Both GPI and TURN support the provision of the APD that allows for early release of market sensitive information 6 months after Commission approval or 6 months after execution for contracts not requiring Commission approval. However, GPI and TURN offer no basis, much less supporting evidence, to justify their support for the APD’s early information release.
• Neither the PD nor APD have supported their respective directives with either evidence or thorough explanation why early release of market sensitive information (especially in the APD) will benefit or at least not harm customers, which is especially concerning in light of the general opposition to the APD of all 9 market participants that provided comments.
• The Joint Utilities support confidentiality rules that apply equally to all retail sellers. Shell and AReM each err in requesting that the PD and/or APD be modified to create different confidentiality rules for Electric Service Providers (ESPs). Shell and AReM offer no reasoned basis for different treatment of LSEs with regard to market sensitive information in light of the APD and PD’s correct determination that all LSEs should be treated consistently with respect to protection of market sensitive information for RPS compliance reporting.
• The PD should be modified to return to the 3-year forward period for protecting load forecast data. CalCCA errs in supporting the PD’s reduction of the confidentiality period for energy and capacity forecast data and RPS net short position from three years into the future to two years into the future. Both CalCCA and the PD err by relying merely on average time from contract execution to on-line generation as a basis for shortening the length of the confidentiality period for load forecast data. The information that they rely on shows that there is still well over 2 years (between 2.3 years and 2.6 years) average time from contract execution to on-line generation.