Alabama Public Service Commission
Orders
|
ALABAMA
POWER COMPANY, Petitioner |
PETITION: For approval of Rate Rider RE (“Renewable
Energy”) INFORMAL DOCKET U-4485 |
ORDER
BY THE COMMISSION:
I. Introduction and Background
On March 26, 2003, Alabama Power Company (“Alabama
Power”) filed with the Commission a proposed new residential rate rider called
Rate Rider RE (also referred to herein as “Renewable Energy” or “RE”).[1] Said filing was made pursuant to §37-1-81 of
the Code of Alabama, 1975, as
amended.
The proposed Rate Rider RE would provide an option for
residential customers who want to support the generation of electric power from
renewable resources. Customers
subscribing to RE would purchase an “energy block” equivalent to 100 kwh per month
and pay a monthly adder of $6.00 per block.
This monthly amount would be in addition to the rates, terms, and
conditions of other rate schedules under which the customers in question are
already being served. Customers would be
able to elect to purchase more than one block, but total participation in the
program would be limited to 25,500 blocks per year, at present. Subscriptions
to RE would be for an initial term of 12 months with an automatic renewal
provision.
II. The Intervention of the Southern Alliance
for Clean Energy
On April 22, 2003, the Southern
Alliance for Clean Energy (“Southern Alliance”) filed a Petition for Leave to
Intervene in the RE filing of Alabama Power.
Southern Alliance represents that it is a nonprofit Tennessee
corporation whose purposes include the performance of educational research and
programs concerning the environment, public health, and economic impacts of
energy use and policy in the Southeast.
Southern Alliance maintains that its purposes also include advocacy for
energy plans, policies and systems that best serve the environmental, public
health and economic interests of the communities in the Southeast.
Southern Alliance asserts that some
of its members are located in the State of Alabama and include ratepayers of
Alabama Power. Southern Alliance
represents that it and its members have a financial interest in the rates they
pay for electricity, as well as a direct interest in the methods by which the
Commission establishes policy and rates.
Southern Alliance further represents that it and its members have a
direct interest in rate design and other policies as they affect renewable
energy and the economic vitality and environmental health of the State of
Alabama.
Southern Alliance contends that
because its members in Alabama who are Alabama Power customers would have the
opportunity to purchase power pursuant to the proposed Rate Rider RE, Southern
Alliance and its membership are “affected” by the proposed Rate Rider RE and
have a right to intervene. In fact, Southern
Alliance maintains that its Alabama members are among the most likely
purchasers and potential supporters of Rate Rider RE.
Southern Alliance also represents
that it and its members are afforded a right to intervene pursuant to the PURPA[2] guidelines found at 16
U.S.C. §2631 which provide in part that “…any electric consumer of an affected
utility may intervene and participate as a matter of right in any ratemaking
proceeding or other appropriate regulatory proceeding relating to rates or rate
design which is conducted by a state regulatory authority…” Southern Alliance asserts that Rate Rider RE
clearly involves rate issues which would justify the intervention of its
membership pursuant to the PURPA guidelines.
Southern Alliance also alleges that
Alabama Power has not provided sufficient information concerning its Rate Rider
RE to allow the Commission to determine the reasonableness of the Rider. Southern Alliance represents that its
intervention would allow for the gathering of more information from Alabama
Power through discovery requests and other means.
Southern Alliance maintains that it
has particular expertise concerning green power pricing programs and would be
able to provide the Commission with information that would be helpful in the
Commission’s consideration of Alabama Power’s Rate Rider RE. Southern Alliance represents that it has been
the primary public interest organization in the Southeast promoting and
facilitating Center for Resource Solutions (“CRS”) green power pricing accreditation
criteria processes. Southern Alliance
asserts that CRS is the national leader in green power accreditation and notes
that CRS accreditation criteria has been adopted in the Southeastern states of
Georgia, North Carolina, South Carolina and Tennessee. Southern Alliance explains that the CRS
accreditation criteria include environmental as well as consumer protection
criteria. Southern Alliance represents
that one consumer protection concern addressed by the criteria is the question
of whether utilities generating revenue through a green power pricing program
are doing so with green power that has already been acquired with other
revenue.
III. The Opposition of Alabama Power to
Southern Alliance’s Intervention
On May 1, 2003, Alabama Power
submitted its objection to the Petition to Intervene filed by Southern
Alliance. Alabama Power points out that
the right to intervene and become a party to a proceeding before the Commission
is set forth in Code §37-1-87 which
provides in pertinent part that “[e]very person, firm, corporation, co-partnership,
association, or organization affected thereby may by petition intervene and
become a party to any proceeding before the [C]ommission.” Alabama Power notes that pursuant to the
longstanding case law in Alabama, a person or entity seeking to intervene in a
proceeding before the Commission must demonstrate a personal interest in the
subject matter of the proceeding and not merely a public interest.[3]
Alabama Power also points out that
in prior proceedings before the Commission, the scope of Code §37-1-87 has been considered in the context of petitions
similar to that filed by Southern Alliance in the present proceeding. Alabama Power notes that the Commission long
ago determined that entities such as Southern Alliance could intervene on
behalf of definitively named customers of a utility, but not on behalf of
unnamed “similarly situated” individuals.[4] According to Alabama Power, the Commission
also determined that the Commission could not allow any entity to represent
other persons, entities, or groups of persons before the Commission without
express statutory authority to do so.[5]
Given the aforementioned precedent
of the Commission, Alabama Power maintains that the petition filed by Southern
Alliance fails to satisfy the requirements for intervention under Alabama
law. Alabama Power argues that the
petition of Southern Alliance fails to demonstrate that the unnamed members of
its organization who are alleged to be customers of Alabama Power are even
aware of the actions of Southern Alliance.
Alabama Power further asserts that even if the unnamed members of
Southern Alliance are identified, Southern Alliance can not act on their behalf
in a representative capacity and such individuals will have to seek intervenor
status on an individual basis. Alabama
Power also notes that Rate RE is entirely optional and thus no retail customer
is directly affected by its terms and conditions unless they affirmatively
choose to subscribe to said rate.
Alabama Power also addresses
Southern Alliance’s claim to a federal statutory right of intervention pursuant
to PURPA. Alabama Power maintains that
the PURPA provision referenced by Southern Alliance has been quoted out of
context and does not stand for the suggested proposition that federal law
affords a right of intervention in any and all state regulatory proceedings
related to rates or rate design. Alabama
Power asserts that the field of operation of the PURPA statute cited by
Southern Alliance is limited to the initiation of, and participation in, state
consideration of the various standards set forth in Subtitle B of PURPA[6] which were addressed by
this Commission years ago in Docket 17752.
Alabama Power maintains that even if the referenced provision is still
viable, Southern Alliance is not an “electric consumer” of Alabama Power as
specifically required thereunder, and thus Southern Alliance’s PURPA-based
argument is misplaced.
Alabama Power notes that despite its
objections to Southern Alliance’s Petition to Intervene, the company is
certainly willing to meet with representatives of Southern Alliance to consider
their comments and suggestions regarding Rate Rider RE. Alabama Power again asserts, however, that
Southern Alliance’s interest in Rate Rider RE is not sufficient to support a
formal intervention under Alabama law.
VI. The Attorney
General of Alabama’s Petition to Intervene
On May 5, 2003, the Attorney General of Alabama (the
“Attorney General”) filed a Petition to Intervene in this cause. The Attorney General did not raise any
substantive issues concerning Alabama Power’s Rate Rider RE, but did express
concerns regarding the Commission’s interpretation of Code §37-1-87 and the standards established by the Commission for
determining when entities or individuals interested in intervening in Commission
proceedings are “affected” thereby. The
Attorney General urged the Commission to institute proceedings to reassess and clarify
the Commission’s position on this issue in light of the current regulatory
environment.
V. The Petition to
Intervene of the Alabama Environmental Council, Inc.
Following the conclusion of the May 6, 2003 monthly meeting
of the Commission at which this matter was formally addressed, the Commission
received a Petition to Intervene in this matter from the Alabama Environmental
Council, Inc. (“AEC”). AEC raised
essentially the same issues that were raised by Southern Alliance, but further alleged
that AEC and its members are ratepayers of Alabama Power.
VI. Discussion
Alabama Power is correct in pointing
out that the Supreme Court of Alabama has long held that a party attempting to
intervene pursuant to Code §37-1-87
must demonstrate that it has a “personal interest in the subject matter, and
not a mere public interest in common with the general public.”[7] In the present case, Southern Alliance
maintains that it has Alabama members who are customers of Alabama Power, but
none of those individuals are identified.
Further, it is unclear as to whether those Alabama consumers who are
allegedly members of Southern Alliance have knowledge of Southern Alliance’s
intervention in Alabama Power’s Rate Rider RE.
Given those fatal deficiencies in Southern Alliance’s Petition to
Intervene, a ruling granting Southern Alliance’s Petition would be contrary to
Alabama law as well as the precedent of this Commission as cited by Alabama
Power. Alabama Power’s arguments in this
regard are further supported by the fact that Rate Rider RE is a purely
optional rider requiring the affirmative election of Alabama Power customers. We accordingly conclude that Southern
Alliance failed to satisfactorily demonstrate that it would be “affected” by
the proposed Rate Rider RE as required by Code
§37-1-87.
With respect to Southern Alliance’s
claim of a federal right to intervention, Alabama Power is correct in pointing
out that the matters under consideration herein are far afield from the
considerations envisioned by the requirements of PURPA. Further, it has not been conclusively
established that Southern Alliance or any of its members are customers of Alabama
Power. Accordingly, there does not
appear to be a federal right to intervention in this proceeding as claimed by
Southern Alliance.
It should also be noted that
Southern Alliance did not specifically request that a hearing be established to
consider Rate Rider RE. Even if such a
specific request had been made, staff from the Legal and Energy Divisions
believe that the very limited substantive arguments raised in Southern
Alliance’s Petition to Intervene have already been sufficiently considered and
addressed by the staff. In particular,
staff from the Energy Division engaged in extensive discussions with Alabama
Power regarding the costs which were relied upon by Alabama Power in
establishing the proposed rate for Rate Rider RE. Staff from the Legal and Energy Divisions has
accordingly concluded from such review that the proposed rate of $6.00 for each
100 kwh “block” of green power proposed by Alabama Power is just, reasonable
and appropriate.
Staff from the Energy Division also
considered Southern Alliance’s concern that Alabama Power could derive revenue
through its green power program from green power that has already been acquired
with other revenue. In particular, staff
from the Energy Division has recommended the development of monthly accounting
reports which will insure that the green power actually purchased by customers
of Alabama Power matches up with the amount of green power actually
provided. Additionally, fuel audits,
site visits and trending analysis of Alabama Power’s bio-mass burning records
will reasonably insure that there is no “double-dipping” by Alabama Power with
respect to its green power program. The
Legal Division concurs with the Energy Division’s conclusion that such measures
will reasonably alleviate the concerns raised by Southern Alliance with respect
to “double-dipping”.
With respect to the accounting
treatment and reporting for Rate Rider RE, we concur with recommendations of
staff from the Commission’s Energy, Legal and Advisory Divisions that the
Company shall: (1) maintain separate and readily available
accounting records; (2) provide both a
monthly and annual accounting summary of the RE program; and (3) to the extent necessary, alleviate any over
or under-recovered amounts through adjustments to the Rate Rider RE program. It is our position that such independent
treatment of Rate Rider RE will insure that said rate remains self-supported
and is not subsidized by the other ratepayers of Alabama Power. Such treatment will also insure that the
green power consumers do not subsidize other customers of Alabama Power.
With respect to the intervention of
the Attorney General of Alabama, we concur that there should be a review of the
Commission’s interpretation of Code §37-1-87
and the standards relied upon to determine when Intervenors are “affected” by
matters before the Commission. Accordingly,
we grant the Attorney General’s Petition to Intervene. We do not, however, believe that this Docket
is the appropriate vehicle to conduct an investigation into our interpretation
and implementation of Code §37-1-87.
We will establish a separate Docket to engage in that analysis.
We further note that the Petition to
Intervene filed by the Alabama Environmental Council, Inc. was not timely
filed. In fact, said Petition was not
filed with the Commission until after the formal vote approving Rate Rider RE
had already been entered. We accordingly
deny AEC’S Petition to Intervene as being untimely.
IT IS, THEREFORE, ORDERED BY THE COMMISSION, That Rate
Rider RE is hereby approved subject to the terms and conditions discussed in
more detail above. Said Rider is
accepted and approved for billings beginning May, 2003 and thereafter in
accordance with its terms.
IT IS FURTHER ORDERED BY THE COMMISSION, That the
Petition to Intervene filed by the Southern Alliance for Clean Energy is hereby
denied due to a lack of standing.
IT IS FURTHER ORDERED BY THE COMMISSION, That the
Petition to Intervene filed by the Attorney General of Alabama is hereby
granted. A separate proceeding addressing
the Commission’s interpretation and implementation of Code of Alabama, 1975 §37-1-87 will be established by the
Commission.
IT IS FURTHER ORDERED BY THE COMMISSION, That the
Petition to Intervene filed by the Alabama Environmental Council, Inc. is
hereby denied as untimely.
IT IS FURTHER ORDERED BY THE COMMISSION, That
jurisdiction in this cause is hereby retained for the issuance of any further
order or orders as may appear to be just and reasonable in the premises.
IT IS FURTHER ORDERED, That this Order shall be effective
as of the date hereof.
DONE at Montgomery, Alabama, this 12th
day of May, 2003.
|
ALABAMA PUBLIC SERVICE COMMISSION Jim Sullivan, President Jan Cook, Commissioner George C. Wallace, Jr., Commissioner |
ATTEST: A True Copy
Walter L. Thomas, Jr., Secretary
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[1] Because of its renewable nature, said
rate is occasionally referred to herein as a “green rate”.
[2] The Public Utility Regulatory
Policies Act of 1978.
[3]
[4]
[5]
[6] See 16 U.S.C.
§2621 et seq.
[7] See M.W. Smith Lumber Company.