United States of America Before the Federal Energy Regulatory Commission
ISO New England Inc. and New England Power Pool Participants Committee
Docket No. ER14-1639-005
MOTION FOR LEAVE TO ANSWER AND LIMITED ANSWER of
the New England States Committee on Electricity

Pursuant to Rules 212 and 213 of the Federal Energy Regulatory Commission’s (“Commission” or “FERC”) Rules of Practice and Procedure, 18 C.F.R. §§ 385.212 and 385.213 (2015), the New England States Committee on Electricity (“NESCOE”)[1] hereby files this Motion for Leave to Answer and Answer to the Request for Rehearing filed by the NextEra Energy Resources, LLC (“NextEra”), the PSEG Companies (“PSEG”), and the NRG Companies (“NRG”) (collectively, the “Litigants”) on May 9, 2016 in the above captioned proceeding (the “Rehearing Request”).  The Rehearing Request challenges the Commission’s April 8, 2016 Order on Remand, 155 FERC ¶ 61,023 (2016) (the “Remand Order”), where the Commission affirmed “that the renewables exemption from the minimum offer price rule is just and reasonable, and not unduly discriminatory or preferential.”[2]  NESCOE provides this Limited Answer to clarify certain factual assertions in the Rehearing Request.[3]

More generally, NESCOE is disappointed that the Litigants persist in challenging a reasonable and narrowly drawn market rule designed to protect consumers against an over-procurement of capacity.  The exemption garnered broad regional support, from a cross-section of industry, as part of a package of interrelated changes implementing a system-wide demand curve.  It reflects a number of trade-offs among parties, and the final language reflects the culmination of significant collaborative work among NESCOE, ISO-NE, market participants, and other stakeholders.  As the Commission stated, the exemption strikes “an appropriate balance of competing interests[.]”[4]

The New England states support the wholesale markets and, where possible, are interested in implementing state energy and environmental policies through mechanisms working within those markets.  At the same time, many states have a legal—indeed, a constitutional—obligation to execute their energy and environmental laws.  That is common knowledge.  Indeed, NextEra recently touted for investors revenue opportunities related in part to continued state actions supporting renewable energy: “. . . we continue to believe that the regulatory trend in North America will continue to be towards supporting more renewable energy.  We expect resource planning activities for increasingly stringent environmental rules and potential carbon emissions regulations (whether at the state or federal level) will help further support demand. For these reasons, we expect some of our potential customers to be motivated not only by the economics of new renewables, but also by the consideration of current or potential future environmental compliance obligations . . .  .”[5]

Consequently, along with constructive participants in the stakeholder process, states have sought to identify market mechanisms that can reasonably accommodate state policies.  As NESCOE has stated in the past, a market that fails to recognize resources developed pursuant to state requirements will not be sustainable in the long-term.[6]   NESCOE believes that there is an increasing recognition of this fact among stakeholders more broadly, as well as a shared desire in New England to develop workable solutions in the nearest possible term.  NESCOE is committed to working with those generating entities and other regional market participants who recognize the need to reasonably accommodate policies in markets rather than allocate resources toward litigating every attempt to strike a sensible balance.[7]

1. MOTION FOR LEAVE TO ANSWER

Answers to rehearing requests are generally prohibited under Rule 713(d)(1) of the Commission’s Rules of Practice and Procedure.[8]  However, the Commission has exercised discretion in accepting such answers if they assist the Commission in its decision-making process.[9]  NESCOE’s Answer meets this standard.  The Answer clarifies certain factual assertions in the Rehearing Request and, therefore, provides the Commission with a more complete record upon which to base its determination.  Accordingly, NESCOE respectfully requests that the Commission accept this Answer.

1. ANSWER

The Litigants include various factual assertions in the Rehearing Request, a number of which require clarification:

• The Litigants claim that “the Commission’s suggestion that the exemption is not intended to lower prices makes no sense” and that “it is beyond dispute that the intent of the renewable exemption is purely economic.”[10]
  • Clarification: The primary purpose of the renewables exemption is economic. However, the objective is not to suppress prices but to achieve “the Commission’s statutory mandate by protecting consumers from paying for redundant capacity.”[11]  As ISO-NE has stated, “ignoring these [renewable] resources would be costly and inefficient.”[12]

• The Litigants assert that the exemption “creates new ‘missing money,’ and . . . this new missing money renders the capacity market incapable of ‘attract[ing] and retain[ing] sufficient capacity to maintain ISO-NE’s Installed Capacity Requirement.’”[13]
  • Clarification: The Litigants’ assertion contradicts their trade organization, the New England Power Generators Association (“NEPGA”), which has stated that “[t]he open, competitive market in New England is . . .  driving investments to keep power supplies in the region competitively priced and reliable.”[14]  NEPGA also recently expounded on the high level of competition in the Forward Capacity Market (“FCM”), stating that “[o]lder, more expensive methods for generating electricity are being driven from the market by more cost-effective, cleaner and efficient power stations.”^[15]  NEPGA has additionally pointed to the competitive environment in FCA 10, stating that “nearly 1,500 MW of new plants cleared in the” last auction and that there are “nearly 7,000 MW of new plants competing to provide new capacity to the region.”^[16]  PSEG likewise underscored to investors just last month that New England currently presents growth investment opportunities.[17]  In fact, two of the three companies are currently investing in new resources in New England: (1) PSEG at over $500 million in connection with a new 485 MW power plant in Connecticut,[18] and (2) NRG’s 333 MW natural gas-fired resource that recently cleared in FCA 10.[19]  The FCM as it exists today, with the renewables exemption in place, is unquestionably attracting new investments.

In addition, the assertion that the FCM would be unable to attract or retain capacity is not borne out in the two FCAs, in which the renewables exemption has been applied.  For FCA 9, ISO-NE concluded that the auction “attracted significant competition” and secured “more than 1,400 megawatts of new capacity,” including three new power plants at a combined 1,060 MW.[20]  These resources helped the region make up shortfalls from generation retirements.[21]  Similarly, for FCA 10, “40,131 MW of resources, including 6,700 MW of new resources, qualified to compete in the auction to provide the 34,151 MW Installed Capacity Requirement (ICR) for 2019-2020.”[22]  ISO-NE’s Chief Executive Officer stated that “[c]ompetition was robust” in the auction.[23]  In fact, ISO-NE recently characterized the last two auctions as reflecting “a surge of recent new investment in the region,” explaining that “[i]n the last two auctions alone . . . the FCA cleared multiple new generating facilities, replaced close to 10 percent of the generating fleet, and the Interconnection Queue for new capacity has more than doubled (from 6 GW to over 12 GW) since 2014.”[24]

Furthermore, regarding the upcoming FCA 11, following the April 22, 2016 close of the show of interest window, ISO-NE’s Chief Operating Officer recently stated that there was similar “robust” interest.[25]  Lastly, retirement de-list bids for FCA 11 were a meager 27.262 MW,[26] hardly evidence that existing suppliers deem the exemption as a reason to leave the New England marketplace.

• The Litigants argue that “the Commission further errs because it provides generators no ability to recover the ‘new missing money’”. . . and that “[c]learing prices will be lower than they would be without the renewables’ price suppression . . .  .”[27]  The Litigants repeat these assertions at several later points in the Rehearing Request.[28]
  • Clarification: The Litigants do not and cannot know as a matter of fact that clearing prices would be lower because of the exemption. The Litigants’ statement that the exemption “will suppress prices” is highly questionable.[29] In fact, it is doubtful that prices would have changed in FCA10 due to the objective of the capacity clearing engine to maximize social surplus.  System conditions, location, type of new entrants, volume of new entrants, retirements, auction clearing rules, and numerous other variables (g., natural gas price impacts in the energy market) are drivers of the clearing price.  The Litigants neglect to discuss that it is also possible for a resource to over-recover costs if a bid accounts for lower expected energy rents than materialize in the future.  Moreover, in their focus on maintaining the status quo, the Litigants fail to consider the consequence of eliminating the exemption, which the Commission has a statutory obligation to account for: absent the exemption, there would be no protection for consumers made to over-buy capacity.

• The Litigants criticize the Commission for “fail[ing] to acknowledge” that thousands of MW of coal and oil resources are at risk “in large part because of price formation concerns.”[30]
  • Clarification: Such blame is misplaced. It ignores markets forces that are driving retirements.  As NRG told investors recently, its east region, which includes New England, has “[c]apacity markets better reflecting true economics” and that “[u]neconomic units continue to retire.”[31]  NextEra told investors that “[p]otential coal-to-renewables switching [is] driven by low natural gas prices.”[32]  NextEra’s statements to investors similarly indicate its view of what is causing coal retirements, and it has nothing to do with the exemption: “Lower natural gas prices and environmental regulation are expected to continue to pressure existing coal facilities, and renewables are well situated as the shift away from coal continues.”[33]

ISO-NE’s Internal Market Monitor has made similar statements pointing to natural gas—and not the renewables exemption—as the driver for retirements, stating, for example, that “aging and declining fleet of oil- and coal-fired generators . . . are increasingly being displaced by more efficient gas-fired generators.”[34]  Indeed, more than 3,000 MW of coal, oil, and nuclear resources announced retirements before the exemption was even implemented in FCA 9.[35]  These retirements could not have had any connection to the renewables exemption.  With the same market forces at play in New England, any causal connection between resource retirements and the approximately 72 MW of renewables clearing under the exemption is speculative at best.[36]

Moreover, price formation has been a significant focus of the Commission, with a number of potential reforms under active consideration and other changes expected.[37]

• The Rehearing Request adds the resources that qualified under the renewable exemption for FCA 9 (79 MW) to the resources that cleared in FCA 10 under the exemption to produce what the Litigants apparently claim to be the total MW that have cleared under the exemption for these two auctions, 150 MW. The Rehearing Request then states that “450 MW are now eligible for the renewable exemption in FCA 11.”[38]
  • Clarification: These statements warrant correction. To qualify for the auction is not the same as clearing the auction and, in fact, only 72 MW of resources have actually cleared in total under the exemption for FCA 9 and FCA 10, making approximately 528 MW currently available for the exemption.[39]  To state it another way, with a procurement of 35,567 MW for the 2019-2020 period (FCA 10), the 72 MW that have cleared under the exemption compose roughly .2% of the resources procured.

• The Litigants claim “there is compelling evidence that” state policies driving 1,600 MW of solar resources into the market will continue to increase price suppression and further state that “4,000 MW of wind is sitting in the ISO-NE interconnection queue waiting to be built.”[40]
  • Clarification: These numbers provide dramatic effect. However, the 4,000 MW of wind in the queue must be viewed in the context of a 67% MW attrition rate for all projects since the queue has been operational.[41] In addition, as the Commission has noted, because of “the intermittent energy output of wind and solar resources, the capacity value of these resources is only a fraction of the nameplate capacity.”[42]  The Commission additionally explains that “ISO-NE qualifies wind and solar resources for capacity market participation at approximately 20 percent of their nameplate capacity” and, accordingly, “at least 1,000 MW of renewable resources” would need to clear to use up the renewables exemption.[43]  Finally, irrespective of the growth rate of renewable resources entering the market, as discussed above, the exemption is narrowly tailored and reflects a balance between accommodating state policies and market impacts.  Among the limitations in this market rule, the exemption is capped at 200 MW per year, is further restricted to resources defined as RPS-eligible as of January 1, 2014, and must “receive an out-of-market revenue source supported by a state- or federally-regulated rate, charge or other regulated cost recovery mechanism[.]”[44]  In effect, for the Litigants’ inference to be true at present, states would have to contract with every wind resource in the interconnection queue to enable those MW to qualify for the exemption.

• In citing to a likely increase in the coming years in amount of new renewable resources entering the market, the Rehearing Request then goes on to state that “the fact that I am currently only driving 75 mph in no way justifies a 200 mph speed limit . . . .”[45]
  • Clarification: The question of whether the renewables exemption should be expanded is not before the Commission.  As explained above, the exemption is a narrowly tailored to satisfy specific statutory requirements.  It has no relationship to the broad range of state public policy requirements that have to be implemented as a matter of law over time.  The region needs to sort out mechanisms to accommodate those and will bring forward proposals for the Commission’s consideration as appropriate.  Parenthetically, if the Litigants consider resources equaling .2% of the total amount procured to be 75 mph, their speedometer is broken.

• The Litigants state that “[n]ow more than ever it is important for New England to get the market right going forward due to the significant challenges it faces,” citing to retirements and difficulties with gas-electric coordination.[46]
  • Clarification: NESCOE agrees. 
The region has to identify workable solutions to accommodate the requirements of state laws rather than expend resources on protracted litigation that, should the Litigants prevail, will only serve to undermine the long-term sustainability of the market.

• Using a hypothetical example to illustrate its missing money claim, the Litigants state that if 200 MW of renewables enter the market under the exemption, “the market will clear at zero.”[47]
  • Clarification: The example fails to take into account the price protection of the sloped demand curve as illustrated in Table 1 of the Rehearing Request, where the price does not drop to zero.[48] As noted above, there are many variables in determining the auction clearing price.  In fact, adjusting the Litigants’ example to reflect 225 MW at $6/kW-month instead of 125 MW at $6/kW-month, the clearing price would be $6/kW-month with or without the exemption (using the simple hypothetical example) and there would be no new “missing money.”

• The Litigants suggest that a “competitive market” is one where the exemption does not exist and claim that “no one can compete with zero-priced entry” and that, with the exemption in place, there will be a “limit[ed] or “largely diminish[ed] . . . incentive for private developer to develop projects for the FCM.”[49]
• Clarification: This outlying view, which is contradicted by the facts in FCAs 9 and 10, the show of interest for FCA 11, and the statements and actions of the Litigants themselves and their trade organization, should not be given any weight. Both FCAs 9 and 10 reflected competitive outcomes and attracted significant interest from new resources.[50]  The next auction, FCA 11, has also attracted robust interest.[51]  Simply stated, private developers have not been deterred by the existence of the renewables exemption or the prospect of a detrimental effect on going-forward prices.  In fact, as noted above, competition has been strong and prices have reflected that competition.

• The Rehearing Request labels the renewables exemption “a clumsy and unreasonable way of attempting” to encourage renewable resource development.[52] The Litigants also state that “the renewables exemption will send a clear signal to build up to 200 MW of renewables per year” and “[t]here is no justification in theory or practice to assert that market participants will ignore this signal.”[53] 
  • Clarification: The exemption itself does not encourage renewable resource development. Rather, it is a mechanism to ensure that the capacity associated with certain resources built pursuant to state renewable energy requirements can clear in the capacity market, thereby preventing the over-procurement of capacity. The Litigants’ statements regarding the “signal” to build have been proven to be false and, instead, underscore the Litigants’ unwillingness to recognize the limited nature of the exemption and the function of state laws.  NESCOE agrees that the exemption is imperfect.  The resulting proposal was broadly supported by ISO-NE, the states, and a cross-section of industry, with trade-offs and compromises reflected in the final language.  The exemption is narrow and modest and designed to accommodate only one category of state law requirements: renewable portfolio standards.  There are certainly other approaches to integrating states’ renewable policies into the market, such as PJM’s more limited application of its minimum offer price rule, which is only applied to new gas-fired resources.  Going forward, and in the near-term, some states will indeed require additional appropriate and cost-effective market design changes that balance competitive market outcomes with the need to integrate state policy objectives.  NESCOE looks forward to working with market participants and others in the region to implement such market mechanisms.

• To the extent the Litigants imply that state officials pass laws encouraging renewable resource development to manipulate prices,[54] this blanket charge is recklessly inflammatory and unsubstantiated.

• CONCLUSION

For the reasons stated herein, NESCOE respectfully requests that the Commission (i) grant its Motion for Leave to Answer, and (ii) consider its Limited Answer in this proceeding.

Respectfully submitted,

 /s/ Jason Marshall
Jason Marshall
General Counsel
New England States Committee on Electricity
655 Longmeadow Street
Longmeadow, MA  01106
Tel: (617) 913-0342
Email: jasonmarshall@nescoe.com

Date: June 3, 2016