California Legislators Revisit Partial Deregulation of Electricity

 

The San Diego Union-Tribune - March 21, 2004

Assembly Speaker Fabian Núñez has introduced legislation he says will spark power plant construction and protect small customers.

After spending $50 billion on its botched effort to deregulate electricity markets, California is back to debating the value of loosening power regulation.

To be sure, the blowup of 2000-2001 vaporized public support for complete deregulation.

But under pressure from large electricity users and independent power plant builders, the Legislature is considering several proposals for deregulating up to 30 percent of the state's power market.

Proponents of the partial market loosening are quick to emphasize that their plans would protect most residential and small-business customers with rates and service regulated by the California Public Utilities Commission.

But they propose allowing larger customers to sign contracts with unregulated electric suppliers, so-called direct access agreements.

Lawmakers who support partial deregulation believe that freeing these customers for direct access would provide an incentive to independent energy companies to build badly needed power plants.

And the independent providers, deregulation advocates say, would also provide healthy competition to utilities and drive down rates for all.

Under state law, new unregulated private electricity deals are banned until 2013. That's when the last of the overpriced electricity contracts signed by California during the crisis expire.

Legislators feared that allowing large power users to make cheap power deals would burden those who pay for crisis costs as part of their monthly utility bills.

But state law allows direct access deals signed before the ban to continue.

Within San Diego Gas & Electric's territory, for example, about 18 percent of the electricity is provided under these unregulated contracts.

Those direct access customers are supposed to pay exit fees to cover their share of crisis costs, but those costs are capped and have not been fully paid.

Advocates of partial deregulation -- known in industry jargon as a core/non-core market structure -- promise that their new plans wouldn't allow big customers to escape their share of crisis costs or the overhead of maintaining the state transmission and distribution system.

"My first objective is to protect core customers," said Assembly Speaker Fabian Nunez, D-Los Angeles, sponsor of the most recent partial deregulation bill.

But the assurances from Nunez and others fail to mollify consumer advocates.

They liken guarantees of consumer protection under partial deregulation as akin to assurances of being careful about unprotected sex.

Allowing partial deregulation, they say, is bound to save big customers money at the expense of smaller customers.

"I don't believe you can prevent cost shifting," said Michael Florio, senior attorney for The Utility Reform Network, a consumer advocacy group in San Francisco.

He says that polls show overwhelming public support for full regulation of the electric industry, similar to the type in place for most of the last century. But there's little evidence of that sentiment in the Legislature.

The strongest evidence of the renewed tilt to partial deregulation is the fact that the latest proposal comes from the Assembly speaker himself.

Nunez says he's concerned about projections of tight state electricity supply as soon as 2006 and he's sensitive to complaints from utilities that the regulatory environment is so unstable they can't safely invest in new plants.

During the deregulation experiment, it was assumed that market forces would create incentive for new power plant construction, so utilities were relieved of their obligation to plan and provide adequate electricity supplies.

The PUC has since reversed course and reaffirmed the utilities' responsibility to ensure reliable service. But utility executives say they have difficulty obtaining financing in the current environment, with lenders fearing changes that could affect the ability to repay loans.

Financing problems Independent energy companies, meanwhile, say they face the same financing problem and add that recent PUC rulings leave them at a disadvantage in competing with utilities in plant building.

Large power users, for their part, believe they could get cheaper power deals if they were freed from the requirement of getting service from their local utilities.

Nunez's bill, AB 2006, would allow the 30 percent of the market that includes larger power consumers to sign supply contracts with unregulated electricity suppliers. Smaller customers would remain protected by the PUC, he says.

The bill, which Nunez acknowledges Southern California Edison played a significant role in crafting, guarantees that utilities can recover their plant building costs and earn profits on their investments. That should offer reassurance to lenders that utility construction loans will be repaid.

But the speaker also emphasized that under AB 2006, utilities would compete against independent energy providers for the right to build new power plants.

"If utilities can assure the PUC that the investment they make in building a generating plant is more cost-effective, they will have a leg up," said Nunez.

To assure a stable power market and allow for prudent planning by utilities, AB 2006 would require that large customers who retain local utility electricity service give five years notice of plans to depart for a private, unregulated supplier.

John Bryson, chief executive of Edison International, parent of Southern California Edison, says that provision and others within AB 2006 would provide the stability missing in the current environment, which is now largely determined by decisions from the five-member PUC.

Risks cited "In the absence of a longer-term, more-predictable environment, there are risks," said Bryson, himself a former commission member.

Chief among those risks, he said, is a lack of investment in new plants and transmission lines.

"What we see at the PUC is that decisions made by one commission can't bind future commissions," he said.

To further stabilize the "investment climate," a term favored by proponents, AB 2006 would narrow the PUC's traditional latitude to revise decisions as projects proceed.

Supporters of regulation say that involves a significant reduction of the commission's regulatory clout.

"I would not want to curtail the PUC's discretion in matters of cost recovery," said state Sen. Joseph Dunn, D-Garden Grove. His own bill -- now stalled in the Legislature -- would continue the ban on private power deals and move back to re-regulation of the electricity industry.

Assemblyman Keith Richman, R-Chatsworth, author of a competing measure for partial deregulation, says the Nunez bill is too protective of utilities in another sense. He says the bill excessively protects utilities from competition with independent power suppliers, who might develop electricity generating plants at lower cost.

In particular, Richman says, the five-year notice requirement for seeking a private power deal is far too long.

"We think a notice period of six months to one year is appropriate," said Richman.

Persistently high power rates, meanwhile, remain a drag on consumers and businesses.

A major factor Dorothy Rothrock, a vice president with the California Manufacturing & Technology Association, said high power costs have been a contributing factor in the state's steep loss of manufacturing jobs over the past three years.

But Dunn says deregulation isn't an answer because it will simply shift costs to smaller power users.

He and consumer advocates say large users want private deals precisely because it gets them out from under the high costs that all now bear as a result of the market meltdown during the last deregulation attempt, as well as the high overhead costs needed to ensure adequate reserves.

Dunn says all deregulation efforts face an uphill battle in the Legislature. With limited prospects for legislative action, he says, the debate could shift to the ballot box by November.

Edison could try a ballot initiative should its bill fail in the Legislature, he said, although an Edison spokeswoman says no initiative measure is now planned.

Dunn added that advocates of electricity re-regulation are considering an initiative of their own, though costs are daunting.

"The polls say it would pass overwhelmingly, but getting the resources together is difficult," Dunn said. "Just gathering the signatures to get it on the ballot will require $3 million to $5 million. And the proponents of a re-regulation measure would have to be able to put at least $10 million on the table because the resources in opposition would unite and spend at least $50 million."

But deregulation opponents say they have a higher level of resolve than ever before.

"We are a lot smarter than we were back in the 1990s when deregulation was just a theory and had a lot of pizzazz to it," said Florio of TURN. "Everyone who was skeptical of deregulation in 1995 realizes we have to fight and not let this happen again."

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(c) 2004, The San Diego Union-Tribune. Distributed by Knight Ridder/Tribune Business News.