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August 4, 2017
NEM Western Energy Policy Summit

Please mark your calendars and plan to join us for NEM's Western Energy Policy Summit on October 23-25, 2017. The Summit will take place at Caesars Palace in Las Vegas, Nevada. An agenda is forthcoming. You may register at this hotlink.

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Committee on Energy Choice Technical Working Group Meetings

The Committee on Energy Choice has scheduled technical working group meetings for next week. Meeting materials and links for web viewing are available here.

The Technical Working Group on Open Energy Market Design & Policy: Commercial & Residential will meet on August 8th at 1PM PST. It will hear presentations on wholesale and retail market structure and provider of last resort from representatives of Valley Electric Association and Southwest Power Pool.

The Technical Working Group on Innovation, Technology & Renewable Energy will meet on August 9th at 1PM PST. It will hear presentations on renewable portfolio standards issues from representatives of Advanced Energy Economy and NRDC.

New York
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Commission Decision on Track I Proceeding

The Commission issued an Order denying an interlocutory appeal of an ALJ ruling in the Track I proceeding. Appellants had sought to halt the evidentiary hearing phase of the case or alternatively to restrict the scope of the case to exclude issues and discovery pertaining to large C&I customers and ESCO profitability. In denying the appeal, the Commission found that the Secretary's December 2016 Notice initiating the case was a "ministerial act" that satisfied the SAPA requirements for rulemaking.

Then, reflecting the addition of the new Chair and Commissioner, the decision discussed how the newly-comprised Commission expected the case to proceed. "The Commission expects that in these proceedings the parties will address disputed factual questions as to how and why ESCOs can be profitable, what constitutes a workably competitive market, whether the market can be made competitive or should be abandoned, and to what extent the experience of the C&I segment can [be] used to guide how to address the problems in the mass market.

Given the substantial change in the Commission's membership in the past few months, the Commission takes this opportunity now to make it clear that the Commission authorizes and supports such hearings. Consequently, the Commission hereby confirms that this matter is appropriately assigned to administrative law judges who are authorized to conduct a full hearing process. Going forward in these proceedings, the Commission will be facing significant decisions and it is important that the Commission have the benefit of a robust record established pursuant to a process where every participant has the opportunity to be heard. The Commission desires a record where the facts have been tested so that when the record is presented to the Commission it will be able to discern the material and substantiated facts and concentrate its efforts more directly on applying the facts to formulating policy. It is the judgment of the Commission that its needs in that regard are best met in this instance by the parties participating in an evidentiary process. The Commission asks the parties to put aside their objections now that the Commission has expressed its desires and embrace the process that has been established without further delay and distractions. The interlocutory appeal in this regard has been heard by the Commission and is denied."

The Commission also referenced the recent appellate decision on the Reset Order. "Appellants' arguments about the scope of Commission authority have already been decided against them by the Courts that found that the Commission has broad statutory jurisdiction and authority over the sale of gas and electricity that authorizes it to impose the limitations set forth in the Reset Order. The Commission accordingly has full authority to investigate and ascertain facts in determining whether the markets are not working properly. Such facts may go to whether the Commission should require the limitations required by the Reset Order or such other remedies as may be necessary to address flaws in the markets. Such other remedies may include prohibiting ESCOs from providing service or altering existing Commission policies with respect to market design."

During the Commission's session in which the Order was considered, Commissioner Burman expressed a number of concerns. She expressed concern about chaotic, confusing and illogical processes over the past few years at the Commission. She was also concerned that the Secretary's December 2016 Notice initiating the Track I proceeding was issued without the Commission's "blessing" which she noted the full Commission could have addressed at its December 17, 2016, session, calling it a failure of process, procedurally and substantively. Commissioner Burman disputed whether the Secretary's Notice was merely ministerial in nature. She also questioned the characterization of the Notice as a head start on the proceeding. Commissioner Burman also expressed concern that parties making motions shouldn't be perceived as merely seeking delay. Finally, while noting that the issue was not currently before the Commission, she said she was very concerned about subpoenas being issued without the Commission voting on it. She said that the issuance of subpoenas is an extraordinary act, especially when given to non-parties and when the scope is so broad. She advised that the Commission needs to be clear on the appropriateness of when subpoenas should be issued.

The full text of the Order is available on the NEM Website.

Orders on Utility Ownership of DER

The Commission issued an Order denying rehearing of the Track One Order in REV with respect to the issue of utility ownership of distributed energy resources (DER) to serve low to moderate income customers. The Track One Order had adopted a general rule that, "the Track One Order adopted the general rule that "utility ownership of DER will not be allowed unless markets have had an opportunity to provide a service and have failed to do so in a cost-effective manner." However, the Commission recognized exceptions to the rule, including for instance, "where there does not appear to be a developing market for DER and the public interest warrants utility investment that will support such development. One segment that warrants this allowance is low or moderate income customers that can use DER to moderate their energy bills and take advantage of the REV market." The Order on Rehearing clarified that the exception contemplated actual utility ownership of DER to serve low and moderate income customers, not just investments. However, any utility proposal to own DER to serve low and moderate income customers any program developed by the utility to own DER for LMI customers will be subject to Commission review and must make a showing that the proposal fulfills a need and is in the public interest. The full text of the Order is available on the NEM Website.

Relatedly, the Commission approved a petition filed by ConEd for a shared solar pilot program to provide Community Distributed Generation (CDG) to customers participating in its electric low income affordability program. The Commission approved the proposed first phase of the pilot, allowing ConEd to procure and install approximately 3 MW of solar generation on ConEd property for participating low income customers. ConEd must file an implementation plan subject to Commission approval prior to beginning project construction or implementation activities. The full text of the Order is available on the NEM Website.

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Dominion Proposed CRG Tariff

Dominion filed a petition with the Commission seeking approval of “six voluntary 100 percent renewable energy tariffs” applicable to commercial and industrial customers with peak loads of over 1,000 kilowatts designated Rate Schedule CRG (Continuous Renewable Generation) – GS-1, Rate Schedule CRG – GS-2, Rate Schedule CRG – GS-3, Rate Schedule CRG – GS-4, Rate Schedule CRG – GS-27, and Rate Schedule CRG – GS-28. In a footnote, Dominion states that it intends to propose a similar tariff for residential customers in the future. Dominion's filing is of particular significance because if the Commission approves the CRG Rate Schedules as meeting the statutory definition of a 100% renewable energy tariff under Virginia Code § 56-577 A 5, then “the CRG Rate Schedules would impact the Company’s obligation to allow retail choice to certain customers seeking to purchase renewable energy.” Dominion's petition follows a recent petition filed by Direct Energy in this regard, wherein the Commission found that under Virginia law Direct is permitted to offer such products, so long as Dominion does not have an applicable green tariff to serve relevant customers.

NEM has filed a notice of participation in the matter. Additionally, a Motion to Dismiss or Stay the Proceeding was filed by Direct Energy on the grounds that Dominion's filing seeks approval of a tariff but Dominion has failed to file sufficient information to constitute an actual tariff and also because of other pending cases the results of which are essential to deciding parties' rights in the Dominion filing.

The full text of the Dominion's Proposed CRG Tariff is available from NEM headquarters.

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