FERC Filings
Memorandum of EPSA in Support of Appeal of Order Denying Calpine Corp.'s Motion for Interlocutory Appeal on the Status of its Unaffiliated Outside Experts Under 9(b)(5) of the Protective Order
Introduction
Entergy Services Inc., et. al
Docket Nos. ER03-583-000
ER03-681-000
ER03-682-000
ER03-744-000
(Consolidated)
ER03-753-000
(Not Consolidated)
The Electric Power Supply Association (EPSA) hereby files in support of the Calpine Corporation’s Appeal of Order Denying Calpine Corporation’s Motion for Interlocutory Appeal on the Status of Its Unaffiliated Outside Experts Under 9(b)(5) of the Protective Order. (Calpine Motion). The Calpine Motion sets forth the extraordinary circumstances which necessitate prompt Commission review of Presiding Judge Lawrence Brenner’s September 24, 2003 Order Confirming Denial Of Access to Highly Sensitive Protective Materials by Proposed Calpine Representatives (September 24 Order) and the Presiding Judge’s September 29, 2003 Order Denying Calpine Motion for Interlocutory Appeal (September 29 Order) (hereinafter the Presiding Judge’s decisions).
The Presiding Judge’s interpretation of the Protective Order is fatally flawed. Prompt Commission review of that interpretation is necessary to prevent: (1) detriment to the public interest, (i.e., ensuring that individuals with the requisite knowledge and expertise of wholesale power markets are available in Commission proceedings in order to provide the Commission with a full and complete record), and (2) irreparable harm to any person (i.e., the ability of Calpine and other competitive suppliers to make a case in this proceeding that Entergy’s power purchase agreements (PPAs) with its affiliates are the result of affiliate favoritism and should be rejected). Thus, the Calpine Motion meets the standards to permit appeal to the Commission under Rule 715.
The parties to the proceeding, as well as market participants as a whole, would benefit from further Commission guidance on the operation of Protective Orders in Commission proceedings. The Presiding Judge’s decisions raise significant policy issues regarding the balance between access to confidential information necessary to participate fully in Commission proceedings, while preventing the improper disclosure of that confidential information for purposes outside the scope of that proceeding. Unfortunately, the Presiding Judge simply foreclosed Dr. Roach and Mr. Janssen from reviewing certain materials and thus never adequately addressed this difficult balance.
Moreover, the Presiding Judge is apparently of the view that the provisions of the Protective Order designed to ensure compliance and prohibit improper disclosure, e.g. Paragraph 15 (prohibiting the use of Protective Materials to give any Participant or any competitor of any Participant a commercial advantage), and Paragraph 30 (requiring the use of information only in connection with this proceeding and finding that any violation of the Protective Order is a violation of a Commission Order), were not sufficient to prevent the inappropriate disclosure of protected materials necessary to participate in this proceeding. In his view, the only course was to prevent Dr. Roach and Mr. Janssen from reviewing a crucial subset of protected materials designed by Entergy as Highly Sensitive Protected Materials (HSPM), all based on a very narrow interpretation of Section 9(b)(5) of the Protective Order as discussed further below. Paragraphs 15 and 30 are standard provisions in the Commission’s Model Protective Order (MPO). These provisions were designed to ensure compliance with the Protective Order without the need to disqualify qualified witnesses (or requiring them to give up their livelihood in order to review confidential materials in Commission proceedings) and have worked without incident in countless Commission proceedings. In fact, Dr. Roach has operated under these Commission rules on numerous occasions without incident. There is simply no evidentiary basis to believe that these provisions, and the additional provisions that Dr. Roach proposed to ensure compliance, will not work here. Therefore, the appeal should be permitted and the procedural schedule held in abeyance pending the Commission’s ultimate determination.