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
The Calpine Motion Meets the Standards to Permit Interlocutory Appeal Under Rule 715
Rule 715(c)(5) requires the Motions Commissioner to permit appeal to the Commission if he finds “extraordinary circumstances which make prompt Commission review necessary to prevent detriment to the public interest or irreparable harm to any person (emphasis added)”. The Calpine Motion meets both standards.
First, the Calpine Motion shows that prompt Commission review is necessary to prevent detriment to the public interest. Specifically, the Presiding Judge’s decisions threaten the ability of individuals with sufficient knowledge and expertise to participate in Commission proceedings, thereby harming the Commission’s ability to make informed decisions. For the Commission to effectively regulate the emerging wholesale electric market, it must make informed decisions. That requires the participation of individuals with sufficient knowledge and expertise of wholesale markets to provide their views to the Commission on the significant matters before it.
Qualified individuals should not be required to forego work for other clients in order to access confidential information in Commission proceedings. Dr. Roach and Mr. Janssen’s knowledge, expertise and client base are no different from the consultants working for Entergy or, indeed, the private consultants that work for the myriad other entities involved in the emerging competitive wholesale market. If individuals like Dr. Roach and Mr. Janssen (and presumably the consultants for Entergy and others if the same standards are applied) are denied access to confidential information simply because such information might be used inappropriately (and in violation of the Protective Order) in some other proceeding for some other client, then the pool of qualified individuals with the experience necessary to participate in Commission proceedings will quickly shrink. That would not be in the public interest if the goal of Commission proceedings is to develop a full and comprehensive record on the important matters before it. As the Calpine Motion concludes, “the only firms that would survive a “competitive duty” objection under the standards set forth in the Order (i.e., the Presiding Judge’s decision) would decidedly lack the fundamental expertise, experience, knowledge, and judgment required to aid the Commission in developing a complete record to ensure an informed result.“ Such an outcome is not in the public interest.
Second, the Calpine Motion shows that prompt Commission review is necessary to prevent irreparable harm to any person, in this case to Calpine and other competitive suppliers that seek to ensure that affiliated PPAs are entered into after a transparent and non-discriminatory process. Here, Entergy, a vertically-integrated utility, is not independent from its wholesale generation and marketing affiliate. Calpine and other competitive suppliers have sought to ensure that such PPAs were entered into after an open and non-discriminatory process, a position the Commission has taken in numerous recent proceedings. Yet, four months into the hearing, and a month from the due date of intervener testimony on October 24, 2003, the September 24 Order threatens the ability of Calpine to present its view on this important Commission proceeding. As the Motion makes clear:
The Orders preclude Calpine from participating meaningfully in the proceeding as Dr. Roach and Mr. Janssen are integral to the preparation of Calpine’s case and of its analysis of HSPM in this case.
This fundamental violation of Calpine’s due process rights should not be allowed to stand.