FERC Filings
Answer of EPSA in Opposition of the Motion to Intervene Out-Of-Time, and Answer to Motion to File Out-Of-Time Brief of the Missouri Public Service Commission
Introduction
Ameren Energy Generating Company
and Union Electric Company
d/b/a AmerenUE
Docket No. EC03-53-000
Pursuant to Rules 213 and 214 of the Commission’s Rules of Practice and Procedure, 18 C.F.R. §§ 385.213 and 385.214 (2003), the Electric Power Supply Association (“EPSA”) hereby submits its answer in opposition to the March 30, 2004, Motion To Intervene Out-Of-Time Of the Missouri Public Service Commission, and the March 30, 2004, Motion For Leave To File Out-Of-Time Brief Of The Missouri Public Service Commission In Response To Briefs On Exceptions (collectively “MOPSC Motions”). For the reasons set forth below, the Missouri Public Service Commission (“MOPSC”) should not be permitted to intervene as a party of record in this proceeding, but EPSA does not object to the Commission’s treating the MOPSC’s brief as that of an amicus curiae.
As a preliminary matter, this case is not about state resource planning prerogatives. The fundamental issue before the Commission is whether AmerenUE’s proposed purchase of its affiliate’s generation assets is consistent with the public interest in ensuring vibrant, competitive generation markets, as required under Section 203 of the Federal Power Act (“FPA”). The MOPSC’s repeated assertions that the Proposed Transaction is consistent with its preferences and the July 2002 retail rate settlement (“Missouri Settlement”)—points which EPSA does not dispute—are irrelevant to the resolution of this issue.
Indeed, it is undisputed that by January 2002, more than six months before it signed the Missouri Settlement, AmerenUE rejected the long-term tolling offers submitted in response to the August 2001 RFP. AmerenUE admits that it decided to purchase its affiliate’s generation in April 2002, three months before it entered into its rate case settlement. AmerenUE further admits that its ability to purchase its affiliate’s generation was a non-negotiable term of the Missouri Settlement. Thus, the evidence adduced at hearing shows that it was AmerenUE’s preference for purchasing its affiliate assets that led to the Missouri Settlement, and not vice versa.
In any event, Section 203 of the FPA does not countenance a jurisdictional utility’s disregard for the Commission’s long-standing prohibition against affiliate favoritism, based on a negotiated, after-the-fact, rate case settlement incorporating that favoritism as a material term. However, even if AmerenUE’s January 2002 decision to reject lower cost tolling offers was directed by the MOPSC or its Staff, a conclusion that is not supported by the record, neither the MOPSC’s preferences, nor the terms of the rate settlement case, prevented AmerenUE from conducting a new and transparent “asset acquisition only” Request for Proposals (“RFP”) after it had entered into the Settlement.
Given the MOPSC’s stated willingness to work closely with the Commission on issues that require federal/state cooperation, it should not object to the Commission’s rejection of the Proposed Transaction without prejudice to AmerenUE’s filing future applications for the purchase of generation based upon a new, transparent and state-supervised RFP conducted in accordance with the guidelines described by Dr. Roach in his initial testimony. And if necessary to ensure that AmerenUE can consider the widest possible range of generation acquisition options present in that RFP, presumably the MOPSC also would approve reasonable accommodations in the Missouri Settlement’s time-frames for new infrastructure investment.