[BETA] Fortnightly

The issue of the day is what to do with the Public Utility Regulatory Policies Act of 1978 (PURPA). Whether the act will be repealed or merely revised is open to debate, but the consensus is that changes are forthcoming.

Ever since the Federal Energy Regulatory Commission (FERC) issued its February order finding that the California commission had violated PURPA by requiring Southern California Edison Co. and San Diego Gas and Electric Co. to purchase power at above avoided costs, pundits have been proclaiming that the FERC intends to gut the act (Docket Nos. EL95-16-000 and EL95-19-000). At the FERC's April 12 meeting, Commissioner Donald F. Santa, Jr. criticized such predictions for creating "hysteria." Reaffirming the FERC's respect for the sanctity of contracts, Santa pointed to the Commission's decision denying New York State Electric & Gas Corp.'s (NYSEG's) petition to modify contract rates it pays for purchased power from two qualifying facilities (QFs) (Docket No. EL95-28-000). He further characterized the allegation that recent FERC orders have put existing QF contracts at risk as a "red herring."

In the NYSEG case, the utility had argued that its contracts with Lockport Energy Associates, L.P., and Saranac Power Partners, L.P., would cost its customers $2 billion more for electricity than if NYSEG generated or otherwise acquired the electricity. NYSEG said the New York Public Service Commission (PSC) had forced it to enter into the agreements despite its objections that the agreements did not adequately protect ratepayers against the risks of payments in excess of avoided costs. At the time, NYSEG proposed that tracking and reconciliation provisions be used to void payments in excess of avoided costs. Meanwhile, the PSC petitioned the FERC to reform the contract prices. The FERC held that its regulations implementing PURPA do not prohibit rates for purchases from QFs that 1) are based on estimates of a utility's avoided costs calculated at the time the obligation is incurred, and 2) subsequently differ from the utility's actual avoided costs at the time of delivery. The FERC reiterated that it will not disturb existing QF contracts that contain such purchase rates as long as the contracts were not challenged at the time they were signed and are not now the subject of an ongoing challenge to the state's avoided-cost determination. NYSEG had waited too long to make its challenge, the FERC ruled, noting that the need for certainty with regard to contracts and investment in technology justifies requiring a utility to pay a rate for purchases that would subsidize the QF at the expense of the utility's ratepayers.

On the same day, the FERC also denied rehearing of two related avoided-cost orders in Orange and Rockland Utilities, Inc., et al., Docket No. EL87-53-004, and Connecticut Light & Power Co., Docket No. EL93-55-001. The Orange and Rockland case challenged a New York state law establishing a minimum six-cent rate for QF purchases. The State of New York

subsequently repealed the rate (em except in two

circumstances (em making the case moot. The denied rehearing sought to void any contracts tied to the six-cent rate.