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Electric Restructuring Legislation: Handicapping the 106th Congress

Fortnightly Magazine - February 1 1999

and S.2419]."

One of the largest questions is who will carry the administration's electric restructuring bill, S. 2287, introduced last year in the Senate as a courtesy by Bumpers and Murkowski. If Bingaman, Murkowski and Gorton each introduce bills, no senior senator will be left to carry the administration's water.

"It's going to be interesting to see whether anybody on the Senate energy committee is really going to want to carry the administration's bill," Nipper says.

It's not yet clear to the administration either who will sponsor the bill, says Dan Adamson, deputy assistant secretary for power technologies at the U.S. Department of Energy. "We'll send it up, first, regardless of whether we get a sponsor," he says. "What the bill is, is the administration position on electricity restructuring. So there's a huge value in outlining that regardless of who's sponsoring it and who introduces it. ¼ The success or failure hinges on to the extent Congress passes legislation on this topic and sends it to the president."

Adamson says the proposal will be the administration's marker, and much like last year's bill, should worm its way into the text of other legislation.

"And that's fine," he says. "We like that."

The administration bill allows consumers to choose their electricity suppliers by Jan. 1, 2003, but a state may opt out of retail competition if it believes consumers would be better off under the status quo or a under a state-crafted plan. The bill could be considered pro-consumer in that electric suppliers must uniformly disclose prices and energy. It also provides for at least 5.5 percent of electricity sales to come from renewable energy and calls for $3 billion in matching funds to be put toward public benefit programs. States would oversee recovery of stranded costs. The FERC would have the authority to require transmitting utilities to let independent system operators run their facilities.

The Nickles bill, meanwhile, as proposed in the last Congress, poses real problems for such important constituents as the National Association of Regulatory Utility Commissioners, even though S. 2187 tries to support the states and not mandate restructuring.

Nickles' bill declares distribution and transmission systems to be interstate commerce and therefore, under the Commerce Clause, there has to be open access to all of them. This throws the whole question of whether there is open access to the court system.

"I think the one thing we don't want to have federal legislation do is to have the industry immediately be slammed into court," says Peggy Welsh, NARUC's executive director. "We don't want these decisions to be made through litigation. We're finding that on the telecom side, that's how that market is being decided."

Some Hill observers have said they would be surprised if Nickles pushed his bill in the new Congress. Even Nickles' office has said he would like to see what debuts before he reintroduces S. 2187.

NARUC also will be watching what Sen. Bingaman's legislation does in relationship to FERC and the states.

"The one issue that we're not there on yet is what role the