BILL ANALYSIS                                                                                                                                                                                                              1
          1





                SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
                            MARTHA M. ESCUTIA, CHAIRWOMAN
          

          SB 107 -  Simitian                                Hearing Date:   
          April 26, 2005             S
          As Amended:  April 19, 2005             FISCAL           B
                                                                        
                                                                        1
                                                                        0
                                                                        7

                                      DESCRIPTION
           
           Existing law:  

          1.Requires the California Public Utilities Commission (CPUC) to  
            reserve a portion of future electrical generating capacity for  
            renewable resources. 
            (Public Utilities Code Section 701.3)

          2.Expresses legislative intent to increase renewable electricity  
            to 17 percent of consumption in the state by 2006.
            (SB 1038 (Sher), Chapter 515, Statutes of 2002)

          3.Requires each investor-owned utility (IOU) to increase its  
            existing level of renewable resources by one percent of sales  
            per year until renewable resources account for 20 percent of  
            its generation portfolio, provided sufficient Public Goods  
            Charge (PGC) funds are available to cover any above-market  
            costs.
            (AB 57 (Wright), Chapter 835, Statutes of 2002)

          4.The "Renewables Portfolio Standard" (RPS), requires IOUs and  
            certain other retail sellers to meet essentially the same  
            renewable procurement goals as AB 57, but sets a deadline of  
            2017 for achieving a 20 percent renewable portfolio and  
            establishes a detailed process and standards for renewable  
            procurement.  

             a.   IOUs and other retail sellers must buy renewable  
                electricity  from eligible resources to meet their RPS  
               obligations.  Buying unbundled "renewable energy credits"  
               (RECs), rather than electricity, won't satisfy RPS  











               obligations.

             b.   To be eligible, renewable resources must be located in  
               or delivered to California.  Delivery to  a  retail seller or  
               the Independent System Operator is required, but there is  
               no explicit requirement for delivery to the purchasing   
               retail seller.

             c.   Local publicly-owned electric utilities are not subject  
               to the same detailed process and standards as IOUs, but are  
               required to implement and enforce their own RPS programs.
            (SB 1078 (Sher), Chapter 516, Statutes of 2002)










































           This bill:
           
             1.   Advances the deadline for achieving a 20 percent RPS  
               from 2017 to 2010 and requires the CEC to review the  
               feasibility of increasing the RPS target to 33 percent by  
               2020.

             2.   Authorizes IOUs and other retail sellers to buy RECs  
               instead of renewable electricity pursuant to a REC trading  
               program which allows the sale of the renewable attribute of  
               renewable electricity as a commodity unbundled from the  
               physical production and delivery of renewable electricity,  
               subject to the following conditions:

                 a.       RECs may only be counted once (by the retail  
                   seller who purchases the REC).
                 b.       Any revenues received by an IOU for the sale of  
                   excess RECs must be credited to ratepayers.
                 c.       The quantity of RECs that can be separately  
                   procured (as opposed to buying renewable electricity)  
                   to meet a retail seller's RPS obligations may be  
                   limited by the CPUC.
                 d.       Renewable energy resources included in an IOU's  
                   RPS baseline as of January 1, 2004 can't be sold off as  
                   RECs.
                 e.       RECs must originate from electricity generated  
                   by an eligible resource and delivered in state.
                 f.       RECs must include all environmental attributes  
                   associated with production from an eligible resource,  
                   except emission reduction credits (offsets) issued by  
                   an air district.
                 g.       A system for tracking and verifying RECs must be  
                   established by the California Energy Commission (CEC)  
                   before RECs may be used for RPS compliance.
                 h.       An IOU may purchase RECs pursuant to a 10-year  
                   contract only if the underlying electricity is sold in  
                   California and it is not feasible or cost-effective to  
                   deliver to the IOU's service territory.

             1.   Requires each local publicly-owned electric utility to  
               report to the CEC:

               a.     PGC expenditures for renewable energy resource  
                 development.










               b.     Amounts of each type of renewable energy resource in  
                 its portfolio.
               c.     Status of RPS implementation and progress toward RPS  
                 goal.

             1.   Prohibits the CEC from recognizing RECs from a  
               pre-January 1, 2005 contract unless the contract specifies  
               ownership of the RECs.  Prohibits the CEC from recognizing  
               RECs from a post-January 1, 2005 contract entered pursuant  
               to the Public Utility Regulatory Policies Act (i.e. a  
               Qualifying Facility contract).

             2.   Repeals the 20 percent cap for retail sellers, implying  
               the CPUC may require a retail seller to continue buying  
               renewable resources at the rate of one percent per year  
               after the retail seller attains 20 percent.

             3.   Authorizes recovery from ratepayers of an IOU's  
               "indirect costs" associated with buying renewable  
               resources, such as having to sell excess energy, decrease  
               output from lower cost resources or upgrade transmission  
               lines.
































             4.   Provides an IOU may only receive an award of "new  
               renewable" PGC funds for a project if the project is  
               selected pursuant to a competitive solicitation the CPUC  
               finds complies with the RPS and the CPUC has approved a  
               contract for the project.  These "supplemental energy  
               payments" may not be awarded for the purchase of RECs.

             5.   Repeals the requirement that the CEC direct 10 percent  
               ($13.5 million/year) of renewable funds collected via the  
               PGC for credits to existing renewable direct access  
               customers (the CEC has suspended the customer credit  
               program and redirected the funds to other renewable  
               programs).

             6.   Permits an IOU serving fewer than 60,000 customers in  
               California that also serves customers in another state  
               (i.e. PacifiCorp and Sierra Pacific Power) to count its  
               out-of-state renewable resources toward its RPS compliance.

             7.   Requires IOUs and municipal utilities to adopt  
               strategies to achieve efficiency in the use of fossil fuels  
               and to address carbon emissions.

             8.   Requires the CEC to prepare recommendations for how to  
               "incentivize" municipal utilities to implement and enforce  
               RPS programs according to the standards applicable to IOUs.

             9.   Repeals several obsolete provisions and makes various  
               other technical and clarifying changes.

                                      BACKGROUND
           
          The RPS requires IOUs and certain other retail energy providers,  
          collectively referred to as "retail sellers," to buy renewable  
          electricity to the extent PGC funds are available to pay for any  
          costs exceeding a market price set by the CPUC.

          Each IOU is required to increase its renewable procurement each  
          year by at least one percent of total sales, so that 20 percent  















          of its sales are renewable energy sources<1> by December 31,  
          2017.  Once a 20 percent portfolio is achieved, no further  
          increase is required.  The CPUC is required to adopt comparable  
          requirements for direct access energy service providers (ESPs)  
          and community choice aggregators (CCAs).

          The RPS applies to:

          1.IOUs meeting specified creditworthiness conditions.
          2.ESPs, for any new customers or new contracts, and for all  
            customers beginning January 1, 2006.
          3.CCAs.
















          ---------------------------
          <1> Eligible renewable technologies are biomass, solar thermal,  
          photovoltaic, wind, geothermal, renewable fuel cells,  
          hydroelectric 30 megawatts or less, digester gas, municipal  
          solid waste conversion, landfill gas, ocean wave, ocean thermal,  
          and tidal current.  Existing small hydroelectric, existing  
          geothermal, and a garbage burning plant in Modesto may be  
          counted toward a retail seller's baseline, but are not eligible  
          for supplemental payments from PGC funds.

































          The RPS does not apply to:

          1.Co-generation supplying customers on-site and via "over the  
            fence" transactions.
          2.The California Department of Water Resources.
          3.Municipal and other local publicly-owned electric utilities.   
            These utilities are responsible for implementing and enforcing  
            their own RPS programs.

          The RPS requires the CPUC to adopt processes for determining  
          market prices, ranking renewable bids according to cost and fit,  
          flexible compliance rules and standard contract terms.  The RPS  
          requires IOUs to offer contracts of at least 10 years, unless  
          the CPUC approves shorter contracts.  This is intended to  
          support the development of new renewable resources.

          The "Energy Action Plan" adopted by the CPUC, the CEC and the  
          California Power Authority pledges that the agencies will  
          accelerate RPS implementation to meet the 20 percent goal by  
          2010, instead of 2017.  In his statements on energy, the  
          Governor has endorsed "20 percent by 2010" and proposed an  
          additional goal of 33 percent by 2020.

                                       COMMENTS
           
              1.   D?j? vu.   This bill is similar to SB 1478 (Sher), vetoed  
               by the Governor last year.

               As approved by this committee last year, SB 1478 permitted  
               REC trading for RPS compliance, but allowed only one trade.  
                The only transaction permitted was sale of the REC by the  
               generator producing it to the retail seller using it for  
               RPS compliance.  In effect, this provision prevented resale  
               by retail sellers and a secondary trading market for RECs.

               The "one trade" condition was removed from SB 1478 in the  
               Assembly and replaced with a provision that allowed two  
               trades - the initial "bundled" sale of energy and a  
               subsequent trade.  Even then, SB 1478 was vetoed on grounds  
               including that its remaining REC conditions were "onerous"  
               and it didn't open up the RPS to the entire western region.

               This bill contains neither the one trade condition nor the  
               two trade condition.  This bill does not limit the number  










               of REC trades and allows anyone, not just generators and  
               retail sellers, to trade RECs.

              2.   Will REC trading further the purpose of the RPS?   Past  
               examples of environmental compliance via credit trading  
               programs indicate these programs provide a more convenient  
               way for regulated industry to achieve minimum compliance,  
               but don't necessarily promote investments to improve the  
               environment or effectively mitigate adverse environmental  
               impacts.

               In this case, allowing retail sellers to purchase RECs  
               rather than the bundled renewable electricity product will  
               allow them more flexibility to comply with the RPS.  For  
               example, an IOU with inadequate transmission to deliver  
               sufficient renewable electricity to its load can buy  
               conventional electricity from a local source to serve its  
               load and buy RECs originating from a distant renewable  
               producer to satisfy its RPS obligations.  Or, a small  
               retail seller, such as an ESP, who may not be able to sign  
               the long-term contracts necessary to develop new renewable  
               resources, can buy RECs instead.  

               While REC trading may make RPS compliance more convenient,  
               it adds considerable complexity to a policy already bogged  
               down in complex implementation details.  It also seems  
               inherently inconsistent with the goal of supporting the  
               development of new renewable resources within California.   
               This bill attempts to overcome this inconsistency by  
               imposing a variety of conditions on RECs.

               This bill establishes a limited definition of RECs and  
               further limits how RECs can be traded in an effort to  
               prevent a wide-open REC market.  However, the current RPS  
               requires retail sellers to purchase the renewable  
               electricity itself, and contemplates IOUs will comply by  
               buying renewable resources via long-term contracts with  
               in-state producers, rather than by buying RECs.  

                The author and the committee may wish to consider  whether  
               REC trading is consistent with the goals of the RPS and  
               whether it should be permitted for RPS compliance.  If the  
               intent is to authorize RECs as a compliance alternative,  
                the author and the committee may wish to consider  the  










               following additional specific limitations on their use in  
               the RPS:

                  a.        Permit only one trade of a REC unbundled from  
                    renewable electricity.
                  b.        Permit only renewable producers and retail  
                    sellers to trade RECs.

              1.   Is there any evidence that REC trading is needed?    
               Proponents of REC trading say it is needed to address  
               either their inability to deliver renewable electricity to  
               their customers or their inability to enter the long-term  
               contracts for renewable electricity contemplated by current  
               RPS law.

               Sempra wants RECs because it says it doesn't have enough  
               renewable electricity potential within San Diego or  
               deliverable to San Diego using existing transmission lines.  
                So, instead of investing directly in renewable generation  
               itself, it wants to be able to purchase RECs from renewable  
               generation that someone else has invested in.  While  
               Sempra's deliverability issue is legitimate, it doesn't  
               require REC trading to solve.  It can be addressed through  
               exchanges with other California utilities, while retaining  
               the new investment focus of the RPS.  This approach may  
               require a fairly minor clarification of delivery  
               requirements in current law.

               ESPs want RECs because entering long-term contracts to  
               support development of new renewable resources doesn't fit  
               their business model - which is to buy electricity  
               sufficient to serve their customers on a relatively  
               short-term basis.  

               Sempra and the ESPs are pointing to prospective problems  
               which have not been confronted in RPS implementation to  
               date.  Nor have they demonstrated that REC trading is  
               needed to address them.   The author and the committee may  
               wish to consider  whether REC proponents should show  
               evidence of need prior to permitting REC trading, rather  
               than permitting it based on speculation about prospective  
               problems.












              2.   20 percent by 2010, then what?   One percent per year is  
               the current rate of renewable additions required by AB 57  
               and the RPS.  This pace leads all IOUs to reach 20 percent  
               on or before 2017.  Because Southern California Edison is  
               already near 20 percent, advancing the deadline to 2010 may  
               not have a material impact on its RPS obligations.  Pacific  
               Gas & Electric reports a 2004 baseline of 12.7 percent, so  
               would need to increase to about 1.2 percent per year to  
               reach 20 percent by 2010.  San Diego Gas & Electric is  
               currently at about 7 percent, so would need to increase to  
               about 2.2 percent per year to reach 20 percent by 2010.

               In addition to advancing the 20 percent deadline to 2010,  
               this bill removes the 20 percent cap for retail sellers,  
               implying the CPUC may require an IOU or another retail  
               seller to continue buying renewable resources at the rate  
               of one percent per year after attainment of the 20 percent  
               goal.  The bill also requires the CEC to review the  
               feasibility of increasing the RPS target to 33 percent by  
               2020 and report back to the Legislature.

              3.   Who gets to count RECs from PURPA contracts?  In 2003,  
               the Federal Energy Regulatory Commission (FERC) ruled that  
               long-term PURPA contracts with Qualifying Facilities do not  
               necessarily result in the conveyance of RECs to the  
               purchasing utility.  FERC reasoned that its "avoided cost  
               regulations did not contemplate the existence of RECs and  
               that the avoided cost rates for capacity and energy sold  
               under contracts entered into pursuant to PURPA do not  
               convey the RECs, in the absence of an express contractual  
               provision."

               FERC left determinations regarding ownership to the states,  
               noting that "states, in creating RECs, have the power to  
               determine who owns the REC in the initial instance, and how  
               they may be sold or traded; it is not an issue controlled  
               by PURPA."  

               This bill addresses the REC ownership issue teed up by FERC  
               for the states by not permitting the recognition of RECs  
               from PURPA contracts (unless an existing contract specifies  
               ownership of the RECs) and therefore preventing the  
               scenario where RECs would be created and sold apart from  
               the contract, which could result in double payment for the  










               same renewable electricity or disqualification of PURPA  
               contracts now counted toward IOUs' RPS baselines.  The  
               provisions in this bill assure renewable power from PURPA  
               contracts count toward the RPS obligations of the  
               purchasing IOU and are similar to provisions in SB 431  
               (Battin), approved by this committee April 19.

              4.   Should ratepayers pay for RPS excesses?   This bill  
               authorizes recovery from ratepayers of an IOU's "indirect  
               costs" associated with buying renewable resources, such as  
               having to sell excess energy, decrease output from lower  
               cost resources or upgrade transmission lines.  As written,  
               this seems like a fairly open-ended and unbalanced  
               obligation on ratepayers.   The author and the committee may  
               wish to consider  specifying that such indirect costs, in  
               order to be recovered, must be prudently incurred,  
               necessary to comply with the RPS and in ratepayers'  
               interest.  
             
                In addition,  the author and the committee may wish to  
               consider  whether such expenses, if they are unique to  
               buying renewable resources, should be funded out of the  
               PGC.

              5.   CEC reports should be consolidated.    The author and the  
               committee may wish consider  combining the two CEC reports  
               required by this bill and incorporating them into the CEC's  
               current Integrated Energy Policy Report process.
           
             6.   Technical amendments.   This bill requires a variety of  
               technical and clarifying amendments to ensure consistent  
               standards, terms, cross references and grammar.

              7.   Related legislation.  Two competing measures based on SB  
               1478 were introduced in the Assembly, AB 1362 (Levine) and  
               AB 1585 (Blakeslee).  AB 1362 appears to permit unlimited  
               REC trading for RPS compliance.  As introduced, AB 1585  
               permitted unlimited REC trading, but was recently amended  
               to remove all provisions except a CEC study of the  
               feasibility of attaining a 33 percent RPS standard.  Both  
               bills are set for hearing in the Assembly Natural Resources  
               Committee April 25.

                                       POSITIONS










           
           Sponsor:
           
          Author

           Support:
           
          Clean Power Campaign
          East Bay Municipal Utility District
          Independent Energy Producers (if amended)
          Sierra Club California
          The Utility Reform Network
          Union of Concerned Scientists

           Oppose:
           
          California Council for Environmental and Economic Balance
          Calpine
          Constellation New Energy
          Pacific Gas and Electric Company
          Sempra Energy
          Southern California Edison




          


          Lawrence Lingbloom 
          SB 107 Analysis
          Hearing Date:  April 26, 2005