[00:00:01] Speaker 05:
Case number 12, that's 1282 at L, Louisiana Public Service Commission, Petitioner versus Federal Energy Regulatory Commission.

[00:00:10] Speaker 05:
Mr. Pontem for Petitioner, Louisiana Public Service Commission.

[00:00:13] Speaker 05:
Mr. Moot for Petitioner Energy Services, Inc.

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and Ms.

[00:00:17] Speaker 05:
Perry for Respondent.

[00:00:22] Speaker 03:
May I please record?

[00:00:24] Speaker 03:
My name is Mike Pontem.

[00:00:25] Speaker 03:
I represent the Louisiana Public Service Commission.

[00:00:29] Speaker 03:
I will attempt to argue two issues.

[00:00:31] Speaker 03:
First, FERC's decision to refrain from adjusting the depreciation rates that entered the energy bandwidth tariff in the face of findings that the depreciation allowances set by the states disrupted, distorted the bandwidth allocation with which FERC took no issue is an unlawful abdication and sub-delegation of FERC's authority.

[00:00:57] Speaker 03:
Second, first, change of rules in the compliance proceeding from the rule that the Court affirmed six years ago when I was here on that case to a new rule that allows energy to change the tariff in the compliance proceeding is arbitrary.

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With regard to depreciation, the Court has before it a cost allocation tariff.

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The purpose of the tariff is to bring the costs of all the operating companies within plus or minus 11%.

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In order to do that, the costs of each of the companies are totaled and compared.

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and Energy has had the practice of booking depreciation a very large portion of the costs that go into this bandwidth in its FERC accounts pursuant to state retail decisions.

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In this case, FERC told us to litigate all issues related to justice and reasonableness in the bandwidth proceeding.

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It dismissed an LPSC complaint on depreciation that we filed in 2008.

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The LPSC showed, along with the FERC staff, that these depreciation rates were out of all conformity with any rate-making or accounting principle, and the judge so held.

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The case went up to FERC, and FERC explicitly said, we take no issue with the judge's findings.

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But it said, well, we're going to put off any resolution of the issue for a future Section 2065.

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In other words, two years after they dismiss our filing, they say, go make a filing.

[00:02:48] Speaker 03:
How much have you made that filing?

[00:02:49] Speaker 03:
We made that filing, Your Honor, yes.

[00:02:51] Speaker 04:
So?

[00:02:52] Speaker 03:
It's still sitting at FERC, Your Honor.

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It's on rehearing.

[00:02:55] Speaker 04:
Right.

[00:02:56] Speaker 03:
And in that case, Your Honor, my opponents say it's not before you.

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You shouldn't pay attention to it.

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All you have to do is read the opinion to see that the FERC... We did read it.

[00:03:06] Speaker 03:
Okay, to see then that the FERC refused to confront the issue.

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The issue is these costs that are computed on different local policies are distorting the FERC wholesale rate.

[00:03:23] Speaker 03:
It cannot achieve its objective if you depreciate the Arkansas nuclear units on 40 years.

[00:03:31] Speaker 04:
Isn't the Commission's only point about this is that you can raise that in the 205 and 206?

[00:03:36] Speaker 03:
Yes, Your Honor, but everything in the meantime we lose.

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This is not the normal FERC policy.

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FERC has a policy on formula rates.

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Once you find out a cost is unjust and unreasonable, you can go back and fix it for prior years.

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They have said this applies to every formula rate, but they say, oh no, not for the bandwidth tariff.

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The bandwidth tariff is the filed rate, as they call it, mandates the use of state-set depreciation rates in the bandwidth tariff.

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So you can't go back.

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So the point is, we got our second complaint filed in 2010.

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And FERC basically, you know, they say, well, we don't have to follow our own policy all the time.

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Our precedents are not always applicable.

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We understand the FERC is complaining about what the cost allowances do to the tariff's purpose, but we aren't going to address that.

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We're going to say, hey, you can't change it because there's been no change of circumstances.

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Well, there was a change of circumstances.

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They originally told us you can review it in bandwidth proceedings.

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Two years later, they said you have to review it in bandwidth proceedings.

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Then, 2010, they said, oh, we're not going to do this in bandwidth proceedings.

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That cuts off our rights, Your Honor.

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If we were in the 2000 case, FERC would agree to go back.

[00:05:05] Speaker 03:
then this would be a choice of procedure case and the fact that we scored ten touchdowns and then they decided to call the rules off and start over with a new game you know at least we would have our rights going forward

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But what they have done is not that.

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They first used up three years telling us you have to litigate it in the bandwidth case.

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We have incredible findings from the ALJ that they took no issue with, that Energy Arkansas was advancing depreciation from way out in the future into the time when the bandwidth would apply to Energy Arkansas.

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They intended to withdraw, and they have withdrawn.

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So it basically allowed Energy Arkansas to export future depreciation by bringing it forward into the cost allocation tariff and computing Energy Arkansas's costs on an inconsistent basis and therefore the other companies have to pick up 80% basically of the cost.

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This is an abdication under this court's precedent.

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The Fifth Circuit said it's not a subdelegation, but they have a two-part test, and no agency could ever subdelegate under the Fifth Circuit's test.

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The Fifth Circuit said you have to find a reasonable divest authority in the outside entity, which the agency would always find, and then you have the right to change the tariff prospectively for the future.

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You know, in the meantime, it is a sub-delegation.

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This particular sub-delegation is still in effect eight years after the bandwidth formula was adopted.

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So we've lost eight years unless the FERC would change its rule on retroactive relief.

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My second point, and I'll try to make this quickly, is this.

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Judge Statel, you were on the panel on the compliance proceeding.

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It's true.

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In the compliance proceeding, FERC said, you have to comply with ETR 26 and 28.

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Energy went in and said, okay, we've eliminated all our changes, every darn one of them.

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Then, in this case, later, energy provides its data.

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It doesn't conform to ETR 26.

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Now, when I was here before you last, you were quite forthright in saying, counsel, you should have known to apply for a rehearing of 480.

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You can't change anything in the compliance case.

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Energy said, you can't change anything in the compliance case.

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The interveners, Burke said, you can't change anything in the compliance case in this court, and this court so will.

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Now we have a really, oh yeah, energy you changed it.

[00:08:02] Speaker 03:
Okay, now we have a really, energy changed it.

[00:08:05] Speaker 03:
Even as they said they did.

[00:08:07] Speaker 04:
Okay, thank you.

[00:08:13] Speaker 01:
We raised two and only two objections to opinion 505 before this Court.

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The first has to do with the union-elected contract, which gives Energy Arkansas the right to recover purchased energy expense recorded in account 555

[00:08:31] Speaker 01:
from Union Electric.

[00:08:33] Speaker 01:
There's no dispute that the bandwidth payments are properly recorded in account 555 and FERC put the bandwidth payments in a service schedule entitled Exchange Energy because it said that reflects the underlying reasons for the cost disparities that led to the remedy.

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The ALJ, recognizing this and carefully sifting through the extrinsic evidence, ruled in our favor.

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FERC reversed for two reasons.

[00:09:01] Speaker 01:
The first was, these are not purchased power costs at all.

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They're something different.

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They're a grapefruit, not an apple.

[00:09:08] Speaker 01:
That's wrong because net settlements go in Account 55 for reasons here because they are necessary to make the underlying transactions.

[00:09:18] Speaker 02:
Are there any items that are properly within 555 that are not

[00:09:23] Speaker 02:
that you wouldn't call purchased energy expense?

[00:09:28] Speaker 01:
Yes, as the extrinsic evidence showed, which the FERC ignored, which under SPP v. FERC just four months ago, this court said that's reversible error to ignore evidence is not to weigh it.

[00:09:41] Speaker 01:
Our chief accounting officer said, and he showed in itemized bills and invoices, that the only thing you do is you pull out capacity

[00:09:52] Speaker 01:
That leaves energy, and you don't pull out net settlements because they're net settlements.

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You only pull them out when they relate to capacity, which, for example, was MSS-1.

[00:10:02] Speaker 01:
It's sitting in his testimony.

[00:10:04] Speaker 01:
FERC ignored it.

[00:10:05] Speaker 01:
Here, FERC says, well, we could ignore it because it was subjective intent evidence.

[00:10:11] Speaker 00:
That's not right.

[00:10:12] Speaker 01:
We did say that.

[00:10:13] Speaker 01:
But we had course of dealing evidence, which was the last contract protected them

[00:10:19] Speaker 01:
from certain energy price spikes because it fixed the peaking charge.

[00:10:23] Speaker 02:
They gave that up.

[00:10:24] Speaker 02:
The contract, as I understand it, well, it's very short.

[00:10:29] Speaker 02:
It just says purchased energy expense recorded in account 555.

[00:10:34] Speaker 02:
But there's no definition in the contract of what a purchased energy expense is.

[00:10:40] Speaker 02:
Is there?

[00:10:41] Speaker 01:
No, no further definition.

[00:10:42] Speaker 02:
And there's no definition in the federal regulations that I've found.

[00:10:46] Speaker 02:
There's none of that.

[00:10:48] Speaker 02:
And that phrase, purchased energy expense, is not used in account 555.

[00:10:53] Speaker 02:
Isn't that correct?

[00:10:59] Speaker 01:
That is true, but if that were the case, there would be no costs that would flow through.

[00:11:03] Speaker 01:
What Account 555 says, I'm purchased power.

[00:11:07] Speaker 02:
If it's not defined in the federal regulations, it's not defined in Account 555, and it's not defined in the contract, why doesn't that make the question an open question?

[00:11:19] Speaker 01:
And exactly, the FERC said it was ambiguous.

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All the parties argued, not surprisingly, unambiguous in our favor.

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All the parties also argued, if it's ambiguous, also in our favor.

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And FERC finding it ambiguous refused to look at our extrinsic evidence.

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You can't find one site to that evidence in the FERC's orders.

[00:11:38] Speaker 01:
It ignored it.

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And what our chief accounting officer showed was, of course, a performance

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This is how we handle account 555.

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We pull out capacity, everything else stays in.

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There's no third category.

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I'd like to turn to the interest issue.

[00:11:55] Speaker 01:
FERC, when it approved the bandwidth formula, denied Louisiana's request for interest.

[00:12:02] Speaker 01:
It reversed course in this case.

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for two reasons, only one of which is defended here.

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The first was that this court's decision and Anadarko supported it.

[00:12:13] Speaker 01:
Burke wisely chooses not to rely on that.

[00:12:15] Speaker 04:
But did you raise that in your petition for re-hearing, Anadarko?

[00:12:21] Speaker 01:
That was a new rationale for the same result.

[00:12:24] Speaker 01:
It did not have to be raised.

[00:12:28] Speaker 04:
Why didn't it have to be raised?

[00:12:29] Speaker 04:
Because the commission didn't raise it until... Wait a minute.

[00:12:33] Speaker 04:
In the commission's, in its original order, didn't it deny, the order you're challenging, it changed its position and denied interest recovery, right?

[00:12:47] Speaker 01:
It changed its position, sua sponte, and ordered interest, and it didn't cite Ann and Darko.

[00:12:54] Speaker 04:
My question is, did you challenge that in your petition for re-hearing before the commission?

[00:12:59] Speaker 01:
We did, and we said, look what you said.

[00:13:00] Speaker 04:
Where did you challenge that?

[00:13:02] Speaker 04:
I looked, I didn't see it.

[00:13:05] Speaker 01:
Where did we challenge?

[00:13:06] Speaker 04:
Yeah, I didn't see it.

[00:13:08] Speaker 04:
I may have missed it.

[00:13:09] Speaker 04:
I thought your point about Anadarka was actually good, but I couldn't find it in your, which is at Joint Appendix 1186, I think.

[00:13:24] Speaker 04:
I mean, if I missed it, just point it out to me.

[00:13:37] Speaker 01:
Yes, we don't cite the Anadarko case, but that's because we said that FERC reversed course.

[00:13:43] Speaker 01:
Of course it did.

[00:13:44] Speaker 01:
And it relied on the Anadarko case.

[00:13:45] Speaker 04:
But you didn't say to FERC your new position is inconsistent with Anadarko.

[00:13:51] Speaker 04:
Anadarko said that these, originally they said Anadarko doesn't apply because these aren't rates.

[00:14:00] Speaker 04:
You didn't challenge that.

[00:14:02] Speaker 01:
Fair enough, but FERC doesn't even defend its order.

[00:14:04] Speaker 04:
That's because you didn't challenge it in the petition for rehearing?

[00:14:07] Speaker 01:
No, actually, if you look carefully at FERC's brief, what it says is the three reasons in Anadarko, we actually go into some detail because FERC, for the first time in rehearing, cited Anadarko.

[00:14:17] Speaker 01:
We went into the three reasons, not the fact that FERC, which is different, that FERC reversed course on how it applied Anadarko.

[00:14:27] Speaker 01:
Let me just say two more things about the interest holding.

[00:14:31] Speaker 01:
FERC's only reason here for defending its order is that it took longer than we expected and so our original holding

[00:14:39] Speaker 01:
was not appropriate.

[00:14:41] Speaker 01:
That is error for two reasons in our view.

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The first is there was nothing surprising or unusual about a system agreement hearing taking a couple years.

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That wasn't Entergy's fault or any other party's fault.

[00:14:55] Speaker 01:
The ALJ ruled within 13 months FERC took four years to issue an order on interest.

[00:15:02] Speaker 01:
FERC's second rationale was, well, we're distinguishing a case you cite, Entergy, that lasted three and a half years without interest, and that's distinguishable because Louisiana didn't raise interest on a timely basis.

[00:15:18] Speaker 01:
That suggests the standard is twofold.

[00:15:21] Speaker 01:
One is, you gotta ask for it, and two is, it has to be a long time.

[00:15:25] Speaker 01:
But that's not the standard, because Louisiana didn't ask for it here.

[00:15:28] Speaker 01:
They had already lost the issue, and FERC raised it suespante.

[00:15:32] Speaker 01:
So our view is that there's no rational basis for picking out of a hat five years versus three years versus one year delay, saying one of them is too much, the others are fine.

[00:15:45] Speaker 01:
Thank you.

[00:15:49] Speaker 04:
Thank you.

[00:15:55] Speaker 00:
Good morning, Your Honors.

[00:15:56] Speaker 00:
Luna Perry for the Commission.

[00:15:59] Speaker 00:
With regard to the interest issue, the Commission decided to award interest at this point because when it originally declined to award interest, it found that the bandwidth payments would be made within the next calendar year following when the costs were incurred.

[00:16:16] Speaker 00:
And because of the significant difference in the amount of time that's transpired since the payments should have been made in 2007 but they still have not yet been finalized, the Commission decided that it was appropriate to award interest.

[00:16:30] Speaker 00:
With regard to the Union Electric contract, the Commission appropriately interpreted the ambiguous phrase purchased energy expense recorded in account 555 and determines that the later enacted bandwidth payments could not be legitimately be characterized as purchased energy expense recorded in account 555 and therefore they denied

[00:16:58] Speaker 00:
the entree, the right to pass through the payments in the contract to Union Electric.

[00:17:09] Speaker 02:
And with regards... Do you agree that there are items that are included in account 555 that cannot be characterized as purchased energy expenses?

[00:17:23] Speaker 00:
Absolutely, Your Honor.

[00:17:25] Speaker 00:
There are numerous references to, for example, capacity in Account 555, which is not a purchased energy expense.

[00:17:32] Speaker 02:
Is there more to Account 5-5 than the one small paragraph that appears in the Code of Federal Regulations?

[00:17:41] Speaker 00:
No, Your Honor, that's it.

[00:17:43] Speaker 00:
That's the description of the account in the Uniform System of Accounts.

[00:17:47] Speaker 00:
Yes, Your Honor, that's right.

[00:17:49] Speaker 00:
And it's in Entry G's addendum at 8-6 also.

[00:17:53] Speaker 00:
But that's the sum total of it.

[00:17:56] Speaker 02:
That CFR

[00:17:59] Speaker 02:
description of account 555 was in existence in 1999?

[00:18:05] Speaker 00:
Yes, Your Honor.

[00:18:06] Speaker 02:
When this contract was entered in?

[00:18:09] Speaker 00:
Yes, Your Honor.

[00:18:09] Speaker 00:
I believe it has been the same.

[00:18:11] Speaker 00:
I don't know that it has been altered.

[00:18:17] Speaker 02:
And with regard to the arguments that were raised by Louisiana, in both cases the Commission found... What is your response to Council for Energy's argument that FERC ignored the evidence bearing on the interpretation of an ambiguous contract phrase, namely the testimony of Energy's chief accountant?

[00:18:47] Speaker 00:
The Commission spoke about the extrinsic evidence that Entry G put in in 505A, paragraph 36 of the Joint Appendix 105.

[00:19:00] Speaker 00:
The Commission talked about the fact that Entry G put in evidence that Entry G did not intend to protect Union Electric against fluctuations in the cost of fuel.

[00:19:14] Speaker 00:
or the cost of any other source of energy.

[00:19:17] Speaker 00:
But the commission's point was that that doesn't really speak to the issue of the later enacted bandwidth payments.

[00:19:25] Speaker 00:
The fact that they intended to pass through all of the costs to Union Electric of supplying electricity to Union Electric doesn't speak to the later enacted bandwidth payments, which do not fit within the language of the contract.

[00:19:44] Speaker 00:
particularly since the variable that they were trying to pass the cost through is purchased energy expense charged to account 555, which the commission reasonably interpreted to not include everything in account 555, but only purchased energy expense.

[00:20:01] Speaker 00:
And there is a separate fuel variable under the contract.

[00:20:06] Speaker 00:
So it's literally limited to purchased energy expense.

[00:20:10] Speaker 00:
And the commission reasonably found that

[00:20:14] Speaker 00:
that simply the bandwidth payment did not reasonably fit within that very limited scope of the contract language.

[00:20:29] Speaker 00:
With regard to the

[00:20:33] Speaker 00:
issues that were raised by Louisiana.

[00:20:35] Speaker 00:
In both cases, the Commission founds that in this bandwidth proceeding, which is just the proceeding on the annual filing as opposed to the justice and reasonableness of the formula rate,

[00:20:50] Speaker 00:
that the formula rate governed in both cases with regard to using the state depreciation for in the cost and with regard to the definition of the energy ratio and that the bio tariff controlled and those components could not be changed in this annual bandwidth proceeding but only in a 206 proceeding.

[00:21:11] Speaker 00:
And as was discussed earlier, Louisiana has filed a 206 proceeding with regards to the depreciation issue, and the commission denied that complaint, finding that they had not demonstrated that it was unjust and unreasonable to include the state-approved depreciation in the bandwidth formula.

[00:21:35] Speaker 00:
If there are no further questions?

[00:21:39] Speaker 04:
No.

[00:21:39] Speaker 04:
Thank you.

[00:21:41] Speaker 04:
So did counsel for the two petitioners.

[00:21:44] Speaker 04:
You can each take one minute if you would like it.

[00:21:53] Speaker 03:
My content for the Louisiana Public Service Commission again.

[00:21:57] Speaker 03:
I would note, in opinion 505, FERC said that the language in the tariff does permit FERC to decide what that appreciation rate should be.

[00:22:08] Speaker 03:
But it said we're going to punt the issue to a future section 206.

[00:22:13] Speaker 03:
It wasn't until much later that FERC reinterpreted the tariff.

[00:22:17] Speaker 03:
The original interpretation was that FERC can adjust it.

[00:22:22] Speaker 03:
It wasn't until much later that FERC said the tariff prevents us from adjusting it.

[00:22:28] Speaker 02:
Why isn't your claim in this case moot now?

[00:22:31] Speaker 02:
Well, I don't understand why it would be moot, Your Honor.

[00:22:34] Speaker 02:
If we sent this case, just your part of it, back to FERC, what would the result be?

[00:22:40] Speaker 03:
I assume, Your Honor, FERC would decide whatever it eventually decides in the 2010 case.

[00:22:47] Speaker 03:
Well, it's already decided that.

[00:22:50] Speaker 02:
That's on rehearing now.

[00:22:51] Speaker 03:
It's on rehearing.

[00:22:52] Speaker 03:
But it would apply for 2007.

[00:22:56] Speaker 03:
In other words, if the LPSC gets relief on the 2010 complaint, FERC has said in the order in that case, you will not get retroactive relief.

[00:23:08] Speaker 03:
You will only have prospective relief because we're now going to treat this as a filed rate.

[00:23:12] Speaker 03:
And unlike all other formula tariffs, we're going to say we can't adjust anything

[00:23:18] Speaker 03:
for justness and reasonableness in this terror.

[00:23:21] Speaker 02:
So you think you'd be entitled to compensation?

[00:23:25] Speaker 02:
Is that the idea?

[00:23:27] Speaker 03:
Well, Your Honor, you would have to read the accounting.

[00:23:29] Speaker 03:
It seems to me that if that were to, my real point with regard to this is that if this court affirms what FERC did, LPSC has lost its rights for 2000, 2007.

[00:23:43] Speaker 03:
And the 2010 complaint, the best that can produce is 15 months of refunds.

[00:23:51] Speaker 03:
And we're now in 2015.

[00:23:52] Speaker 03:
They're just holding this case on rehearing.

[00:23:55] Speaker 03:
It would be our position that if you're going to rely on the initial decision of FERC, the first order in the 2010 complaint case, please read it.

[00:24:11] Speaker 03:
and see the machinations that FERC went through to avoid confronting the effect of these costs on the wholesale tariff.

[00:24:21] Speaker 03:
They are in charge of making the wholesale rates just and reasonable.

[00:24:25] Speaker 03:
That's what they're supposed to do.

[00:24:26] Speaker 03:
You cannot allow five different regulators to decide allowances for whatever parochial reason and still for that tariff to accomplish its purpose.

[00:24:39] Speaker 03:
So I mean, it is true that punt, punt, punt, and now we've got a case, we'll actually decide that it won't apply retroactively.

[00:24:49] Speaker 03:
Well, that's a denial of rights.

[00:24:55] Speaker 02:
OK.

[00:24:55] Speaker 02:
Which one?

[00:24:57] Speaker 01:
With respect to the question on interest and the rehearing petition, the first finding ordering interest is Joint Appendix 129.

[00:25:08] Speaker 01:
It's a single sentence.

[00:25:09] Speaker 01:
It comes out of nowhere in contrast to its prior holding.

[00:25:12] Speaker 01:
On rehearing, we raise the two points that you would raise if you were challenging it in court.

[00:25:17] Speaker 01:
One is it's inconsistent with your prior order in this case.

[00:25:20] Speaker 01:
Two is, it's inconsistent with your other orders.

[00:25:22] Speaker 01:
We didn't, in addition, we submit, have to argue that it's not supported by a number of this Court's orders.

[00:25:29] Speaker 01:
It was an abrupt reversal.

[00:25:30] Speaker 01:
On Ms.

[00:25:31] Speaker 01:
Perry's point about the union electric contract and considering our evidence, I would commend to you paragraph 36, which is the only place where any evidence is discussed, and it starts with the statement that we criticize the FERC for not reviewing our evidence.

[00:25:46] Speaker 01:
It then proceeds to review the evidence of the other parties.

[00:25:49] Speaker 01:
And it concludes by saying, we've given it all away.

[00:25:52] Speaker 01:
Well, ignoring it is not giving it away under this court's decision in Southwest Power Pool B4.

[00:25:58] Speaker 01:
Thank you.

[00:25:59] Speaker 04:
Thank you, gentlemen.