Tri-State files exceptions to Colorado Public Utilities Commission's Recommended Decision
- Tri-State cites significant procedural, legal and policy flaws in Recommended Decision on complaints filed by two cooperative members over contract termination costs.
- CPUC ALJ's Recommended Decision fails to address jurisdictional issues, excludes affected parties and key testimony, and ignores due process requirements under Colorado law.
- Tri-State asks CPUC to reject Recommended Decision and dismiss the complaints - or take steps necessary to conduct a new proceeding consistent with applicable law.
(July 30, 2020 – Westminster, Colo.) – Citing a process and ruling plagued by numerous procedural, legal, and policy flaws, Tri-State Generation and Transmission Association today filed exceptions to a July 10 Recommended Decision issued by a Colorado Public Utilities Commission (CPUC) administrative law judge (AJL) on complaints filed by United Power and La Plata Electric Association.
In its filing of exceptions, Tri-State asked the CPUC to dismiss the complaint and reject the Recommended Decision, citing the decision's failure to: address the key question of jurisdictional authority; develop a complete record as a result of excluding affected parties and key testimony from the proceedings; and recognize due process requirements, including the unfairness created by the CPUC being a litigant on the same issues at the federal level.
"The CPUC should dismiss the complaints because its jurisdiction to enter an order that directly affects Tri-State's wholesale rate is preempted by the Federal Power Act," said Tri-State Chief Executive Officer Duane Highley.
United Power and the La Plata Electric Association signed long-term power contracts with Tri-State in 2007, and agreed to share the costs of power supply with Tri-State's other utility members though the terms of their contracts, which end in 2050. In November 2019, the two utilities filed complaints asking the CPUC to set a cost to terminate their contracts early.
In its exceptions, Tri-State makes clear that, if the CPUC does not recognize the jurisdictional authority of Federal Energy Regulatory Commission (FERC) under the Federal Power Act, it must nonetheless be guided by a recent July 10, 2020, decision by the District of Columbia Circuit Court of Appeals. In that decision, the court reaffirmed FERC's exclusive jurisdictional authority over wholesale rate issues and practices affecting such rates.
FERC affirmed its jurisdiction over Tri-State on March 20, 2020, and over its Contract Termination Payment (CTP) methodology on June 12, 2020.
"If the CPUC declines to dismiss the original complaint, then it must dismiss the Recommended Decision. It must re-notice the complaints and conduct a new proceeding in which Tri-State may present its CTP methodology. It must allow intervention by all parties whose interest will be substantially affected, and takes such other steps that are necessary to conduct a proceeding consistent with applicable law," Highley said.
Tri-State also explains in its exceptions that the Recommended Decision is the product of an insufficient and prejudicial process that welcomed extensive testimony from the two complaining members, while denying 29 other Tri-State members located across Colorado, Nebraska, New Mexico and Wyoming the ability to participate as parties and protect their substantial interests.
"If this recommended decision is allowed to stand, more than $1 billion in costs will be unjustly added to our remaining members' electricity bills. In an effort to save money for themselves, United Power and LPEA are a step closer to forcing costs they agreed to pay onto smaller, less wealthy utilities and their rural consumers," Highley said.
In addition, Tri-State noted that while this proceeding has been pending, the CPUC has taken litigation positions that are in opposition to Tri-State in its FERC proceedings, involving the very same parties and focused on the very same issues as being contested in Colorado. This conduct directly undercuts the core due process requirement of "neutral decision-maker" under Colorado law.
"The CPUC is not a neutral decision-maker because of its participation at FERC as litigant on the very same issues," Highley said. "The commission's arguments at the FERC suggest, if not demonstrate, that it has pre-judged Tri-State's motivations, as well as facts related to aspects of Tri-State's approach to member withdrawals, all of which are central to the CPUC's proceedings."
Tri-State is a not-for-profit cooperative of 45 members, including 42 member utility electric distribution cooperatives and public power districts in four states, that together deliver reliable, affordable and responsible power to more than a million electricity consumers across nearly 200,000 square miles of the West. For more information about Tri-State and our Responsible Energy Plan, visit www.tristate.coop.
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