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investigations of energy industry market practices
In the wake of allegations about price manipulation and actual withholding of electric power and natural gas in the California market by large energy generators and natural gas suppliers, there are a number of investigations underway by state agencies and federal regulatory authorities. The state investigations are spearheaded by the California Public Utilities Commission (CPUC) and the State Attorney General. The federal investigations are being conducted by the Federal Energy Regulatory Commission (FERC), and sources say the Federal Trade Commission (FTC) is lending a hand with the complex financial transactions that abound in the new energy marketplace.

All the investigations are searching for evidence of price manipulation or outright gouging of ratepayers in violation of fraud statues or the Federal Power Act's "just and reasonable" rate standard. Combined with the private lawsuits filed on behalf of ratepayers and a variety of municipal governments, it becomes easier to understand why some energy companies are proposing settlements for less than the millions of dollars owed them by the state of California, in the hopes that such settlements might lessen their exposure to future legal action.

Here is a summary of some of the major investigations and controversies with links to relevant articles:

EL PASO, Inc.

NEW YORK TIMES SPECIAL REPORTS

Power Woes Raise Questions Over Control of Gas Pipelines
March 26, 2001
By RICHARD A. OPPEL Jr. and LOWELL BERGMAN

Many industry officials question whether regulated pipeline companies are able to favor unregulated sister companies that trade natural gas and are free to maximize profits.

This Houston-based natural gas company is accused of manipulating the energy market in California by withholding capacity through its natural gas pipeline. The pipeline is the largest single source of natural gas for California and capable of providing up to one third of the state's needs for this commodity. The supply and price of natural gas is especially important to California because of the large number of power plants in the state that use gas to produce electricity. The California Public Utilities Commission (CPUC) filed a complaint with the Federal Energy Regulatory Commission (FERC) last April accusing El Paso of trying to corner the natural gas market and manipulate the price through its control of pipeline capacity.

After a contentious hearing at the end of May in which the FERC administrative law judge questioned the veracity of a top El Paso executive, El Paso's Chairman, William Wise, was called to testify about the issue. Last week another El Paso executive confirmed that the company did not make all its capacity available to potential customers. The complaint filed by the California PUC and joined by PG&E and Southern California Edison--California's largest utilities--could result in massive refunds to the state and fines against El Paso. The judge's ruling is expected on June 30th. That ruling will be reviewed by the commissioners of the FERC.

UPDATE

On September 23, 2002, the FERC administrative law judge ruled that the El Paso Corporation had engaged in "the unlawful exercise of market power." It is the first ruling by a federal official concluding that there was widespread manipulation of the California energy market by suppliers. Judge Curtis L. Wagner determined that the El Paso had used only 79% of the capacity of its pipeline, which, he said, "shows a clear withholding of substantial capacity" which contributed to rising gas prices in the California. The decision will be reviewed by the FERC commissioners, and possibly a federal appeals court, if the commission upholds the ruling.


Other Reports

Energy Company Chairman Testifies on California Sales (Bloomberg News)
The chairman of the El Paso Corporation, William A. Wise, shed some light on a transaction that California officials say was used to drive up natural gas prices in the state.

Natural gas price squeeze: Report says supplier manipulated market (San Francisco Chronicle)

How Texas firm outfoxed state, PG&E (San Francisco Chronicle)



DUKE ENERGY

NEW YORK TIMES SPECIAL REPORTS

Power Concern Offers California a Secret Deal
May 2, 2001
By JEFF GERTH and LOWELL BERGMAN

Duke Energy, a power-generating company accused of overcharging customers millions of dollars during California's year-old energy crisis, has secretly offered Gov. Gray Davis a deal that it hopes will solve its legal problems while helping to calm the state's chaotic electricity markets.

As part of the joint reporting effort with FRONTLINE, The New York Times revealed in May that Duke Energy was engaged in secret settlement negotiations with the California Governor's office. The Duke discussions with the governor's inner circle sought to end investigations and possible legal action concerning allegations that Duke overcharged for electricity in California. In return for the settlement, Duke would agree to "sharing pain," making an "appropriate payment" and "embracing the governor's political and public relations needs," according to documents prepared by Duke's lawyers.

Duke subsequently released some of the documents to the public and posted them on their web site.

In a March 23 letter to the Governor's office, Duke's attorneys wrote that Duke's average price for sales in California during 2000 was $77.47/megawatt hour and that the company, "by and large, was not a significant recipient of the exceptionally high prices" which occurred in the California markets after April, 2000. However, the Charlotte Observer and the San Francisco Chronicle subsequently reported that in January 2001, the company sold electric power to California at $3,880 per megawatt hour.

California officials say investigations of the energy generators, including Duke, are ongoing.

Other Reports

How energy giant tried to cut a deal (San Francisco Chronicle)


DAVIS/FERC CONFLICT

NEW YORK TIMES SPECIAL REPORTS

Power Trader Tied to Bush Finds Washington All Ears
March 25, 2001
By LOWELL BERGMAN and JEFF GERTH

Enron, the nation's largest electricity trader, has become close enough to the Bush administration to possibly have influence on federal energy policy.


Senator Calls for Hearings Into Energy Regulators' Moves
May 26,2001
By CHRISTOPHER MARQUIS

Accusing federal regulators of not doing their job,Senator Dianne Feinstein called today for hearings into possible improprieties between members of the Federal Energy Regulatory ommission and private energy interests.

California Governor Gray Davis and the Federal Energy Regulatory Commission (FERC) are engaged in a running war of words about the need for price caps on wholesale electricity prices to help California's dire financial situation. On May 29th, Davis raised the stakes by threatening to sue the regulators in federal court if they fail to take action and implement price caps soon. Davis says California will spend over $50 billion on electricity this year. Some estimates run as high as $70 billion.

Also, the swing in control of the Senate from Republicans to Democrats raises the probability, according to sources, that Senator Joseph Lieberman will soon announce Senate hearings first called for by Democrat Dianne Feinstein of California. The hearings would focus on the FERC and its enforcement record in the electricity and natural gas markets. Spurred by another New York Times/FRONTLINE story about the FERC and the lobbying of Enron Chairman Ken Lay, the hearings are expected to look into the relationship of energy suppliers, generators and marketers to the commission.

Other Resources

Governor Davis letter to the FERC
In a letter to FERC Chairman Curt Hebert, Davis criticizes FERC for refusing to institute wholesale price caps, and says that although he applauds the FERC's order that the power wholesalers refund the California utilities for overcharging, "these refunds, if ultimately made, represent a tiny fraction... of the overpayments made in a wildly dysfunctional market."

Davis threatens to sue regulators to get price limits (San Francisco Chronicle)



POWER PLANT RAMPING

The steep price rises in the California electricity market spawned investigations by the California Public Utilities Commission into the "ramping" of power plants - the practice of manipulating the output of electricity plants by stopping and starting production to create artificial shortages. Investigators are looking into whether power generators game the system by increasing and decreasing a plant's output to maximize profit instead of to fit California's energy needs. The state PUC and the state attorney general are also investigating a rash of plant "outages" that plagued California this past winter. One economist for the state power authority, the ISO or Independent System Operator, says the outages occurred at a rate five times the normal pattern. Taking plants completely off-line is another alleged practice that was used to keep prices high.

The energy companies mentioned in the outage and ramping reports, including Duke, Reliant and Dynegy, vigorously deny the charges. They claim that the energy crisis is forcing them to run their plants flat out, causing them to skip scheduled maintenance on the plants and causing breakdowns, which in turn is why the plants are sometimes offline. The California Attorney General and PUC investigations have been supplemented by ongoing hearings in the state legislature. For the first time, the FERC has also begun to take a more active role in the investigation of possible manipulation of supply.

Other Reports

Power juggling ramped up price; Insiders say manipulation also strained equipment (San Francisco Chronicle)

Power plant 'ramping' to be probed; State senators also expected to file suit, charging federal regulators with failing to ensure fair rates (San Francisco Chronicle)



OVERCHARGES BY POWER GENERATORS AND MUNICIPAL UTILITIES

NEW YORK TIMES SPECIAL REPORTS

Some Evidence of Overcharges
March 23, 2001
By JEFF GERTH

California utilities paid $6.2 billion above competitive prices for wholesale electricity over the last 10 months, according to estimates filed today by the operators of the state's power grid.

In March, the California Independent System Operator, or ISO, which operates the state's power grid, charged in a report that power generators had overcharged the state by $6.2 billion during the year 2000. Frank Wolak, the Stanford economist who prepared the report, told FRONTLINE that the figure is now in excess of $7 billion. The ISO used the estimates to try and spur federal regulators to take some action against the generators, including ordering refunds. The FERC responded by ordering the generators to justify $126 million in alleged excess charges. So far the FERC has not obtained any refunds. Last month there was an $8 million fine collected from the Williams Company in settlement of allegations that they withheld electrical power.

In another twist, Governor Davis accused California's municipal utility districts, which are basically city-owned power companies and operate independently of the ISO, of charging as much or more for their excess electricity as the out of state power generators. Davis says the municipal utilities should provide the power they do not need for their citizens to the state at cost, not at the premium the other power generators are charging. If they refuse, he is threatening to seize their excess power. The municipal utilities expressed shock and outrage at the threat and noted that Davis' chief energy advisor is David Freeman, the former head of Los Angeles' municipal utility. Private generators point out that the Los Angeles Department of Water and Power, the federal government's Bonneville Power Administration and Canada's B.C. Hydro have all been named by the FERC as among those generators that overcharged California.

Other Reports

Energy Cost Study Critical Of Public Agencies Too (Los Angeles Times)

Municipal utilities warned Governor says he'll seize excess electricity if prices don't come down (San Francisco Chronicle)

Municipal utilities lambaste Davis threat to seize power (San Francisco Chronicle)



ENRON SUPREME COURT CASE

In March of this year, the Supreme Court agreed to hear a case involving a division of Enron, Enron Power Marketing against the Federal Energy Regulatory Commission (FERC). This case involves Enron's longtime goal of opening up the interstate transmission grid--the high-powered electrical power lines that criss-cross the country--to all parties. Enron claims the FERC has regulatory control over the transmission grid, and therefore, the obligation to force companies with regional control over some power lines to open them up to competition. Enron believes the power grid should work like the interstate highway system, and that FERC has the authority to regulate it. At the same time the court agreed to resolve a competing case brought by the state PUCs against the FERC and its order mandating that transmission lines should be part of its policy of "open access."

The FERC Order 888 does not go far enough according to Enron. The current chairman of FERC Curt Hebert does not believe that FERC has the statutory authority to force states to provide "open access" to their transmission lines and believes their participation in what are called "regional transmission organizations" should be voluntary. Enron and the presumptive new chairman of the FERC Pat Wood maintain the FERC already has that authority.

For more information

U.S. Supreme Court Docket Sheet

U.S. DC Circuit Court of Appeals opinion in 1999



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