Exelon, FirstEnergy Fleeing “Free Market”

During the HB2201 fight, we have heard a lot of WV legislators and power company lobbyists bloviating about “the free market.” In the electrical industry right now, no power companies support free markets.  They are all pushing as many of their assets into state regulated monopolies as possible to protect their shareholders from new competition from innovation and decentralization.

I have covered Exelon’s attempt to take over Pepco Holdings in an earlier post.  Pepco Holdings owns small utilities in NJ, DE and East VA, but the big fight will be in MD and DC, in the heart of Pepco’s customer base.  MD and DC PSCs are right in the middle of their merger cases.

Last week, the state of MD filed its brief in the MD PSC case.  The brief is a scathing but well argued case for rejection of Exelon’s merger bid.

After twelve (12) days of hearings, the receipt of testimony from dozens of witness, and the development of a record that spans several thousand pages, the answer to this question is clear: Maryland and its ratepayers will not be “better off’ if the merger is completed-unfortunately, the opposite is likely true. The merger enjoys no support from the State or numerous affected stakeholders. This is not surprising-other than a $54 per customer rate credit, there is nothing in this nearly $7 billion transaction that is of tangible benefit to customers or Maryland’s economy. Worse, the transaction poses significant potential harms, and Applicants’ commitments fail to mitigate them. Indeed, implementation of certain of the commitments could make things worse than would otherwise be the case.

Two of the main issues in the case involve Exelon’s lack of commitment to Pepco’s system reliability and to supporting innovation and development of more distributed generation, including small scale solar power.  Here is what MD officials have to say on these subjects:

Reliability. Applicants promise to improve reliability in the Pepco/Delmarva territories, subject to a spending cap-actions which will allegedly provide almost $500 million in economic value in the form of reduced outages. Evidence adduced at trial shows that these claims are false. Contrary to the assumption of its own expert witness, Exelon revealed that it has no “engineering plan” supporting its reliability targets, and will need at least six months in the field to ascertain what reliability improvements can be achieved, by when, and at what cost.

Needed reliability projects may be delayed, and reliability may suffer as Exelon brings itself up to speed.

Worse, unlike pending proposals from Pepco and Delmarva, and contrary to Commission regulations, Exelon’s reliability commitment includes no targets for 2015,2016, or 2017, and no annual targets for 2018, 2019, or 2020. In fact, Exelon’s proposal would not bind it to any reliability target until the end of 2020, roughly five years after consummation of the merger. A Pepco or Delmarva customer experiencing a power outage in the meantime is unlikely to care whether Exelon can meet a “three-year average” atthe end of 2020.

And, if Exelon fails to meet its commitment, then the Company-not the Commission-gets to determine when any penalty is imposed, based on when Exelon files a rate case. Even if this regimen were acceptable, Exelon’s commitment is based on internal annual goals that are in some instances indisputably less stringent than the annual standards already proposed by Pepco and Delmarva, rendering the commitment a harm rather than a benefit. And whatever can be achieved will come with an unknown price tag. Exelon’s budget “commitment” is no more than a promise to seek Commission approval to raise rates even further if Exelon needs more money than it thought-which is likely given that Exelon is yet to perform what it considers to be essential engineering studies. Rather than taking responsibility for these unknown risks, Exelon expects customers, not shareholders, to bear them.

Competition and Innovation. Post-merger, Exelon will control service to 80% of the State’s ratepayers. Internal documents show that Exelon plans to operate its distribution utilities to protect the Company’s massive, multi-billion dollar investment in unregulated generation (including its economically challenged nuclear plants) by seeking to control the pace of distributed energy resource (DER) penetration in retail service territories. The State’s testimony demonstrates that Exelon has both the incentive and, through its utilities, the ability to stifle the implementation of innovative, customer-driven DER, including resources that may improve service reliability. And the contrast could not be more stark: pre-merger, PHI was developing a “Utility 2.0” plan, but that effort is now on hold; Exelon-affiliate Baltimore Gas & Electric (BGE), on the other hand, possesses not a single piece of paper concerning this initiative. The stakes are high: the competitive issues raised by the merger involve the future of Maryland’s electric industry at a time of transformative change. That future is better served by Pepco and Delmarva offering proposals and insights uncompromised by the need to protect Exelon’s merchant generation. As the industry moves toward the distribution “utility of the future,” Maryland’s regulated utilities should be focused on embracing-not undermining pro-consumer reforms. Applicants’ commitments ignore this issue entirely, and there is no meaningful way to mitigate the attendant harms.

MD is an “deregulated” state, unlike WV.  Pepco, as it now exists, does not generate any electricity of its own, so the company is free to seek the lowest cost electricity on the market.  Exelon, however, owns big and obsolete generating plants.  A merger would re-integrate Pepco into a company that owned generation and transmission.

This vertically integrated structure is exactly what causes a lot of our problems here in WV.  AEP and FirstEnergy are free to charge all the costs of their high-cost, obsolete coal burners to WV rate payers.  The situation is a little different with Exelon and Pepco, because Exelon owns nominally “independent” merchant generating plants that wouldn’t provide electricity directly to Pepco. However, Exelon would manage Pepco in such a way that Pepco’s policies would not undermine the value of its generating plants through incentives for solar generation or energy efficiency.

Exelon is seeking to capture Pepco, because Pepco is a stable company that is regulated by state PSCs.  Distribution-only companies like Pepco do have their rates and costs regulated, even in “deregulated” states, because these companies sell electricity directly to retail customers.  Exelon is “investing” in Pepco, because it no longer wants to invest in power plants that have to operate in the free market.  Exelon has learned that its generation technologies are obsolete and cannot compete in a fair and open marketplace, so the company is seeking monopoly markets where its profits are protected by government regulators.

If you want to see another power company holding company that can’t hack “the free market,” look no further than Cathy Kunkel’s assessment of FirstEnergy’s situation:

FirstEnergy’s most recent quarterly numbers and its outlook for 2015 are both dismal and in line with a report we published last fall, “FirstEnergy Seeks a Subsidized Turnaround.”

If anything, FirstEnergy’s problems have only gotten worse since we issued our report:

  • FirstEnergy’s net income (revenues less expenses) continues to decline. Here’s the spiral: From $869 million in 2011 to $392 million in 2013 to $299 million in 2014.
  • Its earnings per share fell to its lowest point in a decade. Earnings per share in 2014 were $0.51, down from $0.90 in 2013.
  • Its long-term debt, already among the highest in the utility industry, increased from $15.8 billion in 2013 to $19.2 billion in 2014, and on its fourth-quarter earnings call, the company’s chief financial officer conceded that the parent holding company is carrying more debt than “we are comfortable with.”

FirstEnergy’s weak performance stems from its merchant generation business, which is dominated by obsolete coal-fired generation that is struggling to compete in the wholesale power markets. FirstEnergy’s merchant generation segment posted negative net income in 2014 — even more negative than in 2013.

And how did FirstEnergy respond to its disastrous free market experience?

In the company’s fourth-quarter earnings call, executives emphasized how it is relying on a proposed power-purchase agreement in Ohio to improve its financial performance. Under the proposal, FirstEnergy’s regulated electricity distribution companies would enter into a 15-year agreement to purchase power from several of FirstEnergy’s merchant power plants at a fixed price. In other words, Ohio electricity customers would be required to subsidize these plants—by paying more than the market price for their output—so that FirstEnergy can keep operating them. In its testimony to the Public Utilities Commission of Ohio, FirstEnergy stated very clearly that the reason it is angling so hard for ratepayer subsidies is that “markets have not, and are not, providing sufficient revenues to ensure continued operation of the plants.”

Until recently, FirstEnergy was a vociferous champion of free markets, a stance it began to express when electricity markets were deregulated in Ohio in 2000. FirstEnergy has taken a big step back from that rhetoric now that the free market is not working out for the company. In that fourth-quarter earnings calls, a few words in particular from Chuck Jones, FirstEnergy’s new CEO, spoke volumes: “We trust the regulator to look out for a future Ohio more than we do the markets.”

The company’s bet on ratepayer subsidies might not pan out. The Public Utilities Commission of Ohio (PUCO) last week ruled against a very similar proposal by American Electric Power, noting that the AEP pitch would have raised rates without offering any additional benefits to Ohio electricity consumers.

And if you think power companies’ anti-free market actions are something new, take a look at what I wrote in 2009.  The fact is that free market rhetoric has been a smokescreen for monopoly strategies from the beginning of the US shareholder-owned electric power industry.

“Kemptown” Substation at Mt. Airy Shot Down in Frederick County

Here is Ginny McColl’s MacColl’s (sorry for the earlier spelling error, Ginny) Facebook post in its entirety:

It’s official! Zoning Text Amendment #ZT-12-14 – passed unanimously by the Board of County Commissioners. An electric substation of 500kV or more must be in a LI or GI (industrial) zone, not AG!! Also, the Board of Appeals may take into consideration homes within 1000 feet of a special exception.

Ginny and all the other Citizens Against the Kemptown Electric Substation (CAKES) have won their great victory in Maryland.

This victory removes a huge weight that still hung over the heads of Mt. Airy’s homeowners.  PATH was just one of many high voltage transmission lines that FirstEnegy wanted to connect at the proposed substation.  The elimination of PATH did not necessarily mean the elimination of the substation.  Now, the Frederick County Zoning Board of Appeals Commission has killed the substation too.

Will AEP/FE try to claim that buying the land for the substation was “prudently incurred” when they didn’t even apply for a zoning exception until after they bought the property?  What prudent person in their right mind would do that?  You can bet they will try to make us pay for this huge mistake, as well as PATH.

Update:  Ginny has added a link to the Frederick News Post story here.

Mt. Airy Substation Dead – PATH Has Lost Eastern Terminus

Ginny MacColl, our great friend over at CAKES, reported today that AEP/FirstEnergy’s 30 day deadline has passed to appeal the Frederick County Circuit Court ruling upholding the local Zoning Board of Appeals’ rejection of the Mt. Airy substation.  The power companies failed to appeal in the appointed time, so the Circuit Court judge’s ruling will stand.  AEP/FirstEnergy cannot build their PATH substation near Mt. Airy as planned, which the power companies called the Kemptown Substation.

This is a great victory, and another sign that PATH is dead.

Now we need to ask why AEP/FirstEnergy wasted rate payers’ money on a land purchase without getting zoning approval first.  Oh, and we are all paying for this multi-million dollar mistake through PATH’s federal cost recovery process, on which AEP/FirstEnergy also collect a guaranteed return on equity of over 12%.

AEP/FirstEnergy own a nice piece of farm land in the middle of 1500 residential properties.  All they can do is farm it.  And we’re paying them to do it.  PJM and FERC need to kill this useless boondoggle once and for all.

Here’s a link to more from the Frederick News Post.

Frederick County (MD) Circuit Court Affirms Zoning Board of Appeals

I have received a report that a decision was filed today in Frederick County Circuit Court affirming the decision by the Frederick County Board of Zoning Appeals which denied a special zoning exception to the huge substation that AEP/FE has planned near Mt. Airy, MD.  The substation, called the Kemptown Substation by AEP/FE, was to have been the eastern terminus of the failed PATH line.

Here’s the report in the Frederick News Post.

This is one more nail in the PATH zombie’s coffin.

Eyewitness Account of Frederick County Zoning Appeal Hearing

Keryn and several other West Virginians headed over to Frederick, MD to take in the AEP/FE appeal of the Frederick County Zoning Board of Appeals’ denial of a special zoning exception for the proposed giant substation near Mt. Airy, MD.

Keryn has a great eyewitness summary of the hearing at StopPATH WV.  As usual with Keryn’s work, you won’t find a more thorough, or entertaining, account in any other media outlet.

Frederick Zoning Appeal Hearing Date Set for Nov. 14, 2011

CAKES has the latest on the AEP/FE appeal of the Frederick County Zoning Board of Appeals decision to reject the proposed mega-substation near Mt. Airy in Frederick Co., MD.

The date has been set by the Circuit Court for Frederick County to hear Potomac Edison’s appeal of the Board of Zoning Appeals’ decision to deny Potomac Edison’s request for a zoning exception to construct the “Kemptown Substation”.   The hearing will be held on Monday, 11/14/2011 at 9:00 AM.

Two Important Power Company Observations in MD Zoning Appeal

The MD zoning appeal by AEP/FE also included some important opinions that should be noted.  AEP/FE lawyers describe the Mt. Airy substation opponents as “well-organized and extremely vocal.”  We should all take that as a compliment.  Thanks you, power companies, we’re glad you noticed.

The other statement in the AEP/FE pleading is “Petitioner is pursuing this judicial review because PATH cannot be built without the Substation.”  If they can’t build the substation at Mt. Airy, they can’t build PATH.  That’s kind of a moot point, because they can’t build PATH anyway at this point, but everyone involved in the PATH fight should note how important the zoning fight in MD is to all of us.

A Closer Look at Power Company Misrepresentations in MD Zoning Case

Keryn has taken a close look at the power companies’ pleadings in their attempt to appeal the ruling of the Frederick County Zoning Board of Appeals.  She has posted the outrageous claims of the power companies on StopPATH WV’s blog.  Here is the link.  Keryn is a much better reporter of this situation than I am, because she personally attended the zoning hearings that AEP/FE are whining about.

Here are some of the howlers that Keryn found in the power company pleadings.

The Substation is permitted as a special exception in an A zoning district and is part of a larger project to be constructed in Maryland, West Virginia and Virginia that will ultimately improve the reliability of the electric transmission grid in Maryland and the mid-Atlantic region.

Oh yeah?  How can PATH be a project “to be constructed” when it has no current regulatory cases in any of the states where it was to be built?  How can PATH “be constructed” if it no longer appears in PJM’s RTEP?  And, of course, the biggest misrepresentation here is that PATH will “ultimately improve the reliability of the transmission grid” when it will do just the opposite.

…opponents, including nearby residents, environmental groups, and activists from  Maryland and out of state, offered subjective, emotional, and anecdotal arguments against the Substation and the motives of the Petitioner, and generally in support of a NIMBY position.

In fact (and Keryn is an eyewitness, so she knows better than I), witnesses at these zoning hearings presented coherent arguments referring directly to PJM’s planning process, demand reduction on PJM’s system, the unreliability of expanding the transmission grid, and other fundamental technical issues.  To characterize the testimony as NIMBYism is a blatant falsehood.

When authorized by the Maryland Public Service Commission, Petitioner will construct, operate, and maintain PATH in Maryland.

Here is a more accurate statement “IF authorized by the Maryland Public Service Commission, Petitioner WOULD BE ABLE TO construct, operate, and maintain PATH in Maryland BUT THERE IS NO APPLICATION CURRENTLY BEFORE THE PSC FOR THIS PROJECT.”

Keryn has lots more detail and outrageous claims by AEP/FE on the StopPATH WV blog.

Power Companies’ Appeal of Frederick Co. Zoning Ruling on Mt. Airy Substation Heating Up

A report on CAKES’ Facebook page indicates that AEP/FE have filed their brief in their appeal of the Frederick Co., MD zoning ruling that is preventing them from building their “Kemptown” substation near Mt. Airy, MD.  The power companies are appealing last December’s ruling by the Frederick County Board of Zoning Appeals, backed up by the County Commission, which prevented any change in the zoning status denied a special exception to the agricultural zoning status of the farm land they purchased for their industrial facility which they call the Kemptown Substation.  The substation was to be the eastern terminus for PATH and also included at least two empty “bays” to tie in other high voltage transmission lines connecting to the east coast.

As you can see from the comments under the post, Frederick County citizens are itching for a fight.  West Virginians should follow this case, because if the power companies can’t build this substation, it will be even more difficult for AEP/FE to revive the PATH zombie, or any other bad idea transmission project they are cooking up at PJM.

Oh yeah, we are all paying for AEP/FE’s stupid mistake buying farmland before they had resolved these zoning issues.  No one who has followed the PATH project should be surprised at this kind of waste.

MD PSC Bows Out – Fails to Protect Citizens

Yesterday, the MD PSC issued its final order approving the withdrawal of the PATH application by AEP/FE.  This brief decision represents the same cowardly failure that we saw from the WV PSC back in March.

Contrast the orders from the WV and MD PSCs with the final order issued by the East Virginia SCC at this link.  The SCC imposed conditions on any PATH re-application that would preserve important data and allow the SCC to accurately evaluate alternatives to simply building a new transmission line.  The SCC’s conditions were reasonable and offered clear protections for the fair and thorough process that the SCC is required by East Virginia law to carry out in protecting the state’s citizens from foolish and predatory corporate behavior.

Not so in MD and WV.  MD PSC Chairman Nazarian refers only to “bad faith” as a reason to impose conditions on a PATH re-application in MD.  That argument is almost a bizarre non sequitur in light of the SCC’s requirements.  The power companies have certainly acted in bad faith throughout the PATH regulatory process, that concern is certainly far down the list, well below the simple duty the PSC has to perform effectively to protect the state’s citizens.

This Is What Happens When a Power Company Lawyer Is NOT the Chairman of Your PSC

In MD, citizens actually have a chance to put forward helpful ideas about how to save taxpayers money the next time power companies apply for a high voltage transmission line.  And you know what, they are some pretty darn good ideas too —

From the MD Office of People’s Counsel:

The Office of People’s Counsel does not oppose Applicant’s Motion but requests that it be granted on the condition that Applicant be required to produce to the parties on the Service List in this proceeding (i.e. Case No. 9223) all results of the modeling runs and analyses recently undertaken by PJM which the PATH entities were ordered to produce by March 15, 2011, in Case No. PUE‐2010‐00115 before the Commonwealth of Virginia State Corporation Commission (“VSCC”), as ordered in the VSCC Hearing Examinerʹs Ruling of January 19, 2011, a copy of which has already been entered in the record of these proceedings.

From The Sugarloaf Conservancy:

In light of the foregoing, and also for the reasons advanced in Sugarloaf’s Motion to Dismiss, Sugarloaf asks that the Commission impose the following conditions upon the Applicant for any future application for a CPCN for the subject project:
a. A third-party independent analysis of the subject project and alternatives,
including the costs associated with each;
b. A projection of peak power demand forecast of energy needs for 15 years;
c. A third-party independent analysis ofPJM’s energy forecast;
d. For any substation associated with the project, proof that the Applicant has
obtained all applicable local zoning and land-use approvals necessary for the
substation to be located and constructed in the defined location;
e. Description of all additional future plans (whether or not a component of the
PATH project) for any substation associated with the project.

5. Finally, Sugarloaf requests that, as a condition to, and regardless of, the Applicant’s withdrawal in the present matter, the Applicant be required to produce all results of the modeling runs that it was ordered to produce by March 15, 2011, in Case No. PUE-2010-00115 before the Commonwealth of Virginia State Corporation commission, as ordered in the Hearing Examiner’s Ruling of January 19, 2011 (attached hereto as Exhibit 1).

Too bad the WV PSC threw this kind of prudence aside and rushed to dismiss the PATH application in WV before any intervenors could suggest these kinds of good ideas.

AEP/FirstEnergy Throwing in the Towel

It’s over.  Here is the first paragraph from AEP/FirstEnergy’s press release:

American Electric Power (NYSE: AEP) and FirstEnergy Corp. (NYSE: FE) today announced their affiliates will file to withdraw their applications for state regulatory approval of the Potomac-Appalachian Transmission Highline (PATH) project following an announcement by regional grid operator PJM Interconnection that the project has been suspended. [emphasis added]

The whole PATH fiasco may be coming to a rapid close.

You will also note that the press release is now the only thing accessible on the PATH Web site.

Hearings in MD & East Virginia

AEP/Allegheny FirstEnergy’s little gambit last Friday didn’t work.  Thursday’s MD PSC hearing on their original request for a delay is going ahead as planned.  You can watch the hearing on line here.  StopPATH WV offers the following instructions once you get to the PSC site: “…look for the picture of the camera on the left hand side of the page that says “Watch PSC Proceedings”.  Click on it and it will take you into a live view of the hearing in progress.  The hearing is scheduled to begin at 10 a.m. and last until 1:00 p.m.”  This is a hearing to consider all open motions, so you will also get to see intervenors speaking in support of their motions to dismiss the PATH application in MD.

The East Virginia SCC has opened a new case, number PUE-2011-0003, on Dominion’s Mt. Storm to Doubs rebuild.  This is the last approval that Dominion needs before starting the project.  The SCC has scheduled two public hearings in the case.  The first hearing is in Winchester on April 5 and the other one is in Purcellville on April 6.  For more information go to the SCC case docket here.

You don’t have to live in East Virginia to speak at these public hearings.  If you are a WV or MD resident, and you think Dominion’s Alternative One is far superior to the failing PATH project, why not attend one of these hearings?  You can tell the SCC hearing examiner that you think the Mt. Storm to Doubs rebuild is a great idea and that the SCC should drop PATH and push PJM Interconnection to complete the other half of Alternative One, rebuilding Allegheny FirstEnergy’s Pruntytown to Mt. Storm line.

Alternative One is a no-brainer:  less than 1/3 the cost of PATH, requires no new land seizures and can be completed much more quickly with more local labor.

AEP/Allegheny FirstEnergy Want Delay of Delay Hearing in MD

The power companies have filed a motion to delay the February 24 hearing in MD about their earlier request to delay the MD PSC PATH case.  It looks like the situation in East Virginia is making them go weak in the knees.  Things don’t look good.  Here is a link to the motion.

Here’s what AEP/Allegheny FirstEnergy say in their motion:

Additionally, the Virginia Hearing Examiner ordered that the applicant file, by March 15,2011, updated analyses based on various scenarios and alternatives to the PATH Project (“Virginia Updated Analyses,,).4 PJM is in the process of completing the analyses necessary to comply with this order. The results of those analyses are expected to materially affect the in-service date projected for the PATH Project. [emphasis added]

So AEP/Allegheny FirstEnergy wanted their original delay because PJM reduced their demand projections, which everyone knew would cause PATH’s start up date to be moved into 2016 or later.  No one needed a delay to figure that one out, although the WV PSC Commissioners thought they did.  Now the power companies want a delay because the East Virginia requirement that they produce a real analysis (for the first time) of a range of alternatives will certainly raise new doubts about the whole PATH project.

Who needs a delay?  The MD PSC simply proceeds with their current schedule and incorporates the new East Virginia information when it becomes available after March 15.  What’s the problem here?

The big hotshot lawyers in Baltimore are running scared because, come March 15, the whole PATH project may blow up.  One thing is certain, there is no need to delay the MD case.

The “Congestion” Cabal Unraveled

Keryn has put her FERC Challenge information together with the MD Chamber of Commerce’s late filing as an intervenor with the MD PSC’s addled “congestion” petition and has come up with a very interesting post on StopPATH WV.

It turns out that the same law firm that represents the MD Chamber of Commerce also turned up on 2009 invoices as lobbying the MD PSC directly about the PATH case.  One wonders what directly lobbying the MD PSC means (if it doesn’t lead directly to ethics problems for the attorneys involved).  Could it mean a more or less direct connection between the MD PSC staff’s goofy “congestion costs” petition and the Chamber’s citing “eye catching” congestion costs in its recent late filed petition to intervene?

Whatever it means, it stinks.