United States of America s34

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UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

San Diego Gas & Electric Company, Docket No. EL00-95-031

Complainant

Sellers of Energy and Ancillary Service Into

Markets Operated by the California Independent

System Operator Corporation and the California

Power Exchange,

Respondents

Investigation of Practices of the California Docket Nos. EL00-98-030

Independent System Operator and the California EL00-98-033

Power Exchange

California Independent System Operator Docket Nos. RT01-85-000

Corporation RT01-85-001

Investigation of Wholesale Rates of Public Utility Docket Nos. EL01-68-000

Sellers of Energy and Ancillary Services in the EL01-68-001

Western Systems Coordinating Council

CAlifornians for Renewable Energy, Inc. Docket No. EL01-2-000

(CARE) Complainant

Independent Energy Producers, Inc. and All Sellers

of Energy and Ancillary Services into the Energy

and Ancillary Services Markets Operated by the

California Independent System Operator Corporation

and the California Power Exchange; All Scheduling

Coordinators Acting on behalf of the Above Sellers;

California Independent System Operator Corporation;

and California Power Exchange Corporation

Respondents

REQUEST FOR EXPIDITED CONSIDERATION OF

APPEAL OF ORDER OF CHIEF JUDGE DENYING ORAL

MOTION TO PARTICIPATE IN SETTLEMENT AND MOTION TO INTERVENE OUT-OF-TIME

Pursuant to Rules 214(a)(3) and 212 of the Rules and Practices and Procedures of the Federal Energy Regulatory Commission (“FERC”), 18 C.F.R. 385.214(a)(3) and 385.212, CAlifornians for Renewable Energy, Inc. (“CARE”), requests expedited consideration of appeal of the July 3, 2001 Order of Chief Judge Denying Oral Motion to Participate in Settlement, and hereby submits this Motion to Intervene Out-of-Time in regards to EL00-95-031.

The energy crisis has drastically changed, and will continue to drastically change California's electrical power market system that went into effect in 1996, commonly known as "deregulation" (which was actually a restructuring). One of the biggest contributing factors to the crisis is the manipulation of the 1996 model to allow gouging (primarily the raising of prices by withholding power during peak demand) of incredible magnitude and duration. This manipulation, and its accompanying gouging was and is being made possible by inherent flaws rendering the existing market system completely unworkable and in dire, immediate need of drastic changes.

Vast, fundamental uncertainties are the essence of the ongoing energy crisis. One of the leading uncertainties is the cost and availability of the natural gas needed to fuel new powerplants. The only thing the energy crisis has made reasonably certain, particularly since attaining emergency status, is that California will never return to the 1996 market model. It is also reasonably certain that whatever replacement market system California comes up with, it will be new and unique, with potentially significant impacts and mitigation measures that are also new and unique.

In light of these fundamental uncertainties, it is simply impossible to determine with any kind of accuracy what kind of electrical power market system California will end up with once the crisis is under control. Given the magnitude of the California energy crises and the ramifications for California’s consumers and the environment, CARE respectfully submits that good cause exists for granting CARE’s Motion to Intervene Out-of-Time in EL00-95-031. CARE has an interest in this docket, which cannot be adequately represented by any other party (e.g., State of California, Cal-PUC, Cal-AG, Cal-ISO, etc.), and requests the opportunity to protect its interest as they may appear. In addition, because CARE accepts the record as it now stands, granting of this Motion should prejudice no party.

INTRODUCTION

CARE summarizes the chronology of the events relevant to our appeal and Motion to Intervene Out-of-Time, as follows:

CARE filed a complaint with FERC on October 6, 2000 assigned to Docket EL01-2-000. This complaint is summarized as follows.

"Pursuant to Section 206 of the Federal Power Act, 16 U.S.C. § 824e, and Rule 206 of the Commission's Rules of Practice and Procedure, 18 C.F.R. § 385.206, CAlifornians for Renewable Energy, Inc. (CARE) hereby petitions the Commission to rectify unjust and unreasonable prices stemming from the wholesale markets for energy and ancillary services operated by the California Independent System Operator (CAISO) and the California Power Exchange (CalPX). CARE requests that the Commission find that wholesale markets in California are not currently workably competitive. CARE hereby petitions the Commission make findings that the events and circumstances surrounding the June 14, 2000 rolling outage in the San Francisco Bay Area warrant investigation by the United States Department of Justice of trust activities in restraint of trade by Independent Energy Producers, all sellers of energy and ancillary services into energy and ancillary services markets operated by the California Independent System Operator and the California Power Exchange; all scheduling coordinators acting on behalf of aforementioned sellers; California Independent System Operator Corporation; and the California Power Exchange. CARE hereby petitions the Commission make findings that the events and circumstances surrounding the June 14, 2000 rolling outage in the San Francisco Bay Area warrant investigation by the United States Department of Justice of alleged civil rights violations, by Independent Energy Producers, all sellers of energy and ancillary services into energy and ancillary services markets operated by the California Independent System Operator and the California Power Exchange; all scheduling coordinators acting on behalf of aforementioned sellers; California Independent System Operator Corporation; and the California Power Exchange. CARE petitions that said investigation include the identification of injury, loss of life, disability, or hospitalization associated with the June 14, 2000 rolling outage. CARE requests that this complaint be consolidated with Commission Dockets EL00-95-000, EL00-98-000, and EL00-104-000."

CARE amended its original complaint EL01-2 on October 31, 2000 to request the FERC, among other things, expand their investigation of the market behavior of market participants including the Investor Owned Utilities (IOUs).

CARE filed its Petition for Rehearing by e-mail to the FERC Secretary on January 14, 2001.

"CARE is making a good faith attempt (with our limited resources) to comply with the statutory requirement to file for rehearing within 30 days of your 12/15/00 Order. Pursuant to Rule 713 of the Commission's Rules of Practice and Procedure CARE hereby requests rehearing of the Commission's December 15, 2000 order in these proceedings EL00-95 et al ("December 15 Order"). As you probably already know, CARE is a California private, not for profit public-benefit 501(c)(3) corporation relying exclusively on public funding. At the present time, CARE simply does not have the resources to obtain legal counsel to fully, fairly, knowledgeably and meaningfully participate in your statutorily mandated administrative process. Therefore, CARE respectfully requests that your agency provide us with all available assistance to facilitate our public participation, including but not limited to an explanation of the administrative steps we must take in order to preserve and protect all our legal rights, particularly the right to have the issues we raise heard by a court of law in a legal proceeding to enforce our statutory and constitutional rights."

Secretary Boergers responded by e-mail on January 16, 2001 that CARE could not file for Rehearing via e-mail. CARE subsequently filed it Petition for Rehearing by hand delivery by courier service in Washington DC at great inconvenience and expense to petitioner.

CARE provides subsequent e-mail correspondence by Secretary Boergers.

“-----Original Message-----

From: David Boergers [mailto:

Sent: Tuesday, January 16, 2001 9:43 AM

To:

Subject: Re: CAlifornians for Renewable Energy, Inc. (CARE) Request for

Rehearing

** High Priority **

I didn't mention it, but you must be an intervenor to file for rehearing.

Is CARE an Intervenor? If not, you should attach a motion to intervene with

your rehearing request.”

CARE identified to the Secretary that “CARE was the complainant,” to which the Secretary responded via e-mail.

“-----Original Message-----

From: David Boergers [mailto:

Sent: Tuesday, January 16, 2001 3:40 PM

To:

Subject: RE: CAlifornians for Renewable Energy, Inc. (CARE) Request for

Rehearing

Since you are the filing entity you are a party and you don't need to

intervene.

>"Boyd, Mike" <01/16/01 06:25PM >

David,

What does this mean? I filed the original complaint EL01-2 back in

September. CARE was the complainant (by my signature). Does this make us an intervenor?

Mike Boyd”

On March 13, 2001 CARE submitted its official Alternative Dispute Resolution request for Cal-ISO

"CARE respectfully requests that your agency [FERC] provide us with all available assistance for an Alternative Dispute Resolution (ADR) with Respondent Cal-ISO, to facilitate resolution of our complaint, including but not limited to an explanation of the administrative steps we must take in order to preserve and protect all our legal rights, particularly the right to have the issues we raise heard by a court of law in a legal proceeding to enforce our statutory and constitutional rights."

CARE filed a complaint with FERC on April 12, 2001 assigned to Docket EL01-65-000, which is also relevant to the settlement negotiation. This complaint is summarized as follows:

On June 26, 2001 CARE contacted the office of Chief Judge Wagner to request access to the settlement negotiations by telephone. His Chief of Staff, Ruby Meek, provided me telephone access via the following e-mail.

“-----Original Message-----

From: Ruby Meek [mailto:

Sent: Tuesday, June 26, 2001 1:20 PM

To:

Cc: Hazel Anderson

Subject: Re: Request for Access to Settlement Negotiations in FERC

Docket EL00-95-031 and meaningful participation

Mr. Boyd -

It is my understanding that you wish to be a part of the conference on Wed.

June 27. Please call our 800 number. About 15 minutes before you call the

800 number please call our main number 202-219-2500 just to make sure

everything is OK. We would like for you to call the 800 number no later

than 5 minutes before 10 AM, our time, so that you will not interrupt the

proceedings that will begin at 10 AM. The number is:

1-800-847-8885 After dialing this number ask the operator to transfer

you to 219-2647. Should you have any problems, call our main number at

202-219-2500.

Thank you.

Ruby”

On June 27, 2001 CARE contacted the settlement conference by telephone. CARE requested access to the settlement negotiations as a party via EL00-95, as CARE was party to the December 15 Order in EL00-95, and our original complaint EL01-2 was under rehearing by the FERC. The Chief Judge seemed more concerned over disclosure of confidential information, than the validity of CARE’s request for participation in the settlement negotiations as a Party in the public’s behalf. We made clear that no other Party including the State could represent our interests in this matter. We also made clear that CARE was willing to be represented in person as opposed to over the telephone.

On July 3, 2001 Chief Judge Wagner issued his Order erroneously considering our request for participation as a request to intervene.

“On June 27, 2001, the Californians for Renewable Energy, Inc. (CARE), requested to participate in these proceedings by telephone. CARE argued that it was already a party to these negotiations because the Commission had consolidated its complaint in EL01-2 with the proceeding in EL00-95. The parties objected to CARE's participation on the grounds that it does not have an interest which is not adequately represented by other parties in the proceedings. The parties also objected to CARE's participation on the telephone due the confidentiality of the settlement negotiations. The Chief Judge ruled that CARE is not a party to these proceedings, that the Commission never consolidated its complaint in Docket No. EL01-2 with the proceedings in EL00-95. The Chief Judge further advised CARE that if granted intervention in these proceedings, it would have to send a representative to participate in person in the settlement negotiations.

The Chief Judge finds that CARE has not demonstrated an interest which may be directly affected and which is not adequately represented or protected by the State of California, the California Public Utilities Commission, and other existing parties to these proceedings. Therefore, pursuant to Rule 214(d)(1) of the Commission's Rules of Practice and Procedure, 18 C.F.R. 385.214(d)(1) (2000), the Chief Judge hereby denies CARE's motion to intervene.”

On July 3, 2001 Bloomberg News in an article titled Environmental Group Can't Join Power Negotiations, Judge Says by Amy Strahan Butler reports:

“Washington, July 3 (Bloomberg) -- An environmental group will not be allowed to participate in settlement negotiations between California officials and power sellers, the administrative law judge overseeing the talks ruled today.

Judge Curtis Wagner issued the order after Californians for Renewable Energy, an environmental group, asked to intervene in the negotiations between California and its power suppliers ordered by the Federal Energy Regulatory Commission.

``CARE has not demonstrated an interest which may be directly affected and which is not adequately represented or protected by the state of California,'' Wagner wrote. He added that even if CARE was a party to the case, its members would not be allowed to participate by phone, as the group requested.

State officials and power companies in the negotiations said CARE should not participate because they would be discussing proprietary information, Wagner noted. He agreed.

California and electricity sellers are attempting to resolve $14 billion in debts from power sales by the state's two largest utilities and roughly $9 billion the state says it is owed in refunds for alleged price gouging.