|
Consulting |
Abbreviations |
Search |
Dallas Seeks Rehearing of Denied Appeal Concerning REP Application
Email This Story
December
7, 2010
The City of Dallas filed for rehearing of the PUCT's order denying an appeal of an ALJ's order denying its Option 2 REP application, reiterating its legal arguments concerning PURA, and also explaining its view that establishing a city owned or controlled corporation is not a viable method to obtain a REP certificate (Docket 38630).
During a November open meeting (11/11), Commissioners accepted an ALJ's and Staff's arguments that under the Commission's Substantive Rules and relevant provisions of PURA, the City is ineligible for a REP certificate, as a municipal corporation is not a "person" under the relevant provisions, and thus may not obtain a REP certificate under Subst. R. 25.107.
Commissioners, noted, however, that the city could easily avoid this obstacle by
creating a profit or non-
"As matter of law, the City's power to form an independent corporation may be limited and following that path would almost certainly risk litigation respecting the City's power to form a corporation, and cause power generator's to hesitate to sell power to the City's corporation," the City said.
"Moreover, the City would have to appropriate and dedicate substantial funds to the
new corporation to allow it to meet the financial resources required by Texas Utilities
Code § 39.352(b)(1). The City's governmental immunities from liability and suit
moot most of the usual legal advantages that non-
At its November open meeting, the Commission said that regardless of the City's interpretation of PURA (the City argues that a municipal corporation is a person and therefore may act as a REP), the Commission's rule is explicit that the certification process under Subst. R. 25.107 excludes municipal corporations. Commissioners stressed that the rule was not judicially challenged, and, at this point, cannot be altered except through a formal rulemaking, which the Commissioners were unwilling to open.
At the November meeting, Commissioner Kenneth Anderson did express his opinion that he thought the Commission's certification rules on the matter were inartfully drafted and seem narrower than PURA, but ultimately agreed that the City's appeal should be denied.
In its new rehearing request, the City addresses the exclusion of municipal corporations under Subst. R. 25.107, again arguing that rather than excluding municipal corporations from obtaining status as a REP, the exclusion under Subst. R. 25.107 only serves to exclude municipal corporations from obtaining a certificate through the process established under Subst. R. 25.107.
The Substantive Rule, the City argued, cannot exercise authority not granted through PURA, and the City offered a statutory construction of the definition of "person" which the City said does not exclude a municipal corporation from the definition of person eligible for a REP certificate.
Specifically, the City argued that, "the plain language of the definition of 'person' in Texas Government Code § 311.005(2) applies to clearly make the City a 'person' within the meaning of Texas Utilities Code § 39.352 because nothing in PURA 'requires a different definition.'"
"In order to exclude municipal corporations from the statutory definition of 'person' as the term is used in Texas Utilities Code § 39.352, PURA would therefore have to exclude municipal corporations explicitly from the definition of 'person,' not implicitly do so by omission from the definition of a type of organization included in a list of entities that are included in the definition of 'person," the City said, noting no such explicit exclusion occurs.
Copyright 2010 Energy Choice Matters. If you wish to share this story, please email or post the website link; unauthorized copying, retransmission, or republication prohibited.
Be Seen By Energy Professionals in Retail and Wholesale Marketing
Run Ads with Energy Choice Matters
Call Paul Ring
954-
|
Consulting |
Abbreviations |
Search |