A large group of generators last Monday collectively urged FERC to reject a bid by several California parties to gain access to documents or materials produced or obtained by the agency in its nearly year-long investigation of manipulation in western energy markets.

California regulators, public utilities and others are seeking the information to prove their claims of supplier overcharges during the 2000-2001 power crisis.

In an interlocutory appeal filed on Dec. 19, the California parties asked FERC to review a discovery master’s decision that denied them access to the Commission documents. They said they sought the access in response to a Nov. 20 agency order, which allowed the parties to conduct discovery into the potential manipulative activities of suppliers in California and other western markets (see NGI, Nov. 25).

The California parties want access to documents and other materials produced or prepared in response to a separate Commission staff investigation [PA02-2] into the possible manipulation of Western electric and natural gas prices. But the discovery master, FERC Administrative Law Judge Peter Young, said that the California parties should seek the information from the Commission under the Freedom of Information Act (FOIA).

A large group of power suppliers on Monday said the discovery master made the right call with respect to access to non-public documents related to the probe under docket PA02-2.

“Judge Young considered the California parties’ arguments about why these requests should be allowed and determined properly that those points did not outweigh the countervailing issues associated with allowing what Judge Young termed a ‘back-door’ around the Commission’s rules and regulations for confidential submissions made in an ongoing investigation,” the power suppliers told FERC.

The power suppliers argued the California parties chose to file an interlocutory appeal, as opposed to a proper FOIA request, for two reasons. First, the generators said that the California parties “would like to bypass the Commission’s regulations to obtain access to a broader range of information on a faster track.” Second, the power suppliers said that the California parties “are hoping to avert the claims of privilege and work product that must be addressed on a document-by-document basis pursuant to a FOIA request.”

The generators said the desire of the California parties “to piggyback on the work by the Commission and to avoid addressing the work product and privilege claims on the merits is insufficient to override the Commission’s rules and regulations.”

Last week’s filing was made by the Competitive Suppliers Group, whose members include: BP Energy Co., El Paso Merchant Energy L.P., Exelon Corp. (on behalf of Exelon Generation Co. LLC), PECO Energy Co. and Commonwealth Edison Co., Public Service Co. of New Mexico, Puget Sound Energy, Trachtabel, TransAlta Energy Marketing (California) Inc. and TransAlta Energy Marketing (U.S.) Inc.

FERC Chairman Pat Wood recently said that the full Commission will consider the Dec. 19 interlocutory appeal. In a “notice of determination by the chairman” issued last Thursday, Wood said the California parties have demonstrated “extraordinary circumstances…that would make prompt Commission review of the contested [discovery master’s] rulings necessary to prevent detriment to the public interest or irreparable harm to any person.”

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