|
|
Enron Mail |
Here is a summary of recent developments:
Natural Gas and Electricity Class Action Complaint Against El Paso Two plaintiffs attorneys filed a class action complaint alleging anti-trust and unfair competition against El Paso and 100 Does for inflating natural gas prices and the price of electricity. The complaint alleges that this was done by withholding capacity on the El Paso and Trans Western pipelines. <<gascomplaint.pdf<< Ron Carroll's Analysis of Private Cause of Action One of the assignments from our Portland meeting was to find out whether or not there was a private right of action (or prohibition of same) under the Federal Power Act. Here is Ron Carroll's response: The courts have refused to create a private cause of action for violations of the FPA, stating that the regulatory scheme created by Congress vested the regulatory body with the power to pursue enforcement. See Clark v. Gulf Oil Corp., 570 F.2d 1138, 1149 (1977) (pertaining to the recovery of losses due to allegedly unlawful rates under the NGA); City of Gainesville v. Florida Power & Light Co., 488 F. Supp. 1258, 1277-78 (S.D. Fla. 1980) (noting that the legislative history of the NGA, which was modeled after the FPA, does not suggest the existence of any private rights of action). Dave Noonan's Report on Defense Counsel Teleconference on Monday Chris Healy has just advised me that the call will take place on Monday, December 18 at 10:30 am (PST) to discuss removal issues in the Hendricks case. The dial-in number for the call is 1-866-855-6338, password 8315. <<QDV#01!.DOC<< <<QF2Z01!.DOC<< Also, Morgan Stanley is rep'd by Jeff Davidson of Kirkland&Ellis [L.A]. Data Preservation Steve Hall and others have been working on making sure that the California AG's request to preserve evidence has been complied with. EPMI will probably be extending the period that it keeps backup tapes, making copies of hard drives from individual computers etc. FERC Developments Secretary of Energy Richardson issued an emergency order requiring EPMI to market energy to the ISO. In addition, another emergency order was issued today. I enclose the order and the press release. The Press release for today's order is included below. The FERC special meeting on California was videotaped by Nancy Pickover of Bracewell and is being sent to us. <<202corder.pdf<< <<Califnotice.pdf<< <<dec15caorder.pdf<< Dan Watkiss Analysis of FERC Order re Penalties for Refusal to sell Energy Last Friday, the ISO filed with FERC Amendment No. 33 to its tariff. Among other things, the Amendment adds to the section 5 of the tariff new provisions empowering the ISO to assess a penalty against Participating Generators that refuse to operate in response to an ISO Dispatch instruction during a System Emergency or when the ISO is acting to avoid an imminent or threatened System Emergency. The penalty is stiff: (1) a charge for each MWh of the Dispatch instruction with which the Participating Generator does not comply equal to twice the highest price for Energy, per MWh, paid in each hour by the ISO to any other entity to produce Energy; and (2) if the ISO is required t call for the involuntary curtailment of firm Load to maintain Applicable Reliability Criteria during the System Emergency, then an additional charge equal to $1,000 for each MWh of the Dispatch instruction with which the Participating Generator does not comply. The only defense to these penalties is to provide proof that the generating unit in question was physically incapable of running or it would have violated state or federal law to run it (e.g., air emission allowance limits). The ISO asked FERC for an immediate effective date of December 8, which FERC granted in a December 8 order. The ISO Tariff defines "Participating Seller or Generator" to mean "A generator or other seller of Energy or Ancillary Services through a Scheduling Coordinator over the ISO Controlled Grid and which has undertaken to be bound by the terms of the ISO Tariff." If Enron is a Participating Generator (Mary Hain informs me that Enron is not one), then it risks incurring the new penalty if it fails to respond to an ISO order to sell ancillary services to the ISO. I believe Enron might also risk incurring the penalty in cases where it controls or has rights to all or a portion of a generating capacity of a Participating Generator's unit. If that capacity is called on and the call is not answered because Enron is making some other use of the capacity, the Enron may incur the penalty . This seems to be contemplated by section 4.1.1 of the Participating Generator Agreement which obliges a Participating Generator to comply with the tariff (section 5.3) by identifying the Generating Units that it owns, operates or has a contractual entitlement to in Schedule 1, as required by Section 5.3 of the ISO Tariff. (emphasis added). As far as I know, it is that Schedule 1 that the ISO consults when making decisions as to which Participating Generator to call on. Thanks Gary ======================================================= This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, send an email to postmaster@brobeck.com BROBECK PHLEGER & HARRISON LLP http://www.brobeck.com - gascomplaint.pdf - QDV#01!.DOC - QF2Z01!.DOC - 202corder.pdf - Califnotice.pdf - dec15caorder.pdf
|