At the end of 2017, the California Public Utilities Commission issued Resolution ALJ-344 which implements statutory amendments pursuant to Senate Bill (SB) 215, reflects changes in the Commission’s administration, streamlines certain procedures, and provides greater clarity. These changes come amidst mounting pressure on the CPUC to address allegations of “cozy” relationships with utilities, in the wake of several reports of backroom CPUC dealings with utilities. Of the many changes to the CPUC Rules of Practice and Procedure, there’s a balanced mix of proposed changes that could be seen as favorable or unfavorable from the perspective of regulated utilities, as detailed below.
Potential upside for regulated entities:
- For ex parte rules, definition of “Party” includes CPUC staff acting in an advocacy capacity, for purposes of ex parte rules—this will bar prohibited ex parte communications with CPUC advocacy staff and add to a level playing field
- Clarifies notice for ex parte is 3 working days in advance
- Clarifies that at conferences, decisionmaker’s/interested person’s presentation or dialogue during a question and answer session where the audience includes a decisionmaker/interested person is not a prohibited one-way communication or an ex parte communication.
Potential new challenges for regulated entities:
- Bars ex parte communications within 3 days of Commission meeting
- Assigned Commissioner has discretion to restrict ex parte communications in quasi-legislative and ratesetting proceedings
- Limits definition of “procedural” matters, for purposes of ex parte rules, to matters that inquiring party does not reasonably believe is in controversy
- Adds Commissioner advisory staff to definition of “decisionmaker” for ex parte rules, which will expand the prohibition on ex parte communications
- Removes discretion not to conduct a prehearing conference
- Removes discretion not to issue a scoping memo in adjudicatory and ratesetting proceedings.
- Eliminates the requirement that the Commission will make agenda item documents available at 9:00 a.m. on the day of the Commission meeting, but rather moves availability to the start of meeting.
- The Commission now has express authority to impose penalties and sanctions for ex parte violations, from $500 up to $50,000 for each offense