by David Niebauer
California has led the nation in solar development on many fronts for a number of years, but there is one area where California has lagged significantly – the implementation of tradable renewable energy certificates (or TRECs).
As of this writing, there are five regional renewable energy tracking systems operating in North America, one national registry and three state systems. As early as June 2007, the California Energy Commission launched the Western Renewable Energy Generation Information System (WREGIS), which was designed to track renewable energy generation and create and track renewable energy certificates (RECs) for that generation. TRECs are an important tool for utilities in other states striving to meet their renewable portfolio standard (RPS) goals and help developers finance renewable energy projects in other parts of the country where TRECs are available. So why not in California?
In California RECs are not yet tradable – all electric utility renewable energy purchases are “bundled” transactions. That is, the environmental attributes (e.g., RECs) are tied to, or bundled with, the energy itself. Therefore, the only way for utilities to comply with RPS requirements is to purchase renewable energy in bundled transactions from a qualifying renewable energy facility.
In States with unbundled or tradable RECs, electric utilities have two ways to meet with RPS goals: purchase renewable energy in bundled transactions (like in California) or purchase RECs on the open market. In States with TRECs the REC has been “stripped” from the energy and is traded separately. The energy is sold separately and is still supplied to the grid. The utility purchasing the REC may be and likely is completely different than the purchaser of the energy. Only the REC purchaser can count that energy toward its RPS goals.
Proponents of tradable RECs point out that the scheme will assist the State in achieving its RPS goal by balancing out geographical and transmission constraint differences from utility to utility. In California, for example, the State as a whole has considerable renewable resources, from geothermal to wind to solar – but these resources are not evenly distributed geographically throughout the State. Further, some areas with strong renewable resources have significant transmission constraints, making grid connection prohibitively expensive. A tradable REC regime would allow resources to be developed where cost and fit are most appropriate, and allow the environmental attributes (the RECs) to be traded among the utilities (and through intermediaries) to balance out these geographical and transmission constraint issues. As stated in the April 2006 California Public Utilities Commission (CPUC) Staff White Paper: “Importantly, under an unbundled and/or tradable REC framework, [a utility] can purchase RECs from renewable facilities largely irrespective of where those facilities are located or where the energy is ultimately delivered.”
From the energy developer’s perspective, RECs can provide an advantage for developing renewable energy sources. The ability to sell RECs in an unbundled transaction would mean that a developer would be able to negotiate with any utility or other buyer of RECs, rather than negotiating with only one utility in a bundled transaction. In states with TREC developers contract with one utility to provide energy at a relatively low cost and then sell the RECs to another utility or other buyer to enable his project to be economically viable. Where the developers must sell the energy and the REC to the same utility, the price of the energy might be too low to justify development. For this reason, tradable RECs can be a way to speed the development of renewable generation.
The California Log Jam
California has been taking slow, halting strides in the direction of permitting tradable RECs. In 2006 the California legislature passed Senate Bill (SB) 107, which gave the CPUC express authority to allow the use of tradable RECs for RPS compliance.
Three and half years later on March 11 2010 the CPUC issued a decision authorizing TRECs for RPS compliance in California (Decision10-030-021). The proposed scheme had a number of limitations but appeared to be a workable model. Most notable of the limitations was a maximum cap for IOUs of 25% of RPS compliance targets that could be met with TRECs. This limitation was to last only until the end of 2011 and was intended as a way to monitor the program before allowing unfettered use of TRECs. The other significant limitation was a price cap of $50 per REC. Again, this limitation was scheduled to expire at the end of 2011 unless the CPUC determined to extend the cap at that time based on further market studies.
The CPUC decision was made after conducting numerous workshops and receiving comments from interested parties. However, the entities that would have been most impacted by the Decision were not at all happy with the final outcome. Notably, the State’s IOUs and the Independent Energy Producers Association (IEP), whose members make up most of the merchant power producers in the State, filed objections and forceful motions to stay the decision. Prior to its implementation on May 6, only a few weeks after issuing the Decision, the CPUC granted an indefinite stay of Decision 10-03-021. This stay in still in effect.
The reasons for the stay, and the larger implications, are not at all clear. On its face, the stay was implemented in order to resolve objections raised by the IOUs and the IEP. Neither party liked the 25% limitation on use of TRECs to meet RPS requirements. Further, the IOUs, in particular, argued that the CPUC’s definition of a REC-only transaction would limit access to most out-of-state renewable resources, making implementation the TREC scheme unworkable.
Commissioner Grueneich’s Dissent
Commissioner Dian M. Grueneich filed a dissent to the stay that may shed some light on what is really going on. Commissioner Grueneich focused on the motion by the IOUs and claimed that the modifications urged by the IOUs would cause the “outsourcing of California’s renewable economy.” She points out that nothing had changed in the 60 days or so between the Decision and the Stay other than “the relentless lobbying by the utilities at this Commission and in Sacramento to overturn a decision they dislike.”
“Since the RPS mandate was first signed into law, one message that has been repeated again and again from developers, from investors and from members of this Commission itself, is that market players need certainty and consistency in decision making in … order to make long term investments in California. This decision will disrupt renewable energy markets, threaten financing for existing and future projects, and compromise the careful work of the Governor’s office to ensure that renewable energy projects obtain their CEC permits and break ground expediently.”
Perhaps this is the (cynical) goal of the IOUs: to entangle the entire RPS movement in delay and uncertainty so that their own foot-dragging can be explained away and excused. Without clear guidance on a TREC program, the argument might go, how can they be expected to meet the State’s aggressive RPS goals? The IOUs have a long way to go to even comply with the 2010 RPS requirement of 20% renewable generation. In 2009, the IOUs collectively served 15.4% of their load with renewable energy. The CPUC estimates that the IOUs are expected to be at about 18% in 2010 and 21% in 2011 – assuming that existing contracts can be converted into operating facilities within that timeframe.
Or it may just be a bureaucratic quagmire that still requires time to work out. After all, the IOU’s fundamental argument in support of the stay, that out of state bundled transactions should not be defined as REC-only transactions and counted toward the 25% cap, makes sense.
California needs to get this right. Whatever system gets developed in California will be followed by other states, especially those in the WREGIS System, so a region-wide system must be supported by the final CPUC decision. We need a workable final decision soon so that we can move forward on the larger goal of lowering greenhouse gas emissions and building a truly sustainable energy infrastructure.
David Niebauer is a corporate and transaction attorney, located in San Francisco, whose practice is focused on clean energy and environmental technologies. www.davidniebauer.com.