A recent court filing has brought to light a contentious battle over the expansion of community choice aggregation programs in California. The California Community Choice Association (the Association) filed a complaint against the Public Utilities Commission (PUC) on October 5, 2023, challenging the PUC's decision to delay the effective dates for expanding two community choice aggregation programs.
The Association, representing various Community Choice Aggregators (CCAs), seeks to overturn a PUC resolution that set January 1, 2025, as the earliest possible effective date for expansions by Central Coast Community Energy (CCCE) and East Bay Community Energy (EBCE). These expansions were initially proposed to take effect in January 2024. The Association argues that the PUC exceeded its jurisdiction and failed to proceed according to legal requirements. Specifically, they claim that the PUC relied on unauthorized grounds under section 366.2 of the Public Utility Code to designate the effective date and lacked factual support for its decision.
According to court documents, CCCE and EBCE submitted addendums to their implementation plans in December 2022, proposing expansions into new cities. However, after reviewing these plans, the PUC issued Draft Resolution E-5258 in March 2023, setting a later effective date due to concerns about resource adequacy deficiencies. The PUC cited past failures by CCCE and EBCE to procure sufficient energy capacity during periods of high demand, which led to cost shifting from CCA customers to those of investor-owned utilities.
The PUC's final resolution adopted on April 28, 2023, reiterated these concerns. It stated that both CCCE and EBCE had repeatedly violated resource adequacy requirements and contributed to cost shifting during extreme electricity scarcity periods in 2021 and 2022. Despite modifications made in September 2023 following applications for rehearing by the Association and CCCE, the PUC maintained its stance that an earlier effective date could not be confirmed without risking further cost shifting.
The Association contends that this decision is flawed both procedurally and substantively. They argue that section 366.2 mandates only ministerial duties for setting effective dates based on cost recovery determinations related to specific statutory provisions. They also claim that there is no concrete evidence supporting future resource adequacy deficiencies or associated cost shifting risks.
In response, the PUC asserts its broader jurisdiction under section 366.2(a)(4), which aims to prevent any cost shifting between CCA customers and bundled service customers of electrical corporations. The Commission maintains that its decision was based on substantial evidence of past procurement failures by CCCE and EBCE and reasonable concerns about their ability to meet future resource adequacy requirements.
The Association seeks judicial relief through a writ of review from the Court of Appeal of California’s First Appellate District Division Four. They request reversal of both Commission Decision No. 23-08-052 and Resolution E-5258, arguing procedural inadequacies and lack of substantive merit in the PUC's actions.
Representing the petitioner are attorneys Thomas J. Macbride Jr., Megan J. Somogyi, Megan V. Unger, and Christopher Marelich from Downey Brand LLP. The respondent is represented by Christine Hammond, Edward Moldavsky, Elena O. Gekker from the California Public Utilities Commission's legal team.