01-8488. Public Utilities Commission of the State of California v. El Paso Natural Gas Company, El Paso Merchant Energy-Gas, L.P., and El Paso Merchant Energy Company; Order of Investigation

Issued April 2, 2001.

Before Commissioners: Curt Hébert, Jr., Chairman; William L. Massey, and Linda Breathitt.

Pursuant to the authority of 18 CFR 1.b (2000) and at the recommendation of FERC's General Counsel, the Commission is instituting a formal, non-public investigation into the apparent disclosure of non-public information and/or documents filed in Docket No. RP00-241-000. As discussed below, the Chief Administrative Law Judge (Chief ALJ) is designated to conduct the investigation and to report the results of the investigation to the Commission, along with any recommended remedies, within 30 days of the date of issuance of this order.

On April 4, 2000, the Public Utilities Commission of the State of California (CPUC) filed a complaint under section 5 of the Natural Gas Act (NGA) ^[1] against El Paso Natural Gas Company (El Paso Pipeline), El Paso Merchant Energy-Gas, L.P., and El Paso Merchant Energy Company ^[2] (jointly, El Paso Merchant). The complaint asserts, inter alia, that three transportation contracts between El Paso Pipeline and El Paso Merchant for approximately 1,220 MMcf/day of firm capacity to California (El Paso Contracts) raise issues of possible affiliate abuse, of anti-competitive impact on the delivered price of gas and the wholesale electric market in California.

The procedural background of this proceeding is fully described in the Commission's Order Denying Rehearing and Affirming Protective Order that was issued January 10, 2001 (January 10, 2001 order) ^[3] and will be addressed in this order only briefly. On June 28, 2000, the Commission issued an Order on Complaint Requiring Responses to Data Requests (June 28, 2000 order).^[4] Pursuant to that order and the terms of a confidentiality agreement, El Paso Pipeline and El Paso Merchant provided to CPUC and filed with this Commission under seal certain information in response to the data requests approved by the Commission. El Paso Pipeline and El Paso Merchant sought privileged treatment of the information pursuant to section 388.112 of the Commission's regulations (18 CFR 388.112 (2000)).

On August 31, 2000, CPUC filed a motion for a protective order, asserting that other parties to this proceeding should be given access to the information provided to CPUC and this Commission in compliance with the June 28, 2000 order. On September 15, 2000, the Commission issued the requested protective order (September 15, 2000 Protective Order).^[5]

In the January 10, 2001 order, the Commission, inter alia, required El Paso Merchant to provide Protected Materials ^[6] to parties that executed the Protective Order and appropriate Non-Disclosure Certificates (January 10, 2001 order).^[7] After reviewing the Protected Materials, Southern California Edison Company, Pacific Gas & Electric Company, and Southern California Gas Company filed comments.

On March 26, 2001, an article entitled “Deal for Use of Gas Pipeline Stirs Dispute on Competition” was featured in The New York Times. The article makes detailed references to “sealed documents” filed in Docket No. RP00-241-000 and obtained by The New York Times. Such references have raised issues of whether improper disclosure of Protected Materials or otherwise non-public materials has occurred.

The Commission is instituting an investigation to determine whether improper disclosure of Protected Materials or otherwise non-public materials has occurred and whether the September 15, 2000 Protective Order, any Non-Disclosure Certificates executed pursuant to the September 15, 2000 Protective Order or the Commission's regulations at sections 388.112 and 3c.2 have been violated (18 CFR 388.112 and 3c.2 (2000)). In conducting the investigation, the Chief ALJ has all powers conferred under section 1.b of the Commission's regulations, including the authority conferred under sections 1b.13 and 1b.14 (18 CFR 1b.13 and 1b.14 (2000)).

The Commission orders: The Chief ALJ shall conduct a formal, non-public investigation pursuant to 18 CFR 1b.5 (2000), with all the authority conferred under 18 CFR 1.b (2000), including the authority to subpoena witnesses conferred in 18 CFR 1b.13 and 1b.14 (2000), as discussed in the body of this order. The Chief ALJ shall report non-publicly the results of the investigation to the Commission, along with any recommended remedies, within 30 days of the date of issuance of this order.

By the Commission.

Linwood A. Watson, Jr.,

Acting Secretary.

Footnotes

1.  15 U.S.C. § 717d (1994).

2.  Effective January 1, 2001, El Paso Merchant Energy Company changed its name to El Paso Merchant Energy, L.P.

3.  Public Utilities Commission of the State of California v. El Paso Natural Gas Co., 94 FERC ¶ 61,021 (2001).

4.  Public Utilities Commission of the State of California v. El Paso Natural Gas Co., 91 FERC ¶ 61,312 (2001).

5.  Public Utilities Commission of the State of California v. El Paso Natural Gas Co., 92 FERC ¶ 61,225 (2000).

6.  Under paragraph 2 of the September 15, 2000 Protective Order, “[a] Participant may designate as protected those materials which customarily are treated by that Participant as sensitive or proprietary, which are not available to the public, and which, if disclosed freely, would subject that Participant or its customers to risk of competitive disadvantage or other business injury.”

7.  Public Utilities Commission of the State of California v. El Paso Natural Gas Co., 94 FERC ¶ 61,021 (2001).