TIEC Says Texas Commission Lacks Authority to Approve NRG Voluntary Mitigation Plan

Texas Industrial Energy Consumers moved to dismiss the application for a voluntary mitigation plan (VMP) filed by NRG Texas Power and Staff of the Public Utility Commission of Texas, as TIEC argued that the Commission lacks authority to approve the plan.

As previously reported, the VMP outlines specific offering practices that NRG can use when offering its generation resources into the Electric Reliability Council of Texas (ERCOT) real-time energy market during the term of the agreement that will not be considered an abuse of market power.

TIEC noted that PURA § 15.023(f) provides that the Commission and a person, "may develop and enter into a voluntary mitigation plan relating to a violation of Section 39.157 or rules adopted by the commission under that section" (emphasis by TIEC)

"This language makes clear that approval of a VMP is only authorized under that section in the context of a notice of violation proceeding or an actual finding of market power abuse under PURA § 15.024," TIEC said.

The NRG VMP does not result from any allegation of market power abuse.

"Seeking approval of a preemptive VMP outside the context of an enforcement action for an alleged violation of PURA § 39.157 is contrary to PURA § 15.023(f)," TIEC said.

"The Legislature authorized VMPs only in the context of a pending notice of a PURA § 39.157 market power violation or a finding of abuse, pursuant to PURA § 15.024. The Commission has only those statutory powers conferred by the Legislature in clear and express language. Nothing in the statute permits the Commission to approve a VMP as a prophylactic, rather than remedial, measure. In adopting H.B. 2133, the Legislature expressly provided that a VMP must relate to a violation of PURA § 39.157 -- not a 'potential' or 'future' violation. The Legislature did not provide for VMPs absent a violation. Therefore, the Application fails to comply with the applicable statutory requirements and should be rejected," TIEC said.