To 5 Jerry A. Beatmann, Jr. jay,beatmann@dentons,com Counsel +1 504 524-5446 or 504 256-6142 Dentons US LLP 650 Poydras Street Suite 2850 New Orleans, LA 70130-6132 USA +1504 524 9101 +1 504 568 0331 November 16, 2017 BY HAND DELIVERY Ms. Lora W. Johnson Clerk of Council Council of the City of New Orleans City Hall, Room IE09 1300 Perdido Street New Orleans, LA 70112 Re: Application of Entergy New Orleans Inc. for Approval to Construct New Orleans Power Station and Request for Cost Reovery and Time/y Relief, Docket No. UD-16-02 Dear Ms. Johnson: Enclosed please find an original and four (4) copies of an Advisors? Motion to Strike Portions of Supplemental Testimony of Beverly Wright, and Memorandum in Support which we are requesting be filed on behalf of the Council's Utility Advisors. Please file the attached Motion, Memorandum in Support, and this letter in the record of this proceeding in accordance with your normal procedure. Sincerely, pm Enclosures cc: Official Service List BEFORE THE COUNCIL OF THE CITY OF NEW ORLEANS APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR APPROVAL TO CONSTRUCT NEW ORLEANS POWER STATION AND REQUEST FOR COST RECOVERY AND TIMELY RELIEF DOCKET NO. UD-16-02 MOTION TO STRIKE PORTIONS OF SUPPLEMENTAL TESTIMONY OF BEVERLY WRIGHT. PH.D. Now come the Advisors to the Council of the City of New Orleans (?Advisers?), who through undersigned counsel, respectfully move to strike the following portions of Dr. Beverly Wright?s Supplemental Testimony pursuant to New Orleans City Code, Section 158-478: 1. Table of Contents Roman Numeral 2. Page 3, lines 59 and 17?25; 3. Page 4, lines 1-28; 4. Page 5, lines 1-22; 5. Page 6, lines 1?19 All portions of testimony that should be stricken from the record are highlighted in yellow in the attached Exhibit A for ease of reference. For the reasons explained in the memorandum in support of this motion, which is also attached hereto and made a part hereof, the above portions of Supplemental Testimony are inadmissible and otherwise improper and therefore should be stricken from the record. WHEREFORE, the Advisors to the Council of the City of New Orleans pray that their Motion to Strike be granted and that the above-referenced citations be stricken from the record. RESPECTFULLY SUBMITTED: Cli A. Vin 23594) Pr sle ed, Jr. (42065) Emma F. Hand (476001) J. A. ?Jay? Beatmann, Jr. (LSBA #26189) DENTONS, US LLP 650 Poydras Street, Suite 2850 New Orleans, LA 70130 Telephone: (504) 524-5446 Facsimile: (504) 568?0331 Email: and Walter J. Wilkerson (LSBA #13473) Wilkerson Associates, PLC 650 Poydras Street, Suite 1913 New Orleans, LA 70130 Telephone: (504) 522?4572 Facsimile: (504) 522-0728 Email: wwilkerson@wilkersonplc.com Advisors to the Council of the City of New Orleans CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served upon he Of?cial Service List" via electronic mail and/or US. Mail, postage properly af?xed, this 16th day of November, 2017. WWann, Jr. BEFORE THE COUNCIL OF THE CITY OF NEW ORLEANS APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR APPROVAL TO CONSTRUCT NEW ORLEANS POWER STATION AND REQUEST FOR COST RECOVERY AND TIMELY RELIEF DOCKET NO. UD-16-02 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE PORTIONS OF SUPPLEMENTAL TESTIMONY OF BEVERLY WRIGHT. PHD. On October 16, 2017, Beverly Wright, submitted supplemental testimony in this proceeding on behalf of Deep South Center for Environmental Justice Alliance for Affordable Energy (?Alliance?), 350 Louisiana - New Orleans, and Sierra Club (?Wright Supplemental Testimony?). The stated purpose of Dr. Wright?s testimony is to discuss what she describes as the ?signi?cant problems regarding (1) the fairness of this utility docket proceeding being undermined by the con?icting roles of the New Orleans City Council Consultants to recommend the City Council agree to Entergy developing a new power plant on potential sites in East New Orleans and also to advise the Council on whether the proposed Entergy gas power plant is in the public interest; (2) the false statement made by Entergy which resulted in there being no environmental assessment of its industrial impact on nearby residential neighborhoods and schools in East New Orleans, where residents are predominantly African American and Vietnamese American; and (3) Entergy?s repeated overestimations of customer need for the :31 proposed gas power plant. Wright Supplemental Testimony, 3:5?13. 105 7 i 33 69W-l Unfortunately, Dr. Wright's testimony, as specifically referenced in the motion accompanying this memorandum, largely constitutes legal opinions and conclusions that are outside of her areas of expertise and experience and unsupported by facts. Accordingly, as will be discussed below, portions of her testimony are inadmissible pursuant to the Louisiana Code of Evidence. Therefore, the referenced testimony should be stricken from the record of this proceeding. I. Dr. Wright's Testimony Includes Legal Opinions and Conclusions Regarding a Settlement Reached at the Federal Energy Regulatory Commission and Unanimously Approved by the New Orleans City Council Dr. Wright dedicates an entire section of testimony to statements that are conclusions about questions of law. In section IV of her Supplemental Testimony, beginning on page 3 entitled "The Conflicting Roles of the New Orleans City Council Consultants Undennine the Fairness of This Proceeding," Dr. Wright strays from her stated expertise and experience and provides legal analyses and conclusions regarding her interpretation of a settlement at the Federal Energy Regulatory Commission ("FERC'') with respect to several issues addressed in that settlement. 2 Moreover, in addition to lacking the requisite legal qualifications and background to provide expert legal analysis regarding the settlement proceedings, Dr. Wright, having not participated in either the FERC proceeding or the subsequent Council proceeding approving the settlement, also lacks sufficient firsthand knowledge thereof to testify as a factual witness regarding those proceedings. Moreover, if Dr. Wright's "legal" analysis were conect, which it is not, it would also apply to the Council and would disqualify the Council from proceeding to function in this entire 2 The Settlement Agreement dated August 14, 2015 resolved all outstanding issues in FERC Docket Nos. ERi 4-75000, ER14-75-001, ER14-76-000, ER14-76-001, ER14-77-000, ER14-77-00I, ER14-78-000, ER14-78-001, ER1479-000, ER14-79-001, ER14-80-000,ER14-80-001, ER14-128-000, ER14-1328-000, and ER14-1329. 105713369\V.[ docket. The Entergy Operating Companies that participated in the FERC settlement include Entergy Gulf States Louisiana, LLC, Entergy Louisiana, LLC, Entergy New Orleans, Inc. ("ENO") and Entergy Texas, Inc. ("Operating Companies"). The Louisiana Public Service Commission ("LPSC"), the Public Utility Commission of Texas and the Council of the City of New Orleans ("Council") also actively participated in the settlement negotiations, however, FERC's acceptance of the settlement agreement was subject to the approval of the LPSC, PUCT, and the Council. Thereafter, the Council did, in fact, unanimously approve the settlement on November 5, 2015 in Resolution No. R-15-524. Dr. Wright quotes portions of Resolution No. R-15-524 in her testimony and provides her legal interpretation of language in the Resolution and the underlying FERC settlement. Dr. Wright points to page 12 of Resolution No. R-15-524, which states; WHEREAS, ENO will use reasonable diligent efforts to pursue the development of at least I 20 MW of new-build peaking generation capacity within the City of New Orleans. As part of this commitment, ENO will fully evaluate Michoud or Paterson, along with any other appropriate sites in the City of New Orleans, as the potential site for a combustion turbine ("CT") or other peaking unit to be owned by ENO, or by a third party with an agreed-to PPA to ENO. This evaluation will take into consideration, among other mateiial considerations, the results of the Michoud site analysis that was completed in connection with the Summer 2014 Request for Proposal; and WHEREAS, ENO c01mnits to use diligent efforts to have at least one future generation facility located in the City of New Orleans; .... Dr. Wright erroneously concludes that this language and the FERC settlement constitute a final agreement between the Council and ENO to build a power plant. Similarly, Dr. Wright incorrectly concludes, without factual references, that the language in Resolution No. R-15-524 demonstrates "a separate process outside of Council regulations, public notice, and Council utility dockets for the consultants to work out with Entergy the 105713369\V-1 specific features -- 'at least 120 MW of new-build peak generation capacity'-- and potential sites­ - 'Michoud or Paterson' in East New Orleans-- for the construction of a new power plant. "3 Dr. Wright asserts that this language identifies specific sites in East New Orleans without noting that the language also specified "along with any other appropriate sites." Accordingly, Dr. Wright incorrectly suggests that those two sites, Michoud or Paterson, had somehow been selected over other options as the site for a specific project. The language is clear on its face that ENO was instructed to consider any other sites that would be appropriate in addition to the existing brownfield sites ofMichoud and Paterson. In addition, Dr. Wright refers throughout her testimony to the cited language as the "City Council's prior agreement with Entergy to build a new gas power plant" (emphasis added).4 Clearly, Dr. Wright misunderstands and draws legal conclusions with an unsupported evaluation of a highly complicated and wide-ranging FERC settlement that resulted from several years of litigation and negotiation. Legal interpretations of settlement agreements and legislative instruments from non-lawyers without specialized knowledge, expertise or educational background in law are excludable from their expert witness testimony. 5 As such, these statements should be stricken from the record in this proceeding. Furthermore, Dr. Wright's conclusions are contrary to the plain language of the settlement agreement and the Council's resolutions regarding it. With respect to Resolution No. R-17-100 adopted by the Council on February 23, 2017, which pertains to ENO's 2015 Integrated Resource Plan ("IRP"), Dr. Wright asserts that the 3 4 5 Wright Supplemental Testimony, 4:21-25. Id., 5:5-6. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999) citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). 105713369\V-l Council ?concludes that a new gas power plant is needed in the City of New Orleans.?6 However, in several sections of that resolution, omitted by Dr. Wright, the Council unambiguously states that the decision to approve or deny application to build the New Orleans Power Station will be fully vetted in Council Docket No. UD-16-02. Pages 28-29 of Resolution No. R~l7?100 plainly states the following: WHEREAS, the Council agrees that the size and timing of the new CT should be fully vetted in Council Docket No. UD-16-02, including any transmission and reliability considerations and costs which were not addressed in the 2015 Final and WHEREAS, ENO should be advised that approval of the 2015 Final IRP by the Council does not constitute approval of any specific new resource, including the proposed NOPS CT unit under consideration in Council Docket No. ENO will continue to bear the burden of demonstrating that any new proposed resource is in the best interest of ratepayers. . .. (emphasis added). Again in the second ordering paragraph on page 94, the Council emphatically reiterates its position with respect to request to build NOPS as follows: 2. All issues related to NOPS CT proposal should be vetted in Council Docket No. including, but not limited to the need for a CT, size, timing, environmental concerns, social justice, cost, transmission, and reliability considerations. ACCEPTANCE OF THIS IRP SHALL HAVE NO PRECEDENTIAL EFFECT WITH RESPECT TO THE EVALUATION OF NOPS CT APPLICATION IN COUNCIL DOCKET In the face of this explicit language, it cannot be reasonably concluded that an agreement had or has already been made to construct NOPS. Any suggestion to the contrary simply ignores the express orders of the Council and the record of these proceedings to date, which includes multiple sets of testimony by ENO and intervenors, hundreds of discovery requests, at least a dozen public outreach meetings conducted by ENO and two public hearings held by the Council Utilities Regulatory Of?ce. Dr. Wright?s Supplemental Testimony cannot change these facts. 61a, 5:13. i037] Finally, Dr. Wright asserts another unsupportable legal and factual conclusion: that the Advisors recommended that the Council ?agree? to permit ENO to build a gas ?red generating unit ?prior to any public review?? The record is clear that no such agreement exists and none reasonably appears in any of the resolutions referenced by Dr. Wright. Her legal opinion could be called a layinen?s interpretation of an approved FERC Settlement Agreement that was unanimously adOpted by the Council in Resolution No. R-15-524, but it does not emanate from Dr. Wright?s considerable stated areas of expertise and experience, which do not include legal training. To date, the Council has not decided on any generating unit and no Council resolution or settlement agreement says that such decision has been made. All options have been referenced in the relevant documents and all are being considered in this fully transparent and open proceeding. Section IV of Dr. Wright's Supplemental Testimony includes an entire legal discussion about language included in the FERC Settlement Agreement as adopted in Council Resolution No. Though a much respected and an accomplished sociologist, Dr. Wright?s credentials clearly establish she is not a lawyer. Consequently, she does not present the quali?cations to interpret legal settlement agreements or Council resolutions, eSpecially in written pre-?led testimony in a Council utility docket. Furthermore, there are no legal issues in this docket that require expert testimony regarding the interpretation of legal documents and legislative instruments. Louisiana law is clear that an expert?s testimony regarding legal issues is inadmissible on the basis that it does not comport with the expert's scientific, technical, or other specialized 7 [05713369W-l knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.8 The testimony must also be based on suf?cient facts or data.9 Dr. Wright?s Supplemental Testimony regarding the FERC Settlement Agreement, as approved in Resolution No. R-15-524, does not provide any scienti?c, technical or other specialized knowledge to assist the Council in understanding or determining facts in this docket. Even if Dr. Wright's testimony were considered admissible, which it is not, her legal interpretation and opinions are not based on suf?cient facts as required by the Code of Evidence. As noted above, Dr. Wright?s interpretation of the FERC settlement as an agreement between the Council and ENO to build a power plant is not factually based and is not accurate. No specific resource, size, or location was approved by the Council or in any way agreed upon by the parties in the FERC proceeding. The FERC Settlement Agreement approved by the Council contains the same language that was included in Resolution No. which was quoted by Dr. Wright on page 4 of her Supplemental Testimony. However, the very next paragraph in the FERC Settlement Agreement (Section 11E), while not reproduced in the text of Resolution No. R-15-524, was approved by that Resolution and states unequivocally; The commitments set forth in this Section II.E are subject to mutually satisfactory resolution of all material considerations, including, without limitation: ?nancial feasibility for affordability for ENO customers; economic feasibility in comparison to other potential projects, locations, 3 La. Code Evidence Ann. Art. 702: A witness who is quali?ed as an expert by knowledge, experience, training, or education may testify in the form of an opinion or otherwise if: (1) The expert?s scienti?c, technical, or other specialized knowiedge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on suf?cient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case. See Iteld v.1:our Corners Const. L.P., 2012-1504 (La. App. 4 Cir. 6/5/13), 157 So. 3d 702; Wilson v. Wiison, 542 So. 2d 568 (La. Ct. App. Cir. 1989); Morrison v. Johnston, 571 So. 2d 788 (La. Ct. App. 2d Cir. 1990). 9 La. Code of Evidence Ann. Art. 702. 105713369W-i or alternatives; timely rate recovery; regulatory jurisdiction over such facility(ies) to the extent not owned by and consistency with sound utility practice and planning principles (emphasis added). This provision directly contradicts and plainly refutes any claim that the FERC Settlement Agreement represents an agreement between the Council and ENO to build a power plant, much less any speci?c plant. In fact, not only was there no agreement to build a power plant, the language of the FERC Settlement Agreement unambiguously af?rms that no generating facility would be built without the ?mutually satisfactory resolution of all material considerations? including the ?economic feasibility in comparison to other potential projects, locations, or alternatives.? While the FERC Settlement Agreement was not an agreement between ENO and the Council to build a power plant or any other generating resource, it was a critically significant resolution of litigation having a variety of potentially harmful effects on ENO's customers. The agreement, from the Council?s perspective, was to allow ENO and the other Operating Companies to terminate the System Agreement early in exchange for a number of essential concessions from ENO that would mitigate any harm to New Orleans ratepayers caused by the early termination. Directing ENO to pursue a potential plant in New Orleans for Council consideration was one of several elements of a package designed to give the Council effective options to protect New Orleans ratepayers. Specifically, some of these key concessions included: (1) the creation of a separate Transmission Pricing Zone within the Midcontinent Independent System Operator, Inc. for New Orleans; (2) the option for ENO to participate in up to a 30% share of the next LPSC?certi?ed combined cycle gas turbine in the Amite South region constructed or acquired by a purchase power agreement by ELL or (3) the option for ENO to acquire 10% of the capacity and energy of any and all future CCGT acquisitions made by ELL and/or EGSL within Alnite South in the event ENO did not acquire Union Power Station Power Block 1 (?Union Power?); and (4) an agreement from ENO to use reasonable diligent efforts to pursue the development of at least 120 MW of new?build peaking generation capacity within the City of New Orleans at any appropriate site, not limited to only the Michoud or Paterson sites. The Council's decision to approve request to purchase Union Power alone is expected to save customers approximately $175 million based on ENO estimates. Likewise, the Council's decision to approve the FERC settlement, which allowed ENO to participate in MISO with a New Orleans-only TPZ will save ENO customers tens of millions in additional dollars and customers will avoid the burden of bearing a disproportionate share of transmission project costs. As to possible additional generation, the Council did not approve any specific resource or project by adopting the FERC Settlement Agreement. Rather, the Council, facing the loss of two significant generation units at ENO's Michoud facility that accounted for approximately 784 MW of capacity, wisely built in certain protections for ENO customers to allow for the addition of a new generation resource in the future, if such addition was supported in future proceedings. 11. Dr. Wright's Testimony Includes Legal Conclusions and Opinions Regarding Claims of Due Process A. The Advisors' Roles as a Party in Utility Proceedings and Providing Assistance to the Council in the Decision Making Process Does Not Violate Any Party's Rights to Due Process On page 6 of Dr. Wright's Supplemental Testimony, she provides discussion of purported ?con?icting? roles of the Council's Advisors and claims that somehow these roles should be considered a violation of the parties? due process rights. Although it is unclear from Dr. Wright's Supplemental Testimony whether she is relying on the 5th Amendment to the US. Constitution, 1057 i3369W-l the 14th Amendment to the US. Constitution or Section 2 of the Louisiana Constitution of 1974, all of which contain due process clauses, it is evident that she is making a constitutional argument that should be stricken from the record. Such an analysis is beyond Dr. Wright?s stated quali?cations and experience and, moreover, not one that can be addressed by any form of expert testimony. Even if Dr. Wright's testimony in this regard were considered admissible, which it is not, the role of the Council's Advisors in utility proceedings is a matter of well?settled Louisiana and federal law. It is abundantly clear that a party's due process rights are not violated by the Advisors' participation in utility rate proceedings as parties in the case as well as providing advice to Councilmembers as part of the decision making process. This exact question was addressed by the Louisiana Fourth Circuit in a 1991 litigation involving a Council proceeding; The law, both federal and state, is that a ?separation of functions' is required in adjudicative proceedings, but not in legislative proceedings. The federal Administrative Procedure Act requires separation of functions in adjudicative proceedings, but explicitly exempts 'proceedings involving the validity or application of rates, facilities, or practices of public utilities.? Federal case law has established that separation of functions is not required in ratemaking proceedings on either statutory or constitutional due process grounds. The US. Supreme Court has stated that under federal and state case law, the combination of investigative and judging functions is not a denial of due process. In Louisiana, the state Administrative Procedure Act distinguishes between judicial proceedings, in which separation of functions is required, and rulemaking proceedings, in which it is not (citations omitted).10 Moreover, in Gulf States Utilities Co. v. Louisiana Public Service Commission, the Louisiana Supreme Court rejected Gulf States? contention that it was denied due process on the basis that the Commission?s majority opinion was authored by the Commission's consultants and '0 Alliance for Affordable Energy, Inc. v. Council of City of New Orleans, 578 So. 2d 949, 968 (La. Ct. App.4th Cir.), (emphasis added), writ granted sub nom. Alliance for Affordabie Energy, Inc. v. The Council of the City of New Orleans, 585 So. 2d 554 (La. 1991), writ granted, 585 So. 2d 555 (La. 1991), and vacated sub nom. Alliance for Affordable Energy v. Council of City of New Orieans, 588 So. 2d 89 (La. 199i). Decision vacated for reasons other than the proposition of law cited herein. 105713369W?l 10 counsel who had acted as the company?s adversaries during the hearings. The Court noted that the Commission is statutorily permitted to retain special counsel, engineers, consultants, etc. to assist its economics and rate analysis division in ?evaluating, reviewing, and representing the commission in matters affecting services and rates charged by public utilities to Louisiana consumers or the judicial review thereof.? '1 Like the LPSC, the Council has the same authority to retain legal counsel, engineers, and consultants to assist with utility matters.12 The contention that a violation of due process occurs when such staff members take an adversarial stance in hearings and then advise the Commission regarding its decision has been consistently rejected by Louisiana and federal courts.13 The case law rejects generally the proposition that the combination of ?lnctions is a denial of due process, particularly where the proceeding is rulemaking or ratelnaking. ?4 The Administrative Procedure Act is also consistent with the jurisprudence on this issue. The Act speci?cally exempts proceedings involving rates of public utilities from the separation of functions requirement imposed on adjudicatory proceedings.15 Were any of this not the case not only would the Advisors be precluded from performing their functions, but so too, would the Council itself in this docket. For more than 50 years, the law has expressly concluded that advisors engaged by utility regulators to participate as parties to rate proceedings may also assist the regulatory body in the decision-making process. Accordingly, Dr. Wright's Supplemental Testimony opining on due process is contrary to settled state and federal law, totally outside of her stated expertise and, in 45: 1 163.3; Gulf States Utils Co. v. Louisiana Pub. Serv. Comm'n. 578 So. 2d 71, 32 (La. 1991) 12 Home Rule Charter of the City of New Orleans, Article Section 3-130. 13 American Telephone Telegraph, 449 F.2d 439 Wilson Co. v. United States. 335 F.2d 788, 796 (7th Cir.1964). '4 Id. ?5 5 U.S.C. 554(d). 1057 i 11 any event, not properly the subject of expert testimony. Therefore, this portion of Dr. Wright?s testimony is inadmissible and should be stricken from the record. B. Dr. Wright's Legal Conclusion That ?There was a Separate Process Outside of Council Regulations, Public Notice, and Council Utility the Construction of a New Power Plant? is Not Based in Any Suf?cient Facts The assertion on page 4 of Dr. Wright's Supplemental Testimony that there was a ?separate process outside of Council regulations, public notice, and Council utility dockets for the consultants to work out with Entergy the Speci?c features for the construction of a new power plant? is simply mistaken and without factual or evidentiary support. The Settlement Agreement was fully vetted in not one but two proceedings, one at FERC and one before the Council, both of which were publicly noticed and open to intervention and comment from the public in accordance with regulations and the Council's procedures, reSpectively. The process in which the Council's Advisors initially recommended that ENO use reasonable diligent efforts to pursue the deveIOpment of at least 120 MW of new-build peaking generation capacity within the City of New Orleans was a fully public and open process at FERC. FERC maintained jurisdiction over matters concerning the Entergy System Agreement and a public notice was issued regarding ESI's request to shorten the System Agreement termination notice period on October 15, 2013. Comments and interventions in the FERC docket to consider ESI's request were due on November 12, 2013. It should be noted that the New Orleans City Council and others ?led timely intervention requests in the FERC docket, but neither the DSCEJ, the Alliance, 350 Louisiana New Orleans, nor the Sierra Club intervened or otherwise participated in any mamier in those proceedings. 1057 i3369?iV-l 12 On November 21, 2013, after proper noti?cation, the Council adopted Resolution No. 13?432. Docket No. was established to investigate the prudence and reasonableness of shortening the System Agreement termination notice provision and any resulting impact on New Orleans ratepayers. DSCEJ did not intervene or otherwise participate in Docket No. UD- 13-03 either. Also on November 21, 2013, the Council adopted Resolution No. after being properly noticed, which established Docket No. UD-13-04 to consider issues related to the prudence of support of a Louisiana?wide TPZ and the resulting impact that a Louisiana? wide TPZ would have on New Orleans ratepayers. Again, DSCEJ did not intervene or otherwise participate in Docket No. On August 14, 2015, ESI ?led the Settlement Agreement in the public proceeding at FERC, the contents of which are the focus of Dr. Wright's Supplemental Testimony. Thereafter, on August 27, 2015, ENO ?led a ?Notice of Settlement in FERC Docket in both Council Docket Nos. and so that the Council would be able to publicly consider whether the proposed Settlement Agreement was in the public interest. In order to assure a full public process in accordance with Council procedures in addition to the public process occurring at FERC, the Council, on September 3, 2015, adopted Resolution No. 437, which stated that it was ?the Council?s desire that all parties affected by the Settlement Agreement be provided an opportunity to understand the proposal, submit comments and have their views considered prior to the Council's ?nal consideration of the Settlement Agreement.? (emphasis added) All parties had the opportunity to submit comments regarding the Settlement Agreement. Again, DSCEJ was not a party to either of these Council dockets and did not submit comments. The Alliance was a party, but chose not to submit written comments on the settlement. After 105713369W-l 13 receiving no opposition from any party or the public at large, on November 5, 2015, after proper notice, the Council adopted Resolution No. which approved the FERC Settlement Agreement as being just, reasonable and in the public interest. Despite Dr. Wright?s testimony that the Council conducted a ?separate process outside of Council regulations,? the evidence clearly demonstrates that there were multiple opportunities for parties and members of the public to weigh in at FERC and in the local Council dockets on the proposed FERC Settlement Agreement. However, neither the Alliance, DSCEJ, 350 Louisiana? New Orleans, nor Sierra Club availed themselves of any of these opportunities. Now, nearly two years after the FERC Settlement Agreement was adopted by the Council, these same organizations, through Dr. Wright?s Supplemental Testimony, question the Council's decision by claiming due process de?ciencies despite the fully transparent, legal and public process employed. As such, Dr. Wright?s Supplemental Testimony in this regard is contrary to the facts and law, outside of her stated expertise, and, therefore, inadmissible and should be stricken from the record. Conclusion Evidence in this proceeding should be excluded when it is not probative and relevant.16 Evidence shall not be admitted if it is adverse to the substantive rights of any party or parties.? Simply put, the portions of Dr. Wright's Supplemental Testimony in this proceeding ?led on October 16, 2017 contain legal opinions and conclusions that are outside of her stated quali?cations and experience, contrary to the facts and law and are therefore inadmissible and should be stricken from the record. For these reasons, the Advisors? Motion to Strike should be granted. 1: City Code ofNew Orleans, 158-476. Id. 105713369W-l l4 RESPECTFULLY SUBMITTED: Wee (2'23594) Pres ey R. Reed, Jr. (42065) Emma F. Hand (476001) J. A. ?Jay? Beatmann, Jr. (LSBA #26189) DENTONS, US LLP 650 Poydras Street, Suite 2850 New Orleans, LA 70130 Telephone: (504) 524-5446 Facsimile: (504) 568?0331 Email: iav.beatmann@dentons.corn and Walter J. Wilkerson (LSBA #13473) Wilkerson Associates, PLC 650 Poydras Street, Suite 1913 New Orleans, LA 70130 Telephone: (504) 522?4572 Facsimile: (504) 522-0728 Email: wwilkerson@wilkersonplc.com Advisors to the Council of the City of New Orleans CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon the following parties of record by electronic mail on this 16th day of November 2017. . A. "Jay" ?an] Jr. 15 BEFORE THE COUNCIL OF THE CITY OF NEW ORLEANS APPLICATION OF ENTERGY NEW ORLEANS, INC. FOR APPROVAL TO CONSTRUCT NEW ORLEANS POWER STATION AND REQUEST FOR COST RECOVERY AND TIMELY RELIEF DOCKET NO. UD 16-02 PRE-FILED SUPPLEMENTAL TESTIMONY OF DR. BEVERLY WRIGHT, DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE, INC. ON BEHALF OF DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE, ALLIANCE FOR AFFORDABLE ENERGY, 350 LOUISIANA NEW ORLEANS, AND SIERRA CLUB October 16, 201? EXHIBIT "an Pie-?led Supplemental Testimon}r of Dr. lieverl}.r WrighL Concerning the Application of Enterg},I New Deep South Center for Environmental Justine Orleans. Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Docket uo-is-uz (October 16. 20m Cost Recovery and Timely Relief TABLE OF CONTENTS I. Introduction I II. Summary of Prior Testimony I Purpose of Supplemental Testimony 3 IV. The Con?icting Roles of the New Orleans City Council Consultants Undermine the Fairness of This Proceeding 3 Entergy?s False Statement Resulted in No Environmental Assessment of Its Industrial impact on Nearby Neighborhoods and Schools 7 VI. Entergy Has Repeatedlyr Overestimated Customer Need for the Gas Plant 9 Exhibits to Testinttzin}r [2 LIST OF EXHIBITS Exhibit 1. New Orleans. Inc?, Environmental Assessment Statement, August 5, 2004 Exhibit 2. Louisiana Department of Environmental Quality. Map of Michoud Site and Surrounding Area Exhibit 3. Deep South Center for Environmental Justice, Entergy?s Decreasing Forecasts of Customer Need for liilectricitj?.r in New Orleans, LA Pro-?led Supplemental 'I?astimortj,r of Beverly Wright, i411)" Concerning the Application of Eutergy New Deep South Center for Environmental ustioe Orleans, Inc. for Approval to Construct Before the New Orleans City Council . New Grieans Power Station and Request for Docket UD-itS-{tz (October 16. Elli?) Cost Recovery and Titrtely Relief I. Introduction Q1. Please state your name anti occupation. A. My name is Beverly Wright. lam the Executive Director of the Deep South Center for Environmental Justice. Q2. Please describe the Deep South Center for Environmental Justice. A. The Deep South Comer for Environmental Justice is a nonpro?t organization in New Orleans, founded in 1992 that conducts research and provides educatiooal and policymaking opportunities for communities, scienti?c researchers, and policymakers to promote the rights. of all people to be free from environmental harm as it impacts health, jobs, housing, education, and quality of life, 11. Summary of Prior Testimony Q3. Please provide a brief summary of your January 6, 2017 Hire-ct Testimony. A. In my direct testimony, I presented as environmental justice analysis of the racially discriminatory effects of proposed New Orleans Power Station, a gas power plant. For this analysis, I examined the following: I whether there were meaningful opportunities for public notice and participation in the integrated Resource Plan prepared by Entergy New Orleans, Ina; t. public response to the IRP and Entergy?s ?rst application for City Council approval of the proposeti gas power plant; Entergy?s decision to select a site for the proposed gas power plant without arty criteria or analysis to consider the impact of a gas power pleat in close geographic proximity to Pro?filed Supplemental of Dr. Beverly Wright. Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans. Inc. for Approral to Construct Before the New Orleans City Councii - New Orleans Power Station and Request for Docket {October 16. 2017) Cost Recovery and Relief neighborhoods and schools. where residents are predominantly African American and Vietnamese American: and Ir the steps taken by Entergy in its applications for environmental permits to avoid assessment of the negative impacts of the gas power plant on the health. safety. environment. and qualityr of life of the residents living nearby the Michoutl site. Based on this analysis. I found that the decisions and circumstances leading up to and including ?rst application for Cit},r Council approval of the proposed gas power plant follow the pattern of systemic environmental racism that disproportionately horde-es communities of color with toxic industrial pollution and hazards. I concluded that. if approved. the proposed Entergy gas power plant would have the racially discriminatory effect of burdening predominantly African American and Vietnamese American residents with toxic air pollution and other environmental hazards. I. therefore. recommended that the City Council of New Orleans den},r the application by E?ntergy for the proposed gas power plant. Q4. In regards to Entergy?s second application for the proposed gas plant, do you have any changes to the conclusions you reached in your Direct Testimony? A. I have no changes to make to in}; Direct Testimony. The raciallyr disproportionate impacts of the proposed Entergy gas power plant and the woefully inadequate process for public input that excluded the participation of people who would he most impacted by the proposed power plant have not been addressed. much less remedied, in the second application ?led by Entergy. Entergy?s second application seeits Council approval of either a 226 MW combustion turbine gas plant or reciprocating gas engines with a capacity of 128 MW. in} itPre-filed Supplemental Testimony of Dr. Beverly Wright. Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans. Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Duckel cots-02 {October 16. rum Cost Recovery and Timely Relief Purpose of Supplemental Testimony Q5. What is the purpose of your Supplemental Testimony? A. in reviewing Entergy?s second application for the New Orleans Power Station and related information. I have determined there are significant problems regarding l) the fairness of this utility docket proceeding being undermined by the con?icting roles of the New Orleans City Council Consultants to recommend the City Council agree to Entergy developing a new power plant on potential sites in East New Orleans and also to advise the Council on whether the proposed Entergy gas power plant is in the public interest: the false statement made by Entergy which resulted in there being no environmental assessment of its industrial impact on nearby residential neighborhoods and schools in East New Orleans. where residents are predominantly African American and Vietnamese American: and (3) Entergy?s repeated overestimations of customer need for the proposed gas power plant. These problems compound those raised in my prior Direct Testimony. They constitute additional grounds for the City Council to deny Enlergy?s application for the proposed gas power plant. IV. The Con?icting Roles of the New Orleans City Council Consultants Undermine the Fairness of This Proceeding Q6. What is the problem regarding the fairness of the process to determine whether the Entergy gas power plant is in the public interest? A. The problem is that the New Orleans City Council Consultants. who are parties to this utility docket proceeding and have the responsibility of advising Councilmembers on whether or not the proposed Entergy gas power plant is in the public interest. are the same individuals who also recommended the City Council agree to Entergy building a new power plant in New Orleans accountantPro-?led Supplemental Testimony of Dr. Beverly Wright. Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans. Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Docket LTD-164112 {October 16. Bill?) I Cost Recovery and Timely Relief with the Michoud site as a potential location for the power plant. The City Council followed this recommendation when it issued Resolution [Lift-524 by majority vote. which states as follows: WHEREAS. ENG [Entergy New Orleans, [no.1 will use reasonable diligent efforts to pursue the development of at least 120 MW of new-build peak generation capacity within the City of New Orleans. As part of this commitment. END will fully evaluate Michoud or Paterson. along with any other appropriate sites in the City of New Orleans, as the potential site for a combustion turbine or other peaking unit to be owned by EN 0. or by a third party with an agreed?to PPA to END. This evaluation will take into consideration, among other material considerations. the results of the Michoud site analysis that was completed in connection with the Summer 2014 Request for Proposal: and WHEREAS. END commits to use diligent efforts to have at least one future generation facility located in the City of New Orleans. . . New Orleans City Council Resolution R-15-524. November 5. EDIS [emphasis added]. The New Orleans City Council Consultants advised the City Council to enter into this agreement with Entergy and issue Resolution R-15-524 more than one year prior to Entergy?s submission of the controversial Integrated Resource Plan on February 1, 201-6. In the Entergy argues in favor of constructing a new gas power plant. The Council's agreement and resolution occurred before utility forecasts. analyses. modeling. and data reviews required for the 19.? could be completed. Thus. it is appears that there was a separate process outside of Council regulations. public notice. and Council utility dockets for the consultants to work out with Entergy the speci?c features - ?at least 120 MW of new-build peak generation capacity" - and potential sites ?Michoud or Paterson" in East New Orleans for the of a new power plant. 0n the advice of the New Orleans City Council Consultants. the City Council issued two subsequent resolutions establishing a period of intervention and procedural requirements for the consideration of Entergy?s gas power plant application (Resolution 51? 16-332} and revising the 4 ItI?m-filed Supplemental Testimony of Dr. Beverly Wright. Phil, Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans. Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Docket {October 15. an Cost Recovery and Timely Relief procedural schedule for this application (Resolution R- [5-506). Although each resolution presents a chronology of events leading up to Entergy?s application. each omits any reference to the City Council?s Resolution 11-15-524. in which the City Council agrees to Entergy pursuing the development of a new gas power plant in New Orleans. These resolutions. prepared by the New Orleans City Council Consultants. leave the public in the dark as to the City Council?s prior agreement with Entergy to build a new gas power plant. The New Orleans City Council Resolution 11-16-506 indicates that the utility consultants disagree with the proposed Entergy power plant having a capacity that is larger than 194 MW. This would be consistent with their recommendation for a power plant with a capacity of at least 120 MW. Furthermore. it is worth noting that the New Orleans City Council Consultants drafted a resolution (Resolution R-16-2SJ for the City Council to approve the EDIS Integrated Resource Plan which concludes that a new gas power plant is needed in the city of New Orleans. The consultants presented this draft resolution at the public meeting of the Council?s Utility. Cable. Telecommunications and Technology Committee on December 14. 2016. The was the subject of signi?cant criticism by some of the lntervenors in this proceeding as well as every person who gave oral comments at the June 15. 2016 public hearing on the Integrated Resource Plan. which I analyzed in my prior Direct Testimony. However. during the UCIT Committee meeting, the New Orleans City Council Consultants vocally opposed the suggestion made by representatives of the Alliance for Affordable Energy to change the word "approved" to ?accepted" in the draft resolution with the meaning that the City Council accepts the IRP without judgment in favor of or otherwise af?rming the The City Council voted to defer the draft [Pro-?led Supplemental Testimony of Dr. Beverly Wright. Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans. Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Docket uo-ia-uz (October 16. com Cost Recovery and Timely Eclici? resolution until its next meeting in January 2017. After hearing from constituents who opposed approval of the IRP. the City Council unanimously voted to change the language from ?approved" to ?accepted? in Resolution R-lT-l?? that was passed on February 23, 2017. As I explained in my prior Direct Testimony. my work for environmental justice has involved developing institutional standards to ensure effective and meaningful public participation in governmental decisions. on matters involving proposed industrial developments and other environmental concerns. These standards emphasize fairness and unbiased decision- making. A scenario in which a decision-maker or an of?cial advisor to a decision-maker is also a proponent of a proposed development would be an anathema to these standards. I respect the authority of the City Council to determine whether or not Entergy?s gas plant application is in the public interest. However. the actions taken by the New Orleans City Council Consultants taint this utility docket proceeding. The record shows that the consultants. as parties to this proceeding. have the privilege to advise the City Council on whether it is in the public interest to allow to develoo a new gas power plant. but such advice is compromised by the consultants? recommendation that the City Council agree to this development prior to any public review. The con?icting roles played by the Council?s utility consultants undermine the guarantee of a fair process that New Orleans residents deserve. Their con?icting roles warrant examination of whether this utility docket proceeding assures due process for all parties and the public. Pro-filed Supplemental of Dr. ?ererly Wright. Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans, Inc. for Approval to Construct Before the New Orleans City Council - New Orleans Power Station and Request for Docket {October 16. Cost Recovery and Ti meltr Relief V. Entergy?s False Statement Resnited in No Environmental Assessment of Its Industrial Impact on Nearby Neighborhoods and Schools Q7. Please explain the false statement mane by Entergy that resulted in there being no environmentai assessment of industrial impact on nearhpr resi?ential neighborhoods and schools. A. Entergy?s ?rst Part 70 air pennit application for the Michoud power plant in 2W4 required an Environmental Assessment Statement In the EAS, Entergy is obligated to identify the impacts of its power plant on the environment. any alternatives to the. power plant, and measnres to avoid adverse environmental effects among other assessments. In addition, the Environmental Assessment Statement requires Entergy to answer the following question: ?Does prospective site pose potential health risk as de?ned by proximity to: residential areas, schools, hospitals, etc." Entergy provided the following false statement to this question: . . . . There are no nearby residential areas. The topographic map further illustrates there are no schools, hospitals, or other public places in the vicinity of the plan: site. Enterg}; New Orleans. Inc., Appendix Rew?sedf?rpanded ?ii" Questions? Decision: Entergy Michomi 2 Repairer-Eng Projecr. Part. 70 Operating Permit. Michood Electric Generating Plant. LDEQ Permit No. Oct. 12, 2004. Activity No. PER19960091, EDMS Doc. Nos. 241222?l. 2473135. Entergy?s full Environmental Assessment Statement is attached hereto as Exhibit 1. At the time Entergy submitted its Environmental assessment Statement. to the Louisiana Department of Environmental (?nality,r in 2904 and continuing today, predominantly African American and Vietnamese American families live and attend schools in close geographic .3 Pro-?led Supplemental Testimony of Dr. Beverly Wright. Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans. Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Docket {October 16.20?] Cost Recovery and Timely Relief proximity to the Michoud site. where Entergy now proposes to build a gas power plant. As a result of Entergy's false statement. there has been no environmental assessment of the Michoud power plant vis?it-vis nearby neighborhoods. Furthermore. and as explained in my prior Direct Testimony. Entergy intends to apply for a renewal and modi?cation of the Part 70 air permit for the proposed gas power plant that does not require an Environmental Assessment Statement. From the record. it appears that Entergy?s false statement was overlooked by the LDEQ when it issued the initial Part TO air permit for the Michoud Electric Generating Plant on October 12. 2004 (Permit No. However. the recent public notice of the proposed Part 70 renewal and modi?cation permit for the proposed Entergy gas power plant (Permit No. 214m14?-V5} includes a map of the area surrounding the Michoud site. A close-up view of this map shows the residential neighborhoods and two schools located within two miles of the Michoud site. The LDEQ map is attached hereto as Exhibit 2. The Environmental Assessment Statement is an important requirement that is supportive of environmental justice goals. However. Entergy's egregious decision to not comply with this requirement by submitting a false statement. in 2004 and not correcting the EAS in its recent application for a Part 70 air permit has denied the rights of nearby residents to information about the impacts of Entergy's former and proposed power plants on their health. safety. environment. and quality of life. The residents have also been denied the opportunity for mitigating. if not eliminating. any of the adverse impacts that would be revealed by a factual and accurate Environmental Assessment Statement. ?lb-mmPre-fiied Supplemental Testimony of Dr. Beverly Wright, Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans, inc. for Approval to Construct Before the New Orleans City Councii New Orieans Power Station and Request for Docket (October 16. Bill?) Cost Recovery and Ti nick}t Relief VI. Entergy Has Repeatedly Overestimated Customer Need for the Proposed Gas Plant QS. Please explain Entergy?s repeated overestimatioas of customer need for the gas plant. A. Energy requested a suspension of this utility docket proceeding in order to consider new information showing customer need for electricity in the future is lower that: Eatergy?a previous forecast. Purportedly it was; based on this new infomatioa that i-Eotergj,r ?led the second application, which presents two optioas for a gas power plant. ?The Deep South Center for Environmental Justice. the Sierra Club. and the Alliance for Affordable Energy jointly requested that Entergj,r publicly disclose the new iaformation, which it did. In my analysis of Entergy?s new forecast of decreased customer need for electricity and its prior forecasts of customer need, I ?nd that there is a pattern of repeated overestimations without explanation. For example, on February 17, 2017', Eatergy provided parties to this utility docket proceeding its revised forecast showing customers in New Orleans will need 1,282 MW of electricity the year 2030. This is a drop of 54 MW in customer steed from Eatergy?e prior forecast of 1,336 MW in its initial application for City Council approval of the gas power plant that was ?led on June 20. 2015. In tarot Enterg'y?s forecast of 1.336 MW is another drop in customer need, this time, by 65 MW from its forecast in the Integrated Resource F?Iao ?led on February 1, EMS. tier each of these substantial decreases in customer need for electricity, Entergy has not explained or otherwise disclosed what changets) contributed to the decreasing customer need. The Deep South Center for Enviromnental Justice created the graph. Entergy ?s Decreasing Forecasts of Customer Needfor Etectricigr in New Orleans, L4, as a visual representation of Eotergy?s forecast data compiled from Eatergy?s revised forecaat issued earlier 9 Pro-filed Supplemental 'I'elztimoo}r of Dr: Beverly Wright, $31.13., Concerning the Application of Entergy New Deep South Center for Environmental Justice Orleans, Inc. for Approval to Construct Before the New Orleans City Council New Orleans Power Station and Request for Docket (October lo. 201? in Cost Recovery and Timely Relief this year, initial gas plant application to the City Council in 2016 (Direct Testimony of Seth E. Cureiegtoti. page 18. Table 2), and Integrated Resource Plant in 2015 (page 79, Table 2-). The graph is attached hereto as Exhibit 3. Q9. How does- repented overestimation of customer need factor in your environmentni justice analysis? A. Entergy?s repeated overestimation of customer need for electricity has a direct bearing on my environmental justice analysis. I must emphasize the point that Entergy uses its forecasts of customer need to claim there is justi?cation for building. a new gas plant. near predominantly African American and Vietnamese American families residing in East New Orleans. is asking the City Council to approve at project for which, by own admission, there is decreasing need anti increasing altemetivcs. Such approval would result in racially disproportionate pollution burdens and other industrial hazards. including the risk of gas explosions, as well as accelerated land subsidence and impaired levee structure as a result of Entergy?s past and proposed groundwater use, which increase ?ood risks. As starting point, typical etwiromnental assessments require proof that there is a need for the project, no better alternative to the project, and no alternative site for the project. Entergy fails to meet this basic burden of proof. Furthermore, the repeated orerestimstions of customer need along with the failure to disclose the rationale for the decreasing forecasts indicate that Entergy is either incapable of or unwilling to properly calculate how much electricity will he needed in New Orleans. This puts the entire city at risk of making an unwise investment. 10 I?m-?led Supplemental Testimony of Dr. Beverly Wriglm $31.33., Concerning the Application of Eutergy New {Jeep South Center for Environmental Justice. Orleans, Inc. for Approval to Construct Before the New Orleans. ity Council New Q?eans Power Station and Request for Docket {October 16. Bill?) 1 C051 Recovery and Tinwly Relief The repeated overestimatiom of cuslomor need without explanation is artwilrary. One can iofer that Emergy?s goal may no: ho meeting customer new] for elecoicily. but. instead, meeling a bottom line for profit that is currently estimated to be in excess of $20 million for either gas; power plan}! option in Enterng second application. Q10. Does this conclude your testimony? A. Yes. 11 AFFIDAVIT STATE OF LOUISIANA PARISH OF ORLEANS I, Dr. Wright, dn hex-thy swear under the penalty of perjury the following: That I am the person identi?ed in the attached prepared testimony and that such was pmparcd by m: under my direct supervision; that the answers and infannation set forth therein are true and accurate: to the best of my persunai kn-nwledgc and belief: and that if asked the questions set forth herein, my answers would. under oath. remain the same. 45% 1/1ng Beverly Wright, .D. at; swan" TO AND SUBSCRIBED BEFDRE ME THIS DAY OF mw?. PAULA VINCENT too-mun norm! PUIUG. ?no? Ont-Man: Plum. mum mm HI NOTARY PUBLIC My commission upires;