BEFORE THE MISSISSIPPI PUBLIC SERVICE C0MMISS ENTERGY MISSISSIPPI, LLC ENTERGY MISSISSIPPI, LLC'S 29 NOTICE FILING IN RE: RP EC-123-0082-00 2019-UA-232 ENTERGY MISSISSIPPI, LLC'S RESPONSE IN OPPOSITION TO BIGGER PIE FORUM, LLC'S MOTION TO INTERVENE Entergy Mississippi, LLC ("Entergy Mississippi," this Response in Opposition to Bigger Pie Forum, that such general interests will be more or the "Company") files LLC's ("Bigger Pie") Motion to Intervene. Based on past Commission rulings and policy, Bigger Pie in this proceeding and its generalized interest "EML," is not does not have a substantial interest sufficient to merit intervenor status given than adequately represented by the Mississippi Public Service Commission ("Commission"), Public Utilities Staff ("Staff"), and the office of the Mississippi Attorney General. The Company respectfully urges the Commission to follow its past practice with respect to denying Bigger Pie's intervention, additional entities that seek intervention based not oppose the Commission on similar grounds as as there are Bigger Pie. EML allowing Bigger Pie to participate in this docket as witness, which will provide them with ample opportunity to make the Commission any concerns that Bigger Pie has multiple a does public aware of regarding EML's proposed IRP. BACKGROUND 1. On November 22, 2019, the Commission adopted its Final Order Amending Rule 29 to Establish Integrated Resource Planning and Annual Energy Delivery Reporting Requirements in Docket 2018-AD-64. Bigger Pie **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** was actively involved as a party in the rulemaking docket, filing comments/testimony comments/testimony 2. on on July 31, 2018 and supplemental September 4, 2018. The new Rule 29 ("IRP Rule") of the Public Utilities Rules of Practice and Procedure of the Mississippi Public Service Commission and Utilities Staff Public ("Procedural Rules") defines the relationship of the Commission and utilities to IRP. The IRP process does not drive a specific outcome or produce specific utility investment decisions. Rather, it provides transparency The periodic filing by electric utilities of an IRP report provides transparency for the Commission, Mississippi ratepayers, and other interested stakeholders. ****** The IRP reporting requirements embodied in this Rule are not intended to drive any specific outcome or dictate any specific utility investment decisions. To that end, these IRP reporting requirements do not supplant or equate with a prudence determination or otherwise replace the Commission's existing regulatory processes for petition and approval of requisite certificates of convenience and necessity for new resources. RP 29.102 (emphasis added). 3. The IRP Rule requires each electric IRP Rule to file a Notice of IRP Cycle in utility subject a new Commission docket. 2019, EML filed its Notice of IRP Cycle in this docket. See provision of the On December 23, The Commission sent notice of EML's filing to the Clarion Ledger, which published the notice Pie moved to intervene on January 21, 2020. to the IRP on January 7, 2020. Bigger "Motion of Bigger Pie Forum, LLC to Intervene," Docket 2019-UA-232, January 21, 2020. Bigger Pie articulates its mission as "research[ing] and shar[ing] educational information that fosters greater economic freedom and individual responsibility." Motion See -2- **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** to Intervene at p. 1 and ' Bigger Pie states. that it pursaes.. its mission "by https://biggerpieforum.orglabout/. performing timely, accurate research on key issues and marketing these findings to [its] primary audiences: Mississippi's Congressional Delegation, Mississippi's State Legislature, Mississippi citizens communities." electricity is a through various media & policy and the- academic vehicles Id. Bigger Pie notes in its Motion to Intervene that it "believes the cost of vital component in the ability of many business owners.to experience greater economic freedom by starting and/or growing their enterprises. actively engaged since 2010 in studying, commenting on, and . . Bigger Pie has been educating the public about regulatory dockets before the Commission involving electricity matters." See Bigger Pie's Motion to Intervene, pp. 1-2. Bigger Pie 4. no factual have 2. a is a media and general advocacy group. Bigger Pie has provided legal support to support its claims that "Bigger Pie.and its readers in Mississippi or substantial interest in the outcome of this proceeding." Intervention should be denied because Bigger Pie has substantial interest in the outcome of this docket that will not another party nor did Bigger Pie state an See Motion to Intervene at p. not shown that they have be a aðequately represented by interest different that the general public's interest. LEGAL AUTHORITY A. Intervenors Must have a proceeding. See proceeding when the movant or outcome Substantial Interest in the Proceeding The Procedural Rules allow intervention 5. interest in a of the proceeding only by parties with a substantial RP 6.121.1 ("any person may be permitted to intervene in. has a a substantial interest relating to the property, transaction at issue and the movant - 3 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** is so situated that the disposition of the proceeding may as a practical matter impair or impede his her ability to protect that or interest." (emphasis added) RP 6.121 6. states: is "[U]pon timely application, anyone shall when the applicant claims subject of the action and impair matter similar to Mississippi Rule of Civil Procedure 24(a)(2), which or impede an permitted to mtervene interest relating to the property he is so his be m an action transaction which or situated that the disposition of the action may as a . . is . the practical ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." B. The Commission Recently Affirmed the Standards for Intervention When comparing RP 6.121 to Miss. R. Civ. 7. Commission a has affirmed that "[u]nlike civil courts, intervention [at the Commission] of right but matter 24(a)(2), however, the P. is only granted the Commission's at discretion." See is not "Order Consolidating Issue and Denying Intervention," Notice of Intent of Entergy Mississippi, Inc. to Implement Net Metering Energy Rate, Docket No. 2016-UN-32 (May 13, 2016) (hereafter "2016 Order Denying Intervention"). The 2016 Order Denying Intervention confirms the long-standing principle that "[g]enerally, the grant or denial of a petition to intervene is within the sound discretion of the administrative agency involved."1 8. as it is The Commission has looked to the Mississippi Supreme Court for guidance, allowed to do, regarding the standard for intervention. movant must assert a 'direct, substantial, "In order to intervene, a legally protectable interest' in the proceedings... I 2 Am. Jur. 2d Administrative Law § 309 (citing Cortland Glass Co., Inc. v. Angello, 300 A.D.2d 891 (3d 2002); West Chester Area School Dist. v. Collegium Charter School, 571 Pa.503 (2002). - 4 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** Dep't A movant found to An "interest" claim to is be 'a real party in interest' generally establishes sufficient interest.' defined as "[a] legal share in something; all right in property."' or Madison HMA, Inc. v. St. Dominic-Jackson Mem'l Hosp., The Commission 9. a legal or . . equitable 2016 Order Denying Intervention, pp. 3-4 (citing See (citing Black's Law Dictionary 828 (8* part of or . ed. also has 3d 1209, 1216 (Miss. 2010) 35 So. 2004) (emphasis added)). clarified that it will balance the factors involved in the standard for intervention: timeliness, substantial interest, impairment of interest, and adequacy of representation. See 2016 Order Denying Intervention, p. 4. "In balancing the relevant factors, the Commission considers the availability of public witness status that allows non-parties to submit written comments and evidence for Commission consideration." Id. (citing RP 6.121.7) The IRP Rule participate 6.121. as an automatically allow any interested party to does not intervenor; it requires that "interested parties" RP 29.105. RP 6.121 then categorizes parties See public witnesses. Rule 29.101.8 defines a as move to intervene under RP intervenors, other parties, or "stakeholder" as "[a]ny interested party eligible to proceedings pursuant to Rule 6.121 of the appear and/or intervene in Commission [Procedural Rules]." Thus, the IRP Rule specifically requires interested parties to satisfy the requirements for intervention of Rule 6.121 and contemplates that, failing to qualify intervenor, 10. a party could be given public witness status only. "Additionally, the Commission considers its own duty, as delegated by the Legislature, to promote the public interest in its consideration of all matters before it, as as an as well the duty of the Public Utilities Staff to 'represent the broad interests of the State of Mississippi by balancing the respective of the residential, commercial concerns - 5 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** or industrial ratepayers, and the state and its agencies and departments, and the public utilities.'" pp. 4-5 (citing Miss. Code Ann. 77-3-2, § § Id. at 77-3-1). Precedent and Policy Demonstrate that a Generalized Interest in the Proceeding is Not Adequate to Merit Intervenor Status C. The Commission's In the 2016 Order Denying Intervention, the Commission 11. exercised its discretion and denied the interventions of several parties that it found to have but not substantial, interest in the proceeding. interest promotes, among other things, efficiency particular and significant interest will be particularized matter consideration costs on the or that might "Requiring the existence of thoroughness because and motivated and to protect that vested interest, drawing can be have gone unnoticed The Rules are crafted to Denying Intervention, p. party with a or not a been given sufficient and a utility's efforts to defend appeals, among other fairly judge the merits of the intervention." 2016 Order 6. Public Witness Option Provides Intervention in a Proceeding D. The 12. substantial privilege that necessarily imposes a respond to data requests, engage in regulatory proceedings things. a expected to present evidence of course, ratepayers ultimately bear the cost of and a generalized, and Staff's attention to the Commission's evidentiary support. Interventions are utility, a When intervention is inappropriate, Meaningful Alternative a the Commission's provide for meaningful participation by "public witnesses," allowed to introduce evidence at a hearing by either oral or (see for Procedural Rules RP 6.121.7) who may be written statements and exhibits. I 13. The 2016 Order Denying Intervention noted that the Commission welcomed party's desire to participate and contribute to a -6- **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** proceeding: "it is the reason a for the designation of public witnesses." Id. review the public evidence, file its A public witness at p. 7. can "monitor the proceedings, written evidence and comments, own and be assured that the Commission will consider its filings." Id. DISCUSSION 14. asks Based upon the above law and the facts of this proceeding, EML respectfully the Commission to deny Bigger Pie's request for intervenor status for the following reasons. A. Bigger Pie Does Not have 15. Bigger Pie Pie articulates its mission does not a Substantial Interest in EML's IRP Docket have a substantial interest in this docket. Again, Bigger "research[ing] and shar[ing] educational information that fosters as greater economic freedom and individual responsibility." See Motion to Intervene at p. 1 and https://biggerpieforum.orglabout/. Bigger Pie pursues this mission through media reporting and "[B]eliev[ing] the cost of electricity is general advocacy. a vital component in the ability of many business owners to experience greater economic freedom by starting and/or growing their enterprises" (see Bigger Pie's Motion to Intervene, pp. substantial interest. This is the (assuming such options are same generalized interest 1) is common insufficient to establish a to EML and its customers economic and feasible), the Commission, the Staff, and the Mississippi Attorney General. 16. Commission. Bigger Pie does not Bigger Pie has not asserted in the proceedings. It is not a satisfy the "substantial interest" standard set forth by the any direct, substantial, legally protectable interest real party in interest because it does not have equitable claim to any property that could be impacted by this proceeding. - 7 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** a legal or its Purported Interests will not be Impeded Commission's Denial of Bigger Pie's Motion to Intervene Impaired by the B. Bigger Pie's Further, the disposition of the proceeding will not 17. or Ability to Protect as a or practical matter impair impede Bigger Pie's ability to protect any substantial interest. As discussed above, Bigger Pie does not have a specific, substantial interest in this proceeding. As to its general interests that further its mission statement, Bigger Pie had the full opportunity to advocate in the ruledid so in the Comments/testimony that it submitted to the Commission. Further, as noted in Paragraph 2, above, Section 102 of the IRP Rule making docket 18. create a and definitive plan for execution. Any substantial utility investment resulting from the IRP Rule (e.g. new generation) must be approved by the Commission in proceeding. Bigger Pie and other entities would have have a does not an opportunity to a assert separate CCN whether they substantial interest in the CCN proceedings. C. The Commission and Staff will Adequately Represent the General Interests of Bigger Pie 19. any interest Finally, Bigger Pie's intervention in this proceeding it may have is general interests, however, is unnecessary, because already adequately represented by other parties. Bigger Pie's are sufficiently protected by the Commission, the Staff, and the Mississippi Attorney General. The Commission is charged with the task of "promot[ing] adequate, reliable and economical service to all citizens and residents of the state" and promoting the provision of "just and reasonable rates and charges for public utility services without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices and consistent with long-term management and conservation of energy - 8 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** resources by avoiding wasteful, uneconomic and inefficient Staff the statutory duty to "represent the broad interests of the State of Mississippi by has uses of energy."2 In addition, the balancing the respective concerns of the residential, commercial or industrial ratepayers, and the state and its agencies and department, and the public utilities."3 Ann. § 77-2-9(3), the Staff has PUTSURHt tO Miss. Code list of fourteen duties and responsibilities a aimed protecting the public health and safety, promoting the general welfare, and ensuring just at and reasonable rates for Mississippi ratepayers. Given the nature of the instant proceeding, the Commission and the Staff adequately represent the interests of EML customers, organizations who advocate for renewable the general public." See assist sources in well as Mississippi, making Further, the Mississippi Attorney General "is intervention unnecessary and unwarranted. charged with the duty to energy as and advise the [Commission] [and]... protect the interest of Mississippi Attorney General's Motion to Intervene at p. 1, Docket No. 2019-UA-232 (Jan. 22, 2020). Bigger Pie claims that, 20. an as an intervenor, "it can offer valuable ideas" and "has interest in collaborating with parties appearing in this Docket..." to Intervene, p. 2. public witness, so Bigger Pie can intervener status is offer its ideas and See Bigger Pie's Motion collaborate with other entities as a unnecessary. as an Intervenor Would Result in Inefficiency and Risk of Increased Customer Costs in the EML IRP Process D. Bigger Pie's Presence 21. In addition, granting intervenor status to third parties like Bigger Pie in this docket would result in inefficiency and 2 3 is likely to cause delays in the approval Miss. Code Ann. § 77-3-2(1)(c)-(d). Miss. Code Ann. §77-2-1. - 9 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** of EML's IRP. In considering whether to grant motions to intervene, administrative agencies consider whether allowing intervention would substantially proceeding and deny intervention in such Allowing these types of the circumstances.* Parties like Bigger Pie have only 22. change the nature also of parties to intervene a generalized interest in the proceeding. propounding data requests, requesting and - reviewing confidential information would substantially change the nature of the proceeding - because it would shift focus away from EML actually finalizing its IRP. Moreover, granting parties like Bigger Pie intervenor status and would expose customers compromised6 23. - is likely to increase EML's to increased costs to finalize its IRP risk that confidential information would be further exposing customers to the risk of substantially increased costs. As the Commission proceeding will be more found in its 2016 Order Denying Intervention, efficient when the intervening parties have a a particular and significant interest because those types of parties will draw the Commission's attention to particular matters that might otherwise have gone unnoticed. Intervention, p. Bigger Pie's focus would 6. Mississippi's IRP. appropriate for a See be on See educating its stakeholders about Entergy Bigger Pie's Motion to Intervene, p. 2. public witness (see 2016 Order Denying While that may below) it would only contribute to inefficiency be were See, e.g., Code of Miss. Rules 60-015-001 (2014), Mississippi Fair Commission Rule 9 ("A petition to intervene in a proceeding will be denied if the inclusion of the Intervenor in the proceeding would cause unjustifiable delay or substantially change the nature of the proceeding"); Texas Administrative Code, Department of Agriculture Rule §1.10). Entergy Mississippi is particularly concerned about allowing a media organization to intervene and access confidential information, especially considering that execution of a Nondisclosure Agreement by an intervening party is specifically required by Rule 29. It seems more appropriate to allow media organizations to access publicly available information only to mitigate against the risk of inadvertent widespread disclosure of confidential information. 4 - 10 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** Bigger Pie allowed to engage in discovery, request and review confidential documents, and examine EML's witnesses. Public Witness Honors the Intention of the IRP Rule while Simultaneously Honoring the Intervention Rule Allowing Bigger E. Only Pie to Participate as a In developing the stakeholder process contained in the IRP Rule, the 24. Commission affirmed its desire for "meaningful participation options for provide input into the resource plan's development . . . . . . stakeholders to Nevertheless, the Commission f[ound] utility." that the ultimate responsibility for resource planning decisions must remain with the Final Order Amending Rule 29 to Establish Integrated Resource Planning and Annual Energy Delivery Reporting Requirements, p. access to be 15, Docket 2018-AD-64. This means that the details of EML's IRP, including confidential and sensitive information, should limited to those parties who truly have substantial interest. a substantial interest to intervene in the docket and contain Allowing entities without access to commercially information increases the risk that the confidential information could disclosed publicly a - harm that would be irreparable for customers. be a sensitive inadvertently Given this risk, a weighing of interests balances in favor of limiting participation to public interest status. 25. As and other parties most recent a public witness, Bigger Pie will have access to all public filings that EML in the IRP docket submit, including comments and EML's IRP. EML's voluntary IRP filing in 2018 Exhibit A to the Comments of Entergy (see Mississippi, Inc. in Docket 2018-AD-64, filed Aug. considerations, primary planning objectives, requirements, current fleet and projected resource needs, -11- **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** 1, 2018) included background, key adequacy and planning assumptions and assessments, reserve portfolio design and analytics, and the path forward. Providing a detailed public IRP honors the IRP Rule's goal of transparency, while protecting confidential information that should not disclosed to parties without determines that as participate, EML is a substantial interest in EML's IRP. a be If the Commission public witness Bigger Pie should have additional opportunity to willingto conduct a bifurcated technical conference under Rule 29.105.3, allowing public witnesses to participate in all portions that do not discuss confidential and sensitive information. EML believes that the appropriate status of Bigger Pie, and other parties who 26. do not have a substantial interest in this docket, should be limited to a public witness, not an intervenor. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Entergy Mississippi requests that the Commission: (a) deny Bigger Pie's Request for Intervenor Status; and (b) if the Commission capacity, order that Bigger Pie be if Bigger Pie desire to participate in this and agrees granted public witness status pursuant to R.P. 121.7, with rights to file comments in this proceeding but without rights to proceeding, that EML shall be under no Bigger Pie, that Bigger Pie shall have issue written discovery in this obligation to respond to written discovery from no rights to access confidential information, and Bigger Pie shall have no rights to examine witnesses. Entergy Mississippi further prays for such other, further, and general relief Commission deems necessary, useful, or appropriate. - 12 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** as the This thã 28* of January 2020. ENTERGY MISSISSIPPI, LLC ALIC S. HAL Tianna H. Raby (MSB No. 100256) Alicia S. Hall (MSB No. 103580) Alexander C. Martin, II (MSB.No. 103634) Entergy Services, LLC P.O. Box 1640 (M-ELEC-6C) Jackson,:Mississippi 39215-1640 (601) 969-2344 ATTORNEYS FOR ENTERGY MISSISSIPPI, LLC I - 13 - **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** RP 6.111 CERTIFICATE OF SERVICE I, ALICIA S. day I have caused to HALL, Attorney for Entergy Mississippi, LLC,ihereby certify that be on filed the original and twelve (12) copies ofthe foregoing with: Katherine Collier Executive- Secretary Mississippi Public Service Commission katherine.collier@psc.ms.gov and that day I have caused to be provided one copy of the foregoing to: on this Virden C. Jones Executive Director Mississippi Public Utilities Staff virden.jones@mpus.ms.gov Frank Farmer General Counsel Mississippi Public Service Commission frank.farmer@mpus.ms.gov and that, in the . . Tad Campbell General Counsel Mississippi Public Utilities Staff tad.cäinpbell@mpus.ms.göv Robert P. Wise, Esq. Sharpe & Wise PLLC Attorney for Bigger Pie Forum, LLC rwise@sliarpewise.com filing of the same, I have complied with Rule 6 of the Commission's Public Utilities Rules of Practice and Procedure. This, the 28th day of January 2020. ÂÚCIA $. HALI Box 1640 (M-ELEC-6C) Jackson, Mississippi 39215-1640 P.O. (601) 969-2344 **MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 ** / this