BEFORE THE MISSISSIPPI PUBLI

ENTERGY MISSISSIPPI, LLC

IN RE:

EC-123-0082-00

SERVICE COMMISSI

VIC

sy

ENTERGY MISSISSIPPI, LLC'S
RP 29 NOTICE FILING

2019-UA-232

ENTERGY MISSISSIPPI, LLC'S RESPONSE IN OPPOSITION TO
ADVANCED ENERGY MANAGEMENT ALLIANCE'S MOTION TO INTERVENE
Entergy Mississippi, LLC ("Entergy Mississippi,"
this Response in
to Intervene.

"EML,"

Based

past Commission rulings and policy, AEMA

on

intervenor status given that such general interests will
by the Mississippi Public Service Commission
and

be more

the office of the Mississippi Attorney General.
to

intervention, as there

multiple additional entities that

as

this docket

AEMA.
as a

Commission

are

EML

is not

does

not have

a

sufficient to merit

than adequately represented

("Commission"), Public Utilities Staff

urges the Commission

grounds

the "Company") files

Opposition to Advanced Energy Management Alliance's ("AEMA") Motion

substantial interest in this proceeding and its generalized interest

("Staff"),

or

The Company respectfully

follow its past practice with respect to denying AEMA's

does not

seek

intervention based on similar

oppose the Commission allowing AEMA to participate in

public witness, which will provide them with ample opportunity to make the

aware

of any

concerns

that AEMA

has

regarding EML's proposed IRP.

BACKGROUND
1.

Rule

29 to

On November 22, 2019, the Commission adopted its Final Order AmeÃding
Establish Integrated Resource Planning and Annual Energy Delivery Reporting

Requirements in Docket 2018-AD-64.

AEMA

rulemaking docket.

**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

did not participate

as

a

party in the

'

 I

I

2.

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

not drive

does

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.
can be

The IRP Rule "establishes

tailored to the specific

needs

a

workable framework for

of Mississippi customers.

.

."

resource

planning that

Final Order Amending

Rule 29 to Establish Integrated Resource Planning and Annual Energy Delivery Reporting
Requirements, p. 7, Docket 2018-AD-64 (emphasis added). The IRP Rule

was

written to

place the interests of Mississippi customers at the forefront.
4.

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.

on

January 21, 2020.

AEMA

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

is a

provision of the

On December 23,

The Commission sent notice of

EML's filing to the Clarion Ledger, which published the notice
moved to intervene

to the IRP

on

January 7, 2020. AEMA

trade association whose members

 include national distributed energy
service.and technology providers.
have

an

create

companies.and advanced energy management

resource
See

AEMA Motion to:Intervene, p.

1.

AEMA claims to

interest in "collaborating with parties throughout Mississippi, including utilities, to

and

expand demand response and distributed -energy

According to its website, AEMA's mission.

to "advocate

is.

compensate. customers appropriately--to contribute energy
manage their energy usage--in
resilient, reliable,

and

AEMA's members

a manner

environmentally sustainable grid."

are

See

opportunities." Id.

for policies that empower and

or

which contributes to

resource

energy-related services

a more

or to

efficient, cost-effective,

https://aem-alliance.org/about/.

collection of. "providers and supporters of Distributed. Energy

a

Resources, including Demand Response and Advanced Energy Management..." Id.

Intervention should

5.

be

denied bécause AEMA

has

not claimed

nor

shown that

they have a substantial interest in the outcome of this docket.

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

6.

interëst in

a

of the proceeding

proceeding may

as

a

only by parties with

RP 6.121.1 ("any person may
has a

be

a

substantial:

permitted to intervene in

a

substantial interest relating to the property, transaction

at issue

and the movant

practical matter impair

or

is so

impede

situated that the disposition of the
his

or

her ability to protect that

interest." (emphasis added)
7.
states:

RP 6.121

is

similar to Mississippi Rule of Civil Procedure 24(a)(2), which

"[U]pon timely application, anyone shall

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3

be

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

permitted to intervene in

an

action

.

.

.

 when the applicant claims
subject of the action and

impair

matter

impede

or

an

interest relating to the property

situated that the disposition of the action may

he is so
his

transaction which

or

the

is

practical

as a

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. P. 24(a)(2), however, the

8.

Commission
a

affirmed that "[u]nlike civil courts, intervention [at the Commission]

has

of right but

matter

is

only granted

discretion."

the Commission's

at

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 Iritervention confirms the
long-standing principle that "[gjenerally, the grant

or

denial of

a

petition to intervene

is

within the sound discretion of the administrative agency involved."I
The Commission

9.
as

it

is

has

looked to the Mississippi Supreme Court for guidance,

allowed to do, regarding the standard for intervention. "In order to intervene,

movant must assert

a

A movant found to

be

An "interest"
claim to

or

is

'direct, substantial,

legally protectable interest' in the proceedings...

'a real party in interest' generally establishes sufficient interest.'

defined

as

"[a] legal share in something; all

right in property.'"

See

a

or

part of

a

legal

or

.

.

.

equitable

2016 Order Denying Intervention, pp. 3-4 (citing

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).

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Dep't

 Madison HMA, Inc.

v.

St.

Dominic-Jackson Mem'l Hosp.,

(citing Black's Law Dictionary 828 (86
The Commission

10.

3d 1209, 1216 (Miss. 2010)

35 So.

2004) (emphasis added)).

ed.

clarified that it will balance the factors involved in

also has

the standard for intervention: timeliness, substantial interest, impairment of interest,
adequacy of representation.

See

2016 Order Denying Intervention, p.

4.

and

"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

does not

automatically allow any interested party to

intervenor; it requires that "interested parties"

RP 29.105. RP 6.121 then categorizes parties

See

public witnesses. Rule 29.101.8 defines

as

move

to intervene under RP

intervenors, other parties,

or

"stakeholder" as "[a]ny interested party eligible to

a

appear and/or intervene in Commission

proceedings pursuant to Rule 6.121 of the

[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,
11.

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

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

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 In the 2016 Order Denying Intervention, the Commission exercised

12.

discretion and denied the interventions of several parties that it found to have
but not substantial, interest in the proceeding.

"Requiring the existence of

interest promotes, among other things, efficiency

particular and significant interest will

be

particularized

matter

consideration
costs on the

or

that might

thoroughness because

and

motivated and

to protect that vested interest, drawing

a

can be

the Commission's

have gone unnoticed

evidentiary support. Interventions are

a

its

generalized,
a

substantial

party with

a

expected to present evidence
and

Staff's attention to

not

been given sufficient

or

a

privilege that necessarily imposes

a

utility, and of course, ratepayers ultimately bear the

cost

of

a

utility's efforts

to

respond to data requests, engage in regulatory proceedings and defend appeals, among other
things.

The Rules

are

Denying Intervention, p.

crafted to

fairly judge

6.

Public Witness Option Provides
Intervention in a Proceeding

D. The

13.

of the intervention." 2016 Order

the merits

When intervention

inappropriate,

is

Meaningful Alternative

a

the Commission's

provide for meaningful participation by "public witnesses,"
allowed to introduce evidence at
14.

a

hearing by either oral

or

(see

for

Procedural Rules

RP 6.121.7) who may

be

written statements and exhibits.

The 2016 Order Denying Intervention noted that the Commission welcomed

party's desire to participate and contribute to
designation of public witnesses." Id.
review the public evidence, file its
the Commission will consider its

proceeding: "it

A public witness

at p. 7.

own

a

can

is

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reason

for the

"monitor the proceedings,

written evidence and comments,

filings." Id.

the

a

and be

assured that

 l

I

DISCUSSION
15.

Based upon the above law and the facts of this proceeding, EML respectfully

the Commission to deny AEMA's request for intervenor status for the

asks

following

reasons.

A. AEMA Does Not have a Substantial Interest in EML's IRP Docket
16.

AEMA

does not

have

a

substantial interest in this docket. Again, AEMA

trade association whose members include national distributed energy
advanced energy management service and technology providers.
Intervene, p.

1.

AEMA claims to have

an

resource
See

is a

companies and

AEMA Motion to

interest in "collaborating with parties throughout

Mississippi, including utilities, to create and expand demand response and distributed energy
resource

opportunities." Id. This

customers (assuming such options
and the

the

is

generalized interest

same

economic

are

and

common

to

EML and its

feasible), the Commission, the Staff,

Mississippi Attorney General.
17.

Again, the IRP Rule

customers. Mississippians

are

was

created to protect the interests of Mississippi

the parties most

likely

to have

various IRP dockets. Further, Entergy Mississippi's customers

a

are

substantial interest in the
the parties most

likely to

have a substantial interest in this docket.
18.

An out-of-state special interest group, like AEMA, which

is not a customer

of

EML, cannot satisfy the "substantial interest" standard set forth by the Commission. AEMA
has not asserted

not

a

any direct, substantial, legally protectable interest in the proceedings. It

real party in interest because it

does not

have

a

that could be impacted by this proceeding.

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

legal

or

is

equitable claim to any property

i

 Ability to Protect its Purported Interests will not be Impeded
Impaired by the Commission's Denial of AEMA's Motion to Intervene

B. AEMA's

Further, the disposition of the proceeding will not

19.
or

as a

or

practical matter impair

impede AEMA's ability to protect any substantial interest. As discussed above, AEMA

does

not have

a

As to its general interests

specific, substantial interest in this proceeding.

regarding demand response and distributed energy

resource

opportunities, AEMA had the

full opportunity to advocate in the rule-making docket, but chose to not do so.
I

20.
create

a

Further,

as

noted in Paragraph 2, above, Section 102 of the IRP Rule

does not

definitive plan for execution. Any substantial utility investment resulting from the

IRP Rule (e.g.

new

the Commission in

generation, including distributed energy resources) must
separate CCN proceeding.

a

AEMA

be

approved by

and other entities would have

an

opportunity to assert whether they have a substantial interest in the CCN proceedings.
C. The Commission and Staff will Adequately Represent the General Interests

of AEMA
Finally, AEMA's intervention in this proceeding

21.

interest it may have

is

is

unnecessary, because any

already adequately represented by other parties. AEMA claims that

"[nlo other party to this proceeding
AEMA's Motion to Intervene, p.

is

1.

suited to adequately represent AEMA's interests."

Its general interests, however,

are

See

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

advantages,

or

unfair

or

or

destructive competitive practices and consistent with long-term

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

 management and conservation of energy

inefficient

uses

by avoiding wasteful, uneconomic and

resources

of energy."2 In addition, the Staff

has

the statutory duty to "represent the

broad interests of the State of Mississippi by balancing the respective
residential,

commercial

or

of the

industrial ratepayers, and the state and its agencies and

department, and the public utilities."3

ŸUTSuant to

list of fourteen duties and responsibilities aimed

a

concerns

Miss. Code Ann.
at

§

77-2-9(3), the Staff has

protecting the public health and safety,

promoting the general welfare, and ensuring just and reasonable rates for Mississippi
ratepayers. Given the nature of the instant proceeding, the Commission
adequately represent the interests of EML customers,

as

well

for expanded demand response and distributed energy

rouse

making intervention unnecessary and unwarranted.
General "is charged with the duty to
interest of the general public."
1,

See

as

and the Staff

organizations who advocate
opportunities in Mississippi,

Further, the Mississippi Attorney

advise the [Commission] [and]... protect the

assist and

Mississippi Attorney General's Motion to Intervene at p.

Docket No. 2019-UA-232 (Jan. 22, 2020).
D. AEMA's Presence

as an Intervenor Would Result in Inefficiency and Risk of
Increased Customer Costs in the EML IRP Process

22.

In addition, granting intervenor status to third parties like AEMA in this

docket would result in inefficiency and
IRP.

2
3

is

likely

to cause delays

in the approval of EML's

In considering whether to grant motions to intervene, administrative agencies

Miss. Code Ann. § 77-3-2(1)(c)-(d).
Miss. Code Ann. §77-2-1.

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

also

 consider whether allowing intervention would substantially

change the nature

of the

proceeding and deny intervention in such circumstances.*
Parties like AEMA have

23.

Allowing

these types

only

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 AEMA intervenor status

would expose customers
compromised
24.

to

is

likely to increase EML's

costs to

finalize its IRP and

increased 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.

6.

AEMA's focus would be

response and distributed energy
1.

While that may

inefficiency

were

be

resource

appropriate for

a

on

See

2016 Order Denying

generally creating and expanding demand

opportunities.

public witness

See
(see

AEMA's Motion to Intervene, p.

below) it would only contribute to

AEMA allowed to engage in discovery, request and review confidential

documents, and examine EML's witnesses.
E.

Allowing AEMA

to Participate Only as a Public Witness Honors the
Intention of the IRP Rule while Simultaneously Honoring the Intervention
Rule

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).

4

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

 25.

In developing the stakeholder process contained in the IRP Rule, the

Commission affirmed its desire for "meaningful participation options for

provide input into the resource plan's development
that the ultimate responsibility for

.

.

.

.

.

.

stakeholders to

Nevertheless, the Commission f[ound]

planning decisions must remain with the utility."

resource

Final Order Amending Rule 29 to Establish Integrated Resource Planning and Annual
Energy Delivery Reporting Requirements, p.
access
be

Docket 2018-AD-64.

15,

This

means

that

to 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

access

Allowing entities without

disclosed

publicly

a

-

harm that would

be

sensitive

to commercially

information increases the risk that the confidential information could
irreparable for customers.

be

a

inadvertently

Given this risk,

a

weighing of interests balances in favor of limiting participation to public interest status.
26.
and

As

a

public witness, AEMA will have

access

to

other parties in the IRP docket submit, including comments

most recent

voluntary IRP filing in 2018

Mississippi, Inc. in Docket 2018-AD-64, filed Aug.

requirements, current

fleet and projected

and

EML's IRP. EML's

Exhibit A to the Comments of Entergy

(see

considerations, primary planning objectives,

all public filings that EML

1,

adequacy and planning

resource

needs,

2018) included background, key

assumptions and

design and analytics, and the path forward. Providing

a

assessments,

reserve

portfolio

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 a

a

substantial interest in EML's

IRP.

be

If the Commission

public witness AEMA should have additional opportunity to participate,

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

 EML

is

willing to

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 AEMA, and other parties who do

27.
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 AEMA's Request for Intervenor Status; and

(b)

if the Commission

order that AEMA

be

agrees

and

if AEMA desire to participate in this capacity,

granted public witness status pursuant to R.P. 121.7, with rights to file

comments in this proceeding but without rights to
that EML shall
AEMA

be

shall have

under
no

no

issue

written discovery in this proceeding,

obligation to respond to written discovery from AEMA, that

rights to

confidential information, and AEMA shall have

access

no

rights to examine witnesses.
Entergy Mississippi further prays for such other, further, and general relief
Commission deems necessary, useful,

or

appropriate.

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**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

as

the

 This the

28th

of January 2020.
ENTERGY MISSISSIPPI, LLC

ALIC

S.

HAL

Tianna H. Raby (MSB No..100256)
Alicia S. Hall (lVISB 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

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**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, hereby certify that
be

on

filed the original and twelve (12) copies of the foregoing with:

Kätherine Collier
Executive Secretary
Mississippi Public Särvice Commissiön

katherine.collier@psc.ms.gov
and

that

on

this day I have caused to

be

provided one copy of the idregoing to:

Virden C. Jonès
Executive Director
Mississippi Public Utilities Staff

Tad Campbell
General C'ounsel:

virden.jones@

tad.catupbell@mpus.ins.gov

Mississippi Public Utilities Staff

pus.ms.gov

Frank Farmer
General Counsel
Mississippi Public Service Commission
frank.farmer@mpus.ms.gov

and

that, in the filing of the

same,

Katherine Hamilton
Executive Director
Advanced Energy Management Alliance
katherine@aem-alliance.org

I have complied with Rule

6

of the Commission's Public

Utilities Rules of Practice and Ikocedure.
This, the 28th day of January, 2020.

ALIC
P.O. Box 1640

(M-ELEC-6C)
Jackson, Mississippi 39215-1640
(601) 969-2344

**MSPSC Electronic Copy ** 2019-UA-232 Filed on 01/28/2020 **

S.

HALL/

this