UNITED STATES OF AMERICA
`BEFORE THE
`FEDERAL ENERGY REGULATORY COMMISSION
`
`Docket Nos. EL02-60-000, et al.
`
`Docket Nos. EL02-62-000, et al.
`
`(Consolidated)
`
`))))))))))
`
`Public Utilities Commission of the State of California
`v.
`Sellers of Long Term Contracts to the California
`Department of Water Resources
`_____________________________________
`
`California Electricity Oversight Board
`v.
`Sellers of Long Term Contracts to the California
`Department of Water Resources
`
`DYNEGY PARTIES’ ANSWER OPPOSING ECOTALITY
`MOTIONS FOR ADMINISTRATIVE NOTICE
`
`On May 29 and May 30, 2012, respectively, non-party ECOtality, Inc. (“ECOtality”),
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`filed two motions purporting to request that the Commission take “administrative notice” of
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`certain matters related to a California state court action (“State Court Action”) that ECOtality has
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`initiated to challenge the CPUC’s authority to enter into the Settlement Agreement and,
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`ultimately, to attempt to have the Settlement Agreement annulled. 1 As we explain below,
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`although the Dynegy Parties have no objection to the Commission taking notice of the fact of the
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`State Court Action, or the fact of a order issued in that proceeding, we strongly object to the
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`more significant relief that ECOtality actually is seeking here, which is for the Commission to
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`accept the state court petition and “consider its merits.” Second Admin Not. Mot’n at 2. We
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`also oppose ECOtality’s request that the Commission suspend consideration of the Settlement
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`pending resolution of the State Court Action.
`
`1
`See Motion of ECOtality, Inc. for Administrative Notice of State Court Action Regarding Settlement
`Agreement Between NRG, Inc. [sic] and the California Public Utilities Commission (May 29, 2012) (“First Admin.
`Not. Mot.”); Second Motion of ECOtality, Inc. for Administrative Notice of the May 29, 2012 Order of the
`California Court of Appeal Regarding Settlement Agreement Between NRG, Inc. [sic] and the California Public
`Utilities Commission (May 30, 2012) (“Second Admin. Not. Mot.,” together with the First Admin. Not. Mot.,
`“Administrative Notice Motions”). Unless otherwise defined herein, capitalized terms used here have the same
`meanings set forth in the Parties’ Joint Offer of Settlement and Joint Explanatory Statement.
`
`

`

`BACKGROUND
`
`On April 27, 2012, the Dynegy Parties and the CPUC filed a Joint Offer of Settlement to
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`resolve all claims in this proceeding related the Dynegy Long-Term Contract. On May 17, 2012,
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`ECOtality filed a motion to intervene out of time and comments opposing the Settlement. On
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`May 25, 2012, ECOtality initiated the State Court Action by filing a Verified Petition for Writ of
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`Mandate and Other Appropriate Relief (with exhibits, “Petition”) in the Court of Appeal for the
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`State of California, First Appellate Division (“State Court”).
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`Separately, the CPUC and the Dynegy Parties each filed with this Commission answers
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`opposing ECOtality’s motion for late intervention, and reply comments in support of the
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`Settlement. See Dynegy Parties’ Answer Opposing Late Intervention and Reply Comments in
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`Support of Settlement Agreement (May 29, 2012) (“Dynegy Parties’ Reply Comments”).
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`On May 29, 2012, ECOtality filed its First Administrative Notice Motion, requesting
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`“that the Commission take notice not only of the filing of the Appellate Petition, but of the
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`verified facts stated in the petition,” and that the Commission “consider the Appellate Petition,
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`along with its exhibits, as additional evidence supporting ECOtality’s May 17, 2012, comments
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`opposing the Settlement Agreement.” First Admin. Not. Mot. at 4 (emphasis added).
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`On May 30, 2012, ECOtality filed its Second Administrative Notice Motion, attaching a
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`copy of the State Court’s order of May 29, 2012, which denied ECOtality’s request for a stay and
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`set a briefing schedule (“State Court Order”). ECOtality asks the Commission to take notice of
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`the State Court Order, and argues that the Commission’s consideration of the Settlement
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`Agreement “must take into account not only the Appellate Petition, but the final determination of
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`the [State Court] on the merits of that Petition.” Second Admin. Not. Mot. at 2-3.
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`2
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`

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`ARGUMENT
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`As noted above, the Dynegy Parties have no objection to the Commission taking notice
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`of the fact that ECOtality has filed the State Court Action or that the State Court has denied the
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`request for an immediate stay and set a briefing schedule. But we strongly oppose the more
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`wide-reaching and unwarranted relief that ECOtality is asking for, which appears to be that the
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`Commission accept the Petition as evidence, and either resolve the issues ECOtality has raised
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`“on the merits” or suspend consideration of the Settlement Agreement until the State Court has
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`reached a final determination on ECOtality’s Petition.
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`First, the relief ECOtality requests—“administrative notice”—should be denied
`
`because the facts it asks the Commission to take notice of are not the type of facts for
`which such relief is permitted under the Commission’s Rules.
`Specifically,
`the
`Commission can “take official notice of any matter that may be judicially noticed by the
`courts of the United States, or of any matter about which the Commission, by reason of
`its function, is expert.” 18 C.F.R. § 385.508(d). Under the Federal Rules of Evidence, a
`court can take judicial notice of commonly acknowledged facts and facts capable of
`certain verification. Fed. R. Evid. 201(b).2 Because the facts asserted in the Petition—
`arguments about the CPUC’s alleged lack of authority to enter into the Settlement
`Agreement and assertions that the Agreement violates state law—are not commonly
`known, not capable of certain verification, and not within the Commission’s expertise,
`the Commission should deny the request to take administrative notice of them.
`
`Second, ECOtality’s Motions are, essentially, an attempt
`to obviate the
`
`requirements of Rule 214 for gaining late intervention and party status. Non-parties have
`no right to submit evidence in this proceeding. And yet, that is exactly what ECOtality is
`attempting to do here. As we stated in opposing ECOtality’s motion for late intervention,
`ECOtality has no interest in the underlying dispute here. ECOtality does not contest
`this.3 Moreover, ECOtality’s Administrative Notice Motions underscore the delay and
`prejudice that would be occasioned by granting it party status.
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`Third, it remains unclear whether ECOtality wants this Commission, the State
`
`Court, or both, to address the merits of its arguments regarding the CPUC’s alleged lack
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`2
`Federal Rule of Evidence 201(b) states: “The court may judicially notice a fact that is not subject to
`reasonable dispute because it: (a) is generally known within the trial court’s territorial jurisdiction; or (2) can be
`accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Id.
`
`3
`Motion to Intervene and Comments in Opposition by ECOtality, Inc. on the Settlement Agreement
`Between the California Public Utilities Commission and the Dynegy Parties at 8-9 (May 17, 2012) (“ECOtality has
`no direct interest in this proceeding.”).
`
`3
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`

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`of authority, under state law, to enter into the Settlement Agreement. The Dynegy Parties
`contend that state law issues of the type that ECOtality has raised are beyond this
`Commission’s jurisdiction to resolve. ECOtality has presented these issues to the State
`Court. The Dynegy Parties intend to respond to the State Court Petition according to the
`briefing schedule ordered by the Court.4 There is no basis for the Commission to address
`these extra-jurisdictional state law matters and the Commission should decline to do so.
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`Fourth, there is no reason for the Commission to suspend or delay its review of
`
`the reasonableness of the Settlement Agreement under the Federal Power Act. As we
`explained in the Dynegy Parties’ Reply Comments, the Agreement is structured so that
`the effective date is not triggered until after certain legal challenges, including the State
`Court Action, are resolved. 5 Thus,
`the Commission’s approval of the Settlement
`Agreement will not in any way interfere with the State Court Action. Moreover, as a
`policy matter, outside parties seeking only to advance their own non-jurisdictional
`business interests should not be permitted to interfere with the Commission’s review and
`approval of settlement agreements. Granting ECOtality’s request for a suspension of the
`Commission’s review will only serve to encourage like-minded inter-meddling in this
`and other Commission proceedings.
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`CONCLUSION
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`For all of the foregoing reasons,
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`the Dynegy Parties respectfully request
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`that
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`the
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`Commission deny all relief requested in ECOtality’s Administrative Notice Motions, except for
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`taking notice of the fact of the State Court Action and the fact of the State Court Order.
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`4
`The Dynegy Parties intend to respond on the merits to the issues presented in ECOtality’s Petition; we also
`reserve the right to challenge the Petition on the basis of procedural, standing or any other deficiencies, as we deem
`appropriate.
`
`5
`
`See Dynegy Parties’ Reply Comments at n.4 (discussing Settlement Agreement § 6(c)).
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`4
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`

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`Respectfully submitted,
`
`.
`
`John N. Estes III
`John N. Estes III
`Donna Francescani Byrne
`Robert W. Warnement
`Skadden, Arps, Slate, Meagher & Flom LLP
`1440 New York Avenue, NW
`Washington, D.C. 20005
`Tel: (202) 371-7950
`Fax: (202) 661-8213
`John.Estes@skadden.com
`Donna.Byrne@skadden.com
`Robert.Warnement@skadden.com
`Attorneys for Dynegy Power Marketing, LLC,
`Cabrillo Power I LLC, El Segundo Power,
`LLC, and Long Beach Generation LLC
`
`Jason A. Buchman
`Dynegy, Inc.
`601 Travis Street
`Suite 1400
`Houston, TX 77002
`Phone: (713) 767-8008
`jason.a.buchman@dynegy.com
`Attorney for Dynegy Power Marketing, LLC
`
`Christopher C. O’Hara
`Averill Harrington Conn
`NRG Energy, Inc.
`Houston Pavilions Office Tower
`1201 Fannin
`Houston, Texas 77002
`Tel: (713) 537-2245
`chris.ohara@nrgenergy.com
`averill.conn@nrgenergy.com
`Attorneys for Cabrillo Power I LLC, El
`Segundo Power, LLC, and Long Beach
`Generation LLC
`
`5
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that I have this day served an electronic copy of the foregoing document
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`upon each person designated on the official service lists established in Docket Nos. EL02-60-000,
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`and EL02-62-000. I have served a paper copy via first class mail upon each person designated
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`on the official service lists established in Docket Nos. EL02-60-000, and EL02-62-000 who is
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`not otherwise served an electronic copy.
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`Dated at Washington, D.C. this 5th day of June, 2012.
`
`/s/
`Jayne Sabolinski
`Legal Assistant
`
`________.
`
`