
David Versus Goliath
The Snohomish County Public Utilities
District’s Fight with Enron
This is a story about a Washington
State public electric utility’s courageous fight against
energy-marketing giant Enron and how it brought to light Enron’s
naked attempt to profit from an artificial shortage of electricity
during the summers of 2000 and 2001.
Everett is a manufacturing community
set on a series of forested hills along the east side of Puget
Sound north of Seattle, Washington. The Snohomish Public Utility
District, or PUD as it is known locally, provides electricity
for 290,000 homes and businesses in the area. Two of the area’s
largest employers are Boeing and Kimberly Clark and both companies
set up manufacturing facilities in Everett because of the then
cheap and plentiful electricity.
The PUD operates much like a cooperative,
as is emphasized by signs displayed in the headquarters building
that note the PUD is owned and led by its member–customers.
The utility owns one small hydro
plant that provides about 8 percent of its electricity requirements.
Its remaining power needs are satisfied by the federally administered
Bonneville Power Administration, through purchases on the open
market, and by a small amount of power from renewable energy
sources including biogas and wind. In 1980, the PUD contracted
for its power needs for 20 years, but the contract expired at
a time when much of the West Coast of the United States was
following California’s lead in attempting to deregulate
the energy industry.
Energy Crisis Impacts
In 1996, California Governor
Pete Wilson signed legislation to open California’s electricity
market to competition and the law became effective on March
1, 1998. In May 2000, electricity prices on the California spot
market began to increase rapidly. By June, there were rolling
blackouts in California and by August, Governor Gray Davis was
calling for an investigation into wholesale electric-price manipulation.
Partly due to a drought, the Bonneville
Power Authority about that same time determined that it could
not provide the Washington-based utility with all of its electricity
needs from hydropower produced in its Columbia River system,
so the PUD had to turn elsewhere. In January 2001, the utility
entered into several contracts, including one with energy marketer
Enron that would run until the end of 2009—for 25 megawatts
of capacity at $109 per megawatt-hour (mwh). While high, the
rates were lower than the rates that would have been charged
had the PUD agreed to a shorter-duration contract.
There were two significant provisions
in the Enron contract: a termination charge if either Enron
or the PUD canceled the contract early and the requirement that
Enron remain “investment grade” during the life
of the contract. In other words, the PUD could cancel the contract
if Enron suffered serious erosion in its financial position.
That same January, as California
experienced rolling blackouts in the northern and central parts
of the state, PUD representatives met with Federal Energy Regulatory
Commission (FERC) officials to argue for federal wholesale-energy
rate caps to help protect businesses and residential consumers
from tremendous price increases. FERC denied the utility’s
request.
The PUD responded by raising consumer
rates by 35 percent in anticipation of higher wholesale prices.
However, it became clear that even this significant increase
would not come close to covering its costs of buying wholesale
electricity. The PUD then raised consumer rates a further 18
percent in October 2001.
By July 2001, wholesale electricity
prices dropped back to $30 to $40 per mwh, significantly less
than Enron’s $109-mwh contract rate.
That August, Enron Chairman Ken
Lay resigned and allegations of phony Enron profits were revealed.
By November, Enron’s credit rating fell below “investment
grade” and the PUD cancelled its contract with Enron.
Under the contract, Enron was required to respond to the cancellation
within 48 hours, but the PUD heard nothing. In fact, it did
not receive a response from Enron for nearly five months, according
to Wisconsin native and PUD General Counsel Michael Gianunzio.
In the meantime, Enron filed for bankruptcy that December.
Enron’s Suit and the Tapes
Finally, in April 2002, the PUD
received a letter from Enron seeking a $122 million termination
payment. The utility rejected Enron’s claim, projecting
the fee would cost every Snohomish County ratepayer $420. Enron
filed suit against the PUD that summer.
Enron and other energy marketers
routinely taped their traders’ conversations as a record
order to forestall future disputes with clients. Suspecting
there might be something on those tapes that could be used as
ammunition against Enron’s lawsuit, PUD attorneys were
able to obtain tapes via subpoena. The utility’s management
decided to spend $100,000 transcribing the conversations involving
Enron traders that had been recorded in Enron’s West Coast
trading desk in Portland, Oregon, during a key three-month span
in 2000 and 2001. The PUD set up a “listening room”
with 12 temporary staff transcribers sifting through 2,600 hours
of conversations. According to General Manager Ed Hansen, they
were taking a “real shot in the dark.” However,
this process would soon pay off and the transcripts caused a
nationwide media frenzy in early June of 2004.
U.S. Senator Maria Cantwell, a
member of the U.S. Senate Energy Committee and a Snohomish County
resident, commented, “The tapes very clearly show that
Enron and its traders were well aware of the havoc they were
wreaking on Western energy markets and that they took advantage
of the situation for financial gains.”
FERC— Ineffective Federal Regulator?
On June 17, 2004, the commission
directed staff to review recently submitted materials regarding
Enron’s behavior during the 2000–2001 energy crisis
as well as all Enron proceedings currently pending before FERC.
The commission directed staff to make recommendations as to
what additional procedural steps, if any, it should take with
respect to the pending “Enron” proceedings. This
review is pending.
This past July, FERC ruled that
it would look into requiring Enron to disgorge its illegal profits
from 1997 to 2003. The PUD hopes FERC will decide to order a
return of $140 million to the PUD, including the $122 million
termination penalty being sought by Enron. However, it is clear
PUD legal staff are concerned about FERC’s desire to impose
penalties on Enron. Assistant PUD General Counsel Eric Christensen
calls FERC “toothless” and said the agency has “proposed
a bunch of half measures and fixes that only make matters worse.”
He added, “FERC has tried hard not to do its job because
it is too tied to deregulation.” He concluded, “I
think it’s scandalous that federal regulators who were
supposed to be in charge of protecting consumers are still pursuing
the Enron agenda even though Enron has been dead for two years.”
A U.S. Court of Appeals recently
ruled that FERC has the authority to cancel energy contracts,
and a U.S. District Court judge in New York ruled that Enron
must respond to allegations that it, in bad faith, sought a
termination payment from Nevada Power Company. Both cases provide
hope to the PUD that it will eventually gain cancellation of
Enron’s $122 million termination penalty.
Dramatic Local Economic Impact
The Everett School District’s
power bill increased by $900,000 in one year. Together, all
Snohomish County school districts are spending about $1.75 million
more per year for energy than prior to the energy crisis, an
increase of more than 50 percent. Kimberly Clark is reporting
that its energy costs in Snohomish County are now the fourth
highest of its 31 plants. The facility employs nearly 900 workers
and the PUD is concerned the company may relocate product lines
to other plants or to even close the Everett facility. In yet
another example, a local start-up biotech firm substantially
delayed development of a drug for septic shock as a result of
the skyrocketing power prices.
Deregulation Lessons for Wisconsin
In 1998 and 1999, after significant
input by Wisconsin’s electric cooperatives and others,
the Wisconsin Legislature and state energy regulators decided
Wisconsin would not follow California’s lead and would,
instead, move much more slowly and deliberately down the energy-deregulation
path. Given the lessons of Enron in Washington State, this has
proven to be a much wiser course.—Bill Oemichen, with
information provided by Neil Neroutsos, public relations liaison
for the Snohomish County PUD
Selected Taped Conversations
The taped conversations
are graphic, and they support the allegations that Enron was
manipulating the West Coast energy market. Several of the more
interesting taped conversations are cited below and are edited
to remove words that may be objectionable to WECN readers.
About taking busy generators out of
service to increase prices:
David: There’s not much, ah, demand
for power at all and we’re running kind of fat. Um if
you took down the steamer, how long would it take to get back
up?
Person 2: Oh, it’s not something
you want to just be turning on and off every hour. Let’s
put it that way…and it depends on time, ah, how long it’s
off and what you have.
David: Yeah. Well, I don’t know,
my guess is these cuts are going to keep goin’ on for
another couple hours and ah, if – we shut down, could
you bring it back up in three – three or four hours, something
like that?
Person 2: Oh, yeah.
David: Well, why don’t you just
go ahead and shut her down, then, if that’s OK.
About power overcharges and market
manipulation in California:
Kevin: So the rumor’s true. They’re
f_____ takin’ all the money back from you guys? All those
money you guys stole from those poor grandmothers in California?
Bob: Yeah, grandma Millie, man. But she’s
the one who couldn’t figure out how to f___ vote on the
butterfly ballot.
Kevin: Yeah now she wants her f____ money
back for all the power you’ve charged right up—
jammed right up her a__ for f_____ 250 dollars a megawatt hour.
[laughter]
About potential shortages created
by a fire:
Person 1: The magical word of the day
is “Burn Baby Burn.”
Person 2: What’s happening?
Person 1: There’s a fire under the
core line (power line) it’s been derated from 45 to 2100.
Person 2: Really?
Person 1: Yup.
Together: Burn baby, burn.