Thursday, September 13, 2007

Delmarva Power and Bluewater Wind: Deal or No Deal?

Do we have a deal? That depends on what you mean by the word deal.
Tomorrow is the deadline for the negotiations to bring wind power to Delaware. Bluewater Wind, through its attorney Tom McGonigle, has released a letter referring to a term sheet to be submitted to the Public Service Commission and other agencies overseeing the negotiations:
With this letter, Bluewater is pleased to notify the State Agencies that key commercial terms (the "Term Sheet") have been finalized for a proposed 450 MW wind energy facility to be constructed and operated off the coast of Delaware.
(I want to thank Maria Evans, who edits the WGMD blog, for sending me the link to the letter. She has also posted an informative interview with Bluewater's Jim Lanard.)
In his letter McGonigle writes that Delmarva will submit the term sheet to the PSC. But the News Journal reports that Delmarva Power isn't ready to actually agree to the terms outlined in the term sheet:
“These term sheets do not reflect an agreement or a contract,” said Bill Yingling, spokesman for Pepco Holdings Inc., Delmarva’s parent company. “It’s our job to fully evaluate the costs on behalf of our customers.”
As it did when it first balked at the prospect of negotiating an agreement to bring wind power to Delaware, Delmarva is conflating its interests with those of its customers. Delmarva could use its concern for its customers as the rationale for balking at the deal, as McGonigle writes:
Although Bluewater acknowledges and very much appreciates that Delmarva worked diligently during these negotiations, we fear Delmarva may oppose approval of this Term Sheet. To that end, Delmarva may argue that this project is too expensive for its ratepayers, citing its own evaluation to support this claim.
This rationale is part of Delmarva's appeal of the decision to require it to negotiate with Bluewater, an appeal that has been shelved but not withdrawn. Delmarva could have left a trap door in the deal, as McGonigle writes:
Bluewater is concerned with contractual provisions that allow Delmarva termination rights and delay damages resulting from such litigation caused delay.
In other words, Delmarva could scuttle the agreement by litigating the state's order underlying the negotiations, based on its own analysis of the deal. Bluewater is right that if Delmarva holds up the deal based on its own view of the public interest, the public should be allowed to review the analysis used to determine how Delmarva defines and measures what it calls the public interest.
As murky as things stand at this hour, there are more technical details to be digested in McGonigle's letter, and I haven't yet seen the term sheet. Please stay tuned for more on this breaking story.

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