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Reply Evidence of Paul R. Carpenter of the Brattle Group, Inc

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Reply Evidence of Paul R. Carpenter of the Brattle Group, Inc TransCanada PipeLines Limited Reply Evidence of Paul R. Carpenter Application for Approval of Mainline of The Brattle Group, Inc. 2013 – 2030 Settlement RH-001-2014 Reply Evidence of Paul R. Carpenter of The Brattle Group, Inc. August 22, 2014 NATIONAL ENERGY BOARD IN THE MATTER OF the National Energy Board Act and the Regulations made thereunder; AND IN THE MATTER OF an Application by TransCanada PipeLines Limited, pursuant to Part I and IV of the National Energy Board Act for approval of a negotiated settlement of 2013- 2020 Mainline tolls and tariff terms; AND IN THE MATTER OF a decision of the National Energy Board dated March 2013, pursuant to Hearing Order RH-003- 2011, and National Energy Board Order TG-002-2013. [RH-001- 2014] TRANSCANADA PIPELINES LIMITED __________________________________________________________________ APPLICATION FOR APPROVAL OF TOLLING SETTLEMENT REPLY EVIDENCE OF PAUL R. CARPENTER THE BRATTLE GROUP, INC. ______________________________________________ August 22, 2014 To: The Secretary National Energy Board 517 10th Avenue S.W. Calgary, Alberta T2R 0A8 WRITTEN REPLY EVIDENCE OF PAUL R. CARPENTER TABLE OF CONTENTS I. Qualifications and Summary.............................................................................................1 II. “Economic Withholding” and Market Power ...................................................................8 III. Secondary Market Competition and Downstream Prices ...............................................16 IV. Dr. Cicchetti’s Regressions .............................................................................................29 V. Pricing Discretion and Upstream Netbacks ....................................................................42 VI. Pricing Discretion, Toll Stability and Transparency .......................................................46 VII. Pricing Discretion and Business Risk .............................................................................48 i WRITTEN REPLY EVIDENCE OF PAUL R. CARPENTER 1 I. QUALIFICATIONS AND SUMMARY 2 Q1. Please state your name, address and position. 3 A1. My name is Paul R. Carpenter. I am a Principal and Chairman of The Brattle Group, 4 an economic and management consulting firm with offices in Cambridge, 5 Massachusetts, Washington D.C., New York City, San Francisco, London, Rome and 6 Madrid. My office is located at 44 Brattle Street, Cambridge, Massachusetts 02138. 7 Q2. Will you briefly describe your educational background and professional 8 qualifications? 9 A2. Yes. I am an economist specializing in the fields of industrial organization, antitrust, 10 finance, and energy and regulatory economics. I received a Ph.D. in Applied 11 Economics and an M.S. in Management from the Massachusetts Institute of 12 Technology, and a B.A. in Economics from Stanford University. I have been 13 involved in research and consulting on the economics and regulation of the natural 14 gas, oil and electric utility industries in North America and abroad for thirty years. I 15 frequently have testified before federal, state and Canadian regulatory commissions, 16 in federal court and before the U.S. Congress, on issues of pricing, competition and 17 regulatory policy in these industries. Outside of North America, I have advised 18 governments and regulatory bodies on the structure of their natural gas markets and 19 the pricing of gas transmission services. These assignments have included testimony 20 before the U.K. Monopolies and Mergers Commission and the Australian 21 Competition Tribunal, and advice to the European Commission and the governments 22 of, and regulators in, Greece, Ireland, the Netherlands, New Zealand and Australia. 23 For at least 30 years I have been extensively involved in the evaluation of the 24 economics and regulation of the natural gas industry in North America. In Canada, I 25 have advised pipeline and distribution companies and have previously testified before 26 the National Energy Board on matters relating to pipeline competition and capacity 27 expansion, including the Alliance Pipeline Ltd. certification proceeding, and on the 1 WRITTEN REPLY EVIDENCE OF PAUL R. CARPENTER 1 subject of business risk in the context of cost of capital. I gave evidence on business 2 risk in the RH-003-2011 proceeding at the request of TransCanada. 3 Q3. Could you elaborate on your experience and qualifications in the areas of 4 competition policy and antitrust as applied to regulated utilities including 5 natural gas pipelines? 6 A3. Yes. From the earliest days in my career to the present I have been involved in 7 matters related to the application of competition policy and antitrust to natural gas 8 pipelines and regulated utilities. For example, I was the principal economic expert 9 witness in two of the seminal antitrust lawsuits brought against natural gas pipelines 10 in the early years of U.S. pipeline regulatory reform: State of Illinois v. Panhandle 11 Eastern Pipeline Co. (Fed. Ct. for C.D. Illinois), and City of Chanute, et al. v. 12 Williams Natural Gas (Fed. Ct. for Kansas). In the area of mergers and acquisitions, 13 I have been the economic expert witness in several proceedings where the merger of 14 regulated gas assets and electric utilities raised issues of vertical market power, 15 including the merger that created Sempra Energy and the proposed merger between 16 Exelon and Public Service Gas & Electric Co. I also have experience in the 17 evaluation of claims of market manipulation. For example, in 2008 I was the 18 economist retained by the enforcement staff of the Federal Energy Regulatory 19 Commission (“FERC”) to evaluate and testify as to its claims of market manipulation 20 in gas commodity and derivatives trading by an energy transportation and trading 21 company. Further details of my educational and professional background, as well as a 22 listing of my publications, are provided in my curriculum vitae, which is appended to 23 this testimony as Attachment A. 24 Q4. What assignment were you given in this proceeding? 25 A4. I have been asked by TransCanada PipeLines Limited (TransCanada) to review the 26 intervenors’ written evidence in this proceeding bearing on the issue of 27 TransCanada’s pricing discretion for short term firm and interruptible services (STFT 28 and IT), including the evidence of the Canadian Association of Petroleum Producers 29 (CAPP) and its witness Dr. Ren Orans, and the evidence of Centra Manitoba (Centra) 2 WRITTEN REPLY EVIDENCE OF PAUL R. CARPENTER 1 and its witness Dr. Charles Cicchetti. I have been asked to respond to the opinions 2 expressed in this evidence, that TransCanada has been using its pricing discretion in 3 ways which are detrimental to economic efficiency and price formation in the markets 4 served by the TransCanada Mainline. Based on these claims, the intervenor evidence 5 recommends that the Board limit the pricing discretion granted to TransCanada in the 6 Board’s RH-003-2011 Decision. 7 Q5. Dr. Carpenter, how would you characterize the intervenor written evidence on 8 pricing discretion to which you are responding? 9 A5. The intervenor evidence on pricing discretion is based on a series of assertions, each 10 of which deserves close scrutiny. These assertions include: 11 1. A claim that pricing discretion equates to the “economic withholding” of short 12 term services by TransCanada that is economically inefficient. In other 13 words, that TransCanada is exercising market power by virtue of its pricing 14 discretion. (CAPP/Orans) 15 2. Assertions that TransCanada’s use of its pricing discretion has affected 16 downstream commodity prices at key trading hubs (Centra/Cicchetti and 17 CAPP/Orans). 18 3. A claim that the reduction in netbacks to NIT observed during the first few 19 months after the implementation of the Board’s RH-003-2011 Decision Model 20 was due to TCPL’s pricing discretion and that such effects could happen again 21 in the future (Orans). 22 4. The position that pricing discretion should be limited because it creates 23 volatility and toll instability for producers and that it lacks transparency 24 (Orans). 25 5. The view that pricing discretion was permitted by the Board in RH-003-2011 26 solely to mitigate the business risk associated with the Decision Model, and 27 that Board approval of the terms of the Settlement here eliminates that 28 business risk (CAPP/Orans). 3 WRITTEN REPLY EVIDENCE OF PAUL R. CARPENTER 1 2 I conclude that these intervenor assertions are either false or unproven, and therefore 3 that their proposals that the Board limit TransCanada’s short term service pricing 4 discretion are unwarranted. 5 Q6. What are your principal conclusions regarding each of these premises? 6 A6. My conclusions are as follows: 7 1. I disagree with the opinions expressed by CAPP and Dr. Orans’ that 8 TransCanada’s use of its pricing discretion constitutes “economic withholding” 9 of capacity that is economically inefficient. 10 First, the concept of “economic withholding” that originated in the regulation of 11 wholesale electricity markets has no application in this case without a finding that 12 TransCanada has market power with respect to short term services (STFT and IT). I 13 demonstrate using the tools typically employed by economists in competition law 14 settings that TransCanada does not possess market power in the relevant product 15 market (short term transportation services including “bundled” sales of delivered gas) 16 and in the relevant geographic market (at least as large as the area served
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