UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION ) Wisconsin Energy Corporation ) ) Docket No. EC14-126-000 Integrys Energy Group, Inc. ) ) MOTION TO INTERVENE, PROTEST, AND REQUEST FOR HEARING OF MICHIGAN ATTORNEY GENERAL BILL SCHUETTE AND MICHIGAN GOVERNOR RICK SYNDER Pursuant to Rules 211 and 214 of the Federal Energy Regulatory Commission’s (“Commission”) Rules of Practice and Procedure, 18 CFR §§ 385.211 and 385.214 (2010), Michigan Governor Rick Snyder (“Governor”) and Michigan Attorney General Bill Schuette (“Attorney General”) (collectively “Michigan”) hereby submit this Motion to Intervene, Protest, and Request for Hearing in the above-captioned docket. In support of the relief requested herein, Michigan states the following: I. STATEMENT OF INTEREST The Governor and Attorney General appear in this proceeding for and on behalf of the people of the State of Michigan.1 The Joint Applicants’ proposed transaction at issue affects the state, its citizens, and businesses as electric 1 It should be noted that this intervention is limited to the Governor and the Attorney General. This intervention does not include the Michigan Public Service Commission which is an agency of the State of Michigan, created by 1939 Pub. Acts 3, Mich. Comp. Laws Ann. § 460.1 et seq. that has jurisdiction and authority to control and regulate rates, charges, and conditions of service for the retail sale of natural gas and electricity in the State, and which is a “state commission” as defined in 16 U.S.C. § 796(15) and 18 C.F.R. § 1.101(k) (2006). customers. The Governor and Attorney General, serving on behalf of Michigan ratepayers and the State of Michigan, hold a significant interest in the outcome of this proceeding, and these interests will not be adequately represented by any other party. Thus, the State of Michigan has an interest in this proceeding and its participation is necessary, in the public interest, and appropriate to the administration of the Federal Power Act. Accordingly, Michigan seeks to intervene for the purpose of protesting the Joint Applicants’ proposed transaction and to seek an evidentiary hearing. II. COMMUNICATIONS Michigan requests that all communications, correspondence, documents and other materials related to this proceeding should be addressed to the following persons: Michael E. Moody (P51985) John A. Janiszewski (P74400) Assistant Attorneys General Michigan Department of Attorney General 525 W. Ottawa St., 6th Flr, Williams Bldg P.O. Box 30755 Lansing, MI 48909 III. EXECUTIVE SUMMARY On August 15, 2014, Wisconsin Energy Corporation (“Wisconsin Energy”) and Integrys Energy Group, Inc. (“Integrys”) (collectively, the “Joint Applicants”) filed an application for authorization of disposition of jurisdictional assets and merger 2 under Sections 203(a)(1) and 203(a)(2) of the Federal Power Act.2 As explained in the application, Joint Applicants entered into an agreement pursuant to which Wisconsin Energy will purchase the outstanding shares of Integrys in a stock and cash transaction.3 The proposed transaction will create an electric and natural gas utility in the Midwest, serving more than four million customers across four states with most of the Joint Applicants’ generation located in the region referred to as the Wisconsin and Upper Michigan System (“WUMS”) region.4 The energy segment of Wisconsin Energy consists primarily of Wisconsin Electric Power Company (“WEPCO”), Wisconsin Gas LLC (“Wisconsin Gas”) operating together under the trade name “We Energies,” and a 26% ownership interest in ATC and ATC Management Inc.5 The energy segment of Integrys consists primarily of Wisconsin Public Service Corporation (“WPS’), several natural gas companies operating in Minnesota, Michigan, and Illinois, a power marketer, some electric generation units, and a 34% ownership interest in ATC and ATC management Inc.6 According to a 2001 report prepared by the Michigan Public Service Commission, attached as Appendix B, Michigan’s Upper Peninsula will feel the greatest impact of the proposed transaction because Wisconsin Energy and its 2 Joint Application for Authorization of Disposition of Jurisdictional Assets and Merger under Sections 203(a)(1) and (203(a)(2) of the Federal Power Act (“Merger Application”) Docket No. EC14-126; 16 U.S.C. § 824(a)(4) (2006) . 3 Merger Application at p. 1. 4 Id. at pp. 1, 18. 5 Merger Application at p. 3. 6 Merger Application at pp. 3-12. 3 subsidiaries already control most of the electric generation in this area and the proposed transaction will give Wisconsin Energy a 60% ownership interest in the only transmission system operator in the area, American Transmission Company (“ATC”).7 The level of concentration in both generation and transmission in the Upper Peninsula by one company as a result of this merger, is a major concern for Michigan. This concentration will provide the Joint Applicants market power in the region that could negatively affect competition and rates. After reviewing the Joint Applicants’ filing along with other publicly available documents, Michigan believes that the Merger Application is fatally flawed and therefore does not accurately reflect the serious and significant harm that the merger could impose on the people of the State of Michigan.8 Specifically, the Joint Applicants failed to analyze the relevant geographic market when determining its market power and thus the Merger Application (a) significantly understates both the horizontal and vertical market power that the merged entity will have; and (b) ignores the adverse impact such market power could have on rates and competition in the Michigan Upper Peninsula. Contrary to the Joint Applicant’s representations, the relevant 7 Staff Report on Electric Industry Market Power in Michigan’s Upper Peninsula, p 6 (“[Michigan Public Service Commission Staff’s] analysis of the electric utility industry in Michigan’s U.P. demonstrates that control of power generation service is highly concentrated, with WEC [Wisconsin Energy Company] subsidiaries controlling most electric generation and transmission in the U.P.”). Attachment B to Appendix A, also available at: http://www.dleg.state.mi.us/mpsc/electric/restruct/reports/upreport.pdf 8 See Appendix A, p. 1. 4 geographic market is not the entire Midcontinent Independent Systems Operator, Inc. (“MISO”) footprint but rather is WUMS which includes the Northern area that is essentially the Upper Peninsula. Accordingly, Michigan protests the instant application and requests that the Commission establish a full evidentiary hearing to develop a record that examines the proper geographic market that is essential in determining the transactions effect on competition, rates and regulation. Without such a record, the Commission does not have the evidence to determine whether the proposed transaction is consistent with the public interest as required under Order 592.9 At a minimum, the Commission must allow a full evidentiary hearing inclusive of discovery, testimony, and cross examination before an administrative law judge to determine the appropriate geographic market and determine the impact of Joint Applicant’s market power on Michigan ratepayers and competition in the Upper Peninsula. IV. PROTEST Section 203(a)(4) of the Federal Power Act provides that after notice and opportunity for hearing, “the Commission shall approve the proposed disposition . if it finds that the proposed transaction will be consistent with the public interest . .” To assess whether the proposed disposition of jurisdictional facilities is consistent 9 Inquiry Concerning the Commission’s Merger Policy Under the Federal Power Act: Policy Statement, Order No. 592, 77 FERC ¶ 61,263 (1996), order on reconsideration, Order No. 592-A, 79 FERC ¶ 61,231 (1997) (“Merger Policy Statement”). 5 with the public interest, the Commission evaluates the impacts of the proposed disposition on competition, rates, and regulation.10 A. The Proposed Merger will Significantly Increase Market Concentration Resulting in Both Horizontal and Vertical Effects on the Market. In examining competition, the Commission “assesses whether the merger would significantly increase concentration and result in a concentrated market, properly defined and measured.”11 This involves reviewing both horizontal effects resulting from any increases in concentration in energy and capacity markets and vertical effects resulting from increases in the ability or incentive to leverage control over electric transmission or natural gas transportation or other inputs to the generation of electricity (or vice-versa).12 Joint Applicants’ expert explains it as, “[u]nderstanding the competitive impact of a merger requires defining the relevant market (or markets) in which the merging firms participate.”13 “Typically markets are defined in two dimensions: geographic and product.”14 10 Merger Policy Statement, 77 FERC ¶ 61,263 at P.3. 11 Merger Policy Statement, 77 FERC ¶ 61,263, at P.3. 12 Revised Filing Requirements under Part 33 of the Commission’s Regulations, Order No. 642, FERC Stats & Regs ¶ 31,111 at 31,872 (2000), order on reh’g, Order No. 642-A, 94 FERC ¶ 61,289 (2001). 13 Merger Application, Exhibit No. J-1, p. 19. 14 Id. at Exhibit No. J-1, p. 19. 6 1. Joint Applicants have Improperly Defined the Geographic Market Rather than identifying and analyzing WUMS as the proper geographic market, the Joint Applicant’s contend that the Commission should utilize the entire MISO footprint as the “default” market used for conducting market power