Texas regulators are moving closer to allowing the Ray L. Hunt family to purchase and reshape Oncor, the state’s largest utility. But the Dallas oil family's high-stakes deal remains far from forged.
The three-member Texas Public Utility Commission on Thursday did not vote, as many had expected. But it told staff to draw up a proposal for the Hunts to transform Oncor into a real estate investment trust, a contentious part of a deal valued at $18 billion.
The commission is scheduled to review that proposal March 21, just days before its six-month deadline to vote up or down on a case with statewide implications.
That draft will offer several restrictions thought to minimize risks for Oncor and its roughly 3 million power line customers in North and West Texas. It also will call for investors to share with ratepayers a portion of the estimated $250 million each year in federal tax savings under the new corporate structure.
But it will leave a key question unanswered: How would the new Oncor share, if the deal goes through?
Over the objections of Chairman Donna Nelson, Commissioners Brandy Marty Marquez and Ken Anderson Jr. proposed to kick that issue to a separate proceeding, leaving parties in the case — including the Hunts and the consumer groups that have bitterly fought their efforts — unsure of the ultimate outcome or whether investors will stay interested.
“This is an incredibly difficult, complex situation, and we haven’t made it any less complex in our discussion,” Geoffrey Gay, general counsel for the Steering Committee of Cities Served by Oncor, a consumer group that opposes the deal, told the commissioners.
But in an interview, Gay said he was pleased that some sharing of those tax savings appeared likely.
Richard Noland, an attorney representing the purchasing group, said he would take the commission’s guidance back to the investors and that he wasn’t too surprised that the tax question remained in flux.
“We understand what you want, and we’ll try to sell it to our investors,” he told the commission.
Transforming the utility into a real estate investment trust would allow Hunt to save on federal taxes, and it would likely spur other major utilities to follow suit. Houston-based CenterPoint Energy has already said it’s exploring the idea, worrying consumer advocates.
The plan would divide Oncor into two companies. One would own the assets (power lines, trucks and transformers, for instance), while the other, much smaller “operating” company would rent the equipment. In Oncor’s case, the “asset” company would hold about 97 percent of the income — largely untaxed.
Federal law requires these trusts to pay out at least 90 percent of their income to shareholders thorough dividends.
The idea has drawn fierce pushback from a host of consumer groups, the staff at the Public Utility Commission and even former Gov. Rick Perry.
That financial structure has long served the real estate world. Shopping malls, for instance, commonly use it, as investors back a broad entity that rents space and other assets to individual stores. But such trusts have never been tried at a large utility, and critics call it risky.
The biggest complaint is that Hunt calls for the new Oncor to keep charging ratepayers what it normally collects in federal taxes — even though the company would no longer send that money to Washington.
On Thursday, Nelson reiterated her stance that tax savings from the trust structure weren’t different than what other utilities could reap. Her colleagues disagreed and called for the new Oncor to share some of those savings — an amount to be determined during a proceeding where the commissioners set rates.
"We're going to determine it in a rate case," Anderson said. "And beyond that, everything’s on the table."
The commission will also consider a rule regarding how to handle such trusts.
The Hunt deal is the linchpin of efforts by Oncor’s parent, Energy Future Holdings, to emerge from one of the largest bankruptcies in American history.
A Delaware bankruptcy court last December approved that company’s plan to shed most of its $42 billion debt, which would include selling Oncor to the Hunts — the biggest piece of the deal.
If the commissioners reject Hunt's plan or add stipulations investors won't agree to, Energy Future Holdings could be thrust back into bankruptcy negotiations that cost it an estimated $1 million a day in legal fees.
Disclosure: Oncor was a corporate sponsor of The Texas Tribune in 2012. A complete list of Tribune donors and sponsors can be viewed here.