20200227Dkt 2 Mediation Questionnaire.pdf

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 7. Mediation Questionnaire
9th Cir. Case Number(s)
Case Name
Counsel submitting
this form
Represented party/
parties
Briefly describe the dispute that gave rise to this lawsuit.
Feedback or questions about this form? Email us at [e-mail]
Form 7 1 Rev. 12/01/2018
Instructions for this form: http://www.ca9.uscourts.gov/forms/form07instructions.pdf
20-35146
Franklin Energy Storage One et al. v. Kjellander et al.
Edward J. Jewell
Paul Kjellander, Kristine Raper, and Eric Anderson, in
their official capacity as Commissioners of the IPUC
The Public Utility Regulatory Policies Act of 1978 vests state regulatory
agencies with broad authority to govern the contractual relationship between
qualifying facilities ("QF" or "QFs") and utilities. Franklin 1-4 self-certified
to the Federal Energy Regulatory Commission ("FERC") that its projects are
energy storage QFs. The Idaho Public Utilities Commission ("IPUC") looked
at both the generation source and the generation output profiles of the QFs and
determined that the characteristics of the QFs closely aligned with the
characteristics of solar QFs and therefore gave Franklin 1-4 the same rights as
solar QFs of the same size, despite Franklin 1-4's self-certifications to FERC
that its QFs were energy storage facilities. The IPUC determined Franklin
Energy Storage 1-4 were eligible for two-year contracts and Integrated
Resource Plan method avoided-cost rates. Franklin argued it was entitled to
twenty-year contracts and Surrogate Avoided Resource method avoided-cost
rates based on its status as an "other" QF under prior IPUC orders. The IPUC
acknowledged that a project's QF status is a matter of federal, not state
jurisdiction. Although FERC determines whether or not a facility is a QF,
Congress left it to the States to determine the contractual relationship between
QFs and utilities, including avoided-cost rates and contract terms. Franklin
1-4 sued the IPUC in federal district court on its claim the IPUC invaded
FERC's jurisdiction to make QF status determinations.
Case: 20-35146, 02/27/2020, ID: 11611620, DktEntry: 2, Page 1 of 2
Briefly describe the result below and the main issues on appeal.
Describe any proceedings remaining below or any related proceedings in other
tribunals.
Form 7 2 Rev. 12/01/2018
Signature Date
(use “s/[typed name]” to sign electronically-filed documents)
Feedback or questions about this form? Email us at [e-mail]
The U.S. District Court of Idaho erred in determining it had subject matter
jurisdiction to hear the case based on its determination that Franklin brought
an “implementation” challenge under 16 U.S.C. § 824a-3(h)(2) as opposed to
an “as-applied” challenge under 16 U.S.C. § 824a-3(g). The appellants intend
to appeal this determination. The district court also rejected IPUC arguments
that plaintiffs’ claims were untimely and an improper collateral attack on
IPUC orders. The appellants do not intend to appeal these latter two
determinations.

The district court erred in determining the IPUC invaded FERC’s jurisdiction
by making a QF status determination. On appeal, the IPUC intends to argue
that FERC determines whether a facility is a QF, a simple yes or no
determination. Relatedly, Congress left it to the states to regulate the
relationship between the QF and the utility regarding avoided-cost rates and
contract terms. The state is vested with the authority to determine contract
terms such as pricing and contract length based on the QF’s actual
characteristics, regardless of how the QF checked the boxes on its Form 556,
which is accepted upon filing without further review.
Appellants are unaware of any proceedings remaining below. Following the
district court’s decision, Idaho Power petitioned the IPUC to establish
avoided-cost rates applicable to PURPA energy storage QFs.
s/ Edward J. Jewell 2/27/2020
Case: 20-35146, 02/27/2020, ID: 11611620, DktEntry: 2, Page 2 of 2