20180604Complaint.pdf

Case 1-:l-B-cv-00236 REtl Document 1. l-ilerl 05/30/l-8 Page 1fl4ffifublic Utilities CommlssiOn
Office of the SeclEtaryRECEIVED
JUN 0 t 20lE
Peter J. Richardson
515 N, 27h .Strcet
Boise, Idaho 83702
Idaho State Bar No. 3 195
Telephone [phone] I
Facsimi le : (208) 938-7 9O4
pglqrcrricltarllsort{rdtutt..cottt.
Attorney for Plaintiffs
Robert C. Huntley
R. HIJNTI"EY LAW, PLL,C
815 West Washington Street
P.O. Box 2188
Boise, tdaho 83701
Idaho State Bar No. 894
Telephone (208) 388- I 230
Facsimile: [phone]
rh u nl lrry(dlr u r rtleyl aw.conr
Boiee,ldaho
Attonrey tbr Plainti ffs
UNITED STATES DISTRICT COTJRT
I.'OR THE DISTRIC'T OF IDAHO
FRANKI,IN ENERGY STORACE ONE, LLC,
FRANKI,IN EN[.]RGY STORACE TWO, LI.C
TRANKLIN ENERCY STORAGE ]"HREE,
LLC, FRANKL,IN ENERGY STORAGE
T.'OUR, LLC]
Plaintiffs,
vs.
IDAHO PUBLIC UTILITIES COMMISSION,
Defendant.
Case No.: _ _
COMPLAIN'I' h-OR VIOLATION OF THE
FEDERAI, POWER ACT, THE PUBLIC
UTILITIES REGULATORY POLICIES ACT
OF I978, AND FEDERAL ENERGY
RECULATORY COMMISSION
REGI]LATIONS
Plaintiflb as their claint allege:
I.
JURISDICTION AND VENUE
L Section 210(hX2XB) of PURPA, 16 U.S.C, $ 824a-3(hX2XB), permits any
Qualifying Facility ("QF")r to petition the Federal Energy Regulatory Commission ("FERC") to
bring an enforccment action under section 210(hX2XA), l6 U.S.C. $ 82aa-3(h)(2XB).
I Plaintiffs are each a QF, see infra at n VIL
Complaint for declaratory judgment and order implernenting the same.
t.
Case L:L8.cv-0021]6-REti Document l. F.rled 05/30/1.8 Page 2 of 15
2. When FERCI does not bring an enftrrcemcnt action within 60 days of the filing of
such a petition, the petitioner may, under section 210(h)(2)(B) of PURPA, l6 U.S.C. $ 824A-
3(hX2XB), bring its own cnforccmcnt action dircctly agninst a State regulatory authority in the
appropriate Urrited States district coun.
l. On December 14, 2018. Plaintiffs2 petitioned FERC to bring an enforccnrcnt actiorr
against the Dcfendant, the tdaho Public t.,tilities Commission ("ldaho Commission"), under
section 210(h)(2XA), l6 U.S.C. $ 82aa-3(hx2XA). 'l'he petition was docketed as FERC Docket
No. ELl3-50-000. On Febnrary 15, 2018, FERC' issued a "Notice of Intent Not to Act" in which
it declined to initiate an enforccment action pursuant to section 210(hX2XA) of PURPA. FERC
stated; "Our dccision not to initiate an enforcement action means that Petitioners IFranklin Energy
Storage] may themselves brirrg an enfbrcement action against the ldaho Commission in the
appropriate court." Citing to l6 U.S.C. $ 824a-3(h)(2xB).
4. I'his Court has jurisdiction over this action pursuant to PURPA scction
210(hX2XA), l6 U.S.C. $ 824a-3(hX2XA), which authorizes Plaintiffto bring an enforcement
action irr a United States district coufl against a state regulatory authority to enjoin violations of
and ensure compliance with PURPA and FERC's PURPA regulatiorrs.
5. Venuc irr this Court is ploper because the ldaho Commission is located in this
district and is the state rcgulatory autlrority responsible for irnplcnrentirrg PURPA is in this district.
The ldaho Ciomnrission's acts and practices thal form the basis for the violations allcged in this
complaint occurred in this district.
2 F'ranklir, Energy Storage One, LLC, F-ranklin Energy Storage Two, LLC,
Franklin Energy Storage Three, LLC arrd Franklin Energy Storage Four, [,LC (Hcrein
collectively "Franklin" or the "Franklin Energy Storage").
Complaint for declaratory judgrncnt and order implementing the same
2.
Case l- Lft-cv 00236-llEtl llor;urnent t Filed 05/30/1-tl Page 3 of 15
II.
PRELI MINARV STAT'EMEN'I'
6. This is an action secking injunctivc and other appropriate relief against the ldaho
Commission for its usurping the cxclusive authority of the Federal Energy Regulatory Commission
("FERC") to classify Qualifying Facilities C'QF) under the Public Utilities Regulatory Policies
Act of 1978 (PURPA).
7. PIJRPA grants to state regulatory commissions, such as the ldaho Commission, the
authority to set terms, conditions and even the rates tlut regulated investor owned utilities nrusl
pay QFs for their electrical output. PURPA also vests exclusive authority in FERC to determine
whether an entity is, or is not, a QF, and as such that it is therefore entitled to the benefits of such
state determination as to the tenns and conditions of contracts and thc rates that investor owned
utilities must pay QFs for thcir clectrical output.
8. The ldaho Commission sets different terms and conditions for two broad classes of
QFs. QFs, called "other QI.s" by thc ldaho Commission, are cntitled to contract tcrms of up to
twenty years and are entitled to published notmegotiable mtes, The other class of QFs classified
by the ldaho Comnrission are solar and wind QFs. According to the lclaho Commission (as
rclcvant herein) solar and wind QFs are only entitled to two-year contracts.
9. Plaintiffs propose to scll the output from thcir FERC self-certified QFs at the rates
and contract tenns available for "other" projects as classified by the ldaho Commission. T'he
Plaintiff s projects arc energy storage systcrns (batteries that arc encrgizcd with solar panels) that
are, according to FERC, distirrct QFs apaft fronr the source of energy used to charge the batteries.
Complaint for declaratory judgment and order implementing the same.
3.
Llase 1" lfl-cv-002i16-RE.B Document 1 Filed 05/30/l-U Page 4 of 15
10. In response to the Plaintiff s proposal, the ldaho Power Company ("ldaho Power")
petitioned thc ldaho Commission for a declaratory judgrnent ruling that the Plaintiffs QF projects
are not "other" QFs entitled to twenty-year contracts and more favorablc rates but arc instead
classified with solar and wind QF's that are only entitled to a two-year contact at nruch less
favorable rates.
I l. A two-year contract tenn is uneconomic for the constructiorr of energy storagc
projects such as the Franklin Energy Storage facilitics.
I l. The ldaho Commission granted ldaho Power's petition for a declaratory order by
concluding that the Franklin QF projects fall within that Commission's solar/wind QF
classification.
12. The ldaho Commission's ruling is based on its finding that that energy storage
systems are not distinct QFs bul, instead are defined by the nature of the source of their energy
input. This ruling contravenes an express FERC ruling on the nature of energy storage QFs, The
Idaho Commission ruling deprives the Franklin Energy Storage projects of their right to the Idaho
Commission's moro favorable contract terms and ratcs available to all "other" QFs and instead
restricts thern to the less favorable contract tetms and rates that are available, under the Idaho
Commission's implementation of PURPA, to just solar and wind QFs.
13. The resulting two-year contract. versus a twerrty-year contract, greatly diminishes,
or virtually destroys the financial / economic viability of the projects.
TII.
'I'HE PAR'I'IES
A. Parties Plaintiff:
Complaint for dcclaratory judgnrcnt and order implenrenting the same
4.
(-a:ie L LB.t;v-00236 REB Document L Filed 05/30/LU F)age 5 of 1"5
14. Plaintitf, Franklin Energy Storage One, LLC, is an Idaho lirnited liability company
which has sought to develop an cnergy storage srnall powcr production facility as a FERC self-
ceftified QF in ldaho. Plaintiffs energy storage facility is a "small power production facility"
within thc meaning of Section 210( I ) of PURPA. See Sectiotr 3( I 7) of thc Federal Power Act, l9
U.S.C. $ 796(17). Plaintiffs oncrgy storage facility has been self-certitied as a QF'in FERC
Docket No. QF I 7-58 I (00 I ).
15. Plaintiff, Franklin Energy Storage Two, LLC, is an ldaho limited liability company
which has sought to develop an energy slorage small power production facility as a FERC self-
certified QF in ldaho. Plaintiffs energy storage facility is a "small power production facility"
within the meaning of Section 2 t 0( l ) of PURPA, S'ee Section 3( 1 7) of the Federal Power Act, l 9
U.S.C. $ 796(17). Plaintilfs energy storagc facility has been self-cenified as a QF in FF.RC
Dockct No. QFI 7-582(001 ).
16, Plaintiff, Franklin Energy Storage Three, LLC, is an ldaho limited liability
company which lus souglrt to develop an energy storage small porver production thcility as a
FERC self-certified QF in ldaho. Plaintiff s energy storage facility is a "small power production
facility" within the nreaning of Section 210( l) of PURPA. See Section 3(17) of the Federal Power
Act, l9 [r.S.C. $ 796(17). Plaintiffs cnergy storagc facility has been self-cerlified as a QF in
FERCI Dockct No. QFl T-583(001).
l7 . Plaintiff, Franklin Energy Storage Four, LLC, i.s an ldaho linrited liability company
which has sougltt to develop sn energy storage small power production facility as a FERC self-
certifiecl QF in ldaho. PlaintifI,s cnergy storage facility is a "small powcr production facility"
within the meaning of Section 210( I ) of PURPA. .lea Section 3( l7) of the Federal Power Act, l9
I
Cornplaint for declaratory judgment and order implementing the samc.
5.
(;ase l:1.8.r:v 002:i6-REf3 Document 1. Filed 05/30/18 l)age 6 of 1"5
U.S.C. $ 796(17), Plaintiffs energy storage facility has becn self-ccrtihed as a QF in FERC
Docket No. QFl T-584(001).
I 8, Each of the Franklin Energy Storage Facilities is separately owncd.
B. Party Defendant:
19. Thc Dcfcndant, Idaho Commission, is thc state regulatory authority with
ratemaking .iurisdiction with respect to the sale crf retail electric energy in ldaho and the
responsibility to cany oul ceflain PURPA-related functions, including, under PURPA section
210(f), l6 [J.S.C. $ 824a-3(Q, thc rcsponsibility to implcment FERC's PURPA regulations.
IV.
FACTUAL AI,LEGATIONS AND CLAIMS
20, The Franklin Energy Storage projects bring this civil action to enforce federal
statutes, the Federal Power Acl ("FPA"), l6 U.S.C., Ch 12, the Public Utility Regulatory Policies
Act of l97tl (PURPA), see l6 U.S.C. $ 824a-3, and PERC's regulations implementing PURPA,
.see l8 C--.F'.R. pt.292.
21. Defendant Idaho Public Utilities Commission has established a policy of denying
qualitying power production facilities (Qualifying Facilitics or QFs) see l6 LJ.S.C. 824a-3(a)(l),
that are energy storage qualifying power production facilities their rights under PURPA. In doing
so, the ldaho Commission advanced reasons that usurp thc Federal linergy Regulatory
Commission's ("FERC") exclusive jurisdiction to determine anrl grant power production facilities
their federal status as "qualifying facilities" uncler PURPA.
22. l'he FPA gives FERC exclusive.iurisdiction to regulate wholesale electricity sales
and prices, and thereby establishes a bright line barring states from regulating in that area. l6
Cornplaint for declaratory judgment and order implenrerrting thc same.
6.
Case l lB t:v-(X)236-REB Document 1. Filed 05/30/18 Paget 7 of 1.5
U,S.C--. $ 824(b). 'l'he only exception to that rule is when a state is acting pursuant to its authority
under PURPA.
23. PURPA is designed to cncourage the development of altcmative energy sources,
inclttding, as rclevant here, energy storage facilities that are 'energized'by means of renewable or
alternativesourcesofencrgy. See 16 U.S.C. $ 824a-3(a), Luz l)ev. & Fin. L'orp.5l FERCX6l,078
(r eeO).
24. FERC is charged with establishing regulations to implement PURPA, and
specifically the requirement that electric utilities must purchase power from qualifying power
grrocluction facilities (QFs). l6 U.S.C. $ 82aa-3(aXl). State regulatory authoritics, in turn, are
charged with implementing FERC's regulations. l6 U.S.Cl. $ 8244-3(0.
25. Plaintiffs are each a developer of a 25-rnegawatl ("MW") energy storage generation
facility that is self-certified as a QF.
26. l'he ldaho Commission denied Plaintiff,s their right to the Commission's
established avoided cost rates and contmct terms that it has rnade availablc for all QFs other than
wind or solar.
27 . ln order to do so, the ldaho Commission usurped FERC's exclusive jurisdiction to
rnakc determinations as to the QF status of PTJRPA projects.
28. After having exhausted its adnrinistrative remedies before the ldaho PUC, Plaintitls
pctitioned FERC on F)ecember 14,2017, to find thc ldaho Commission in violation of PURPA
and FEIIC's regulations, and asked FERC to bring an enforcemcnt action against the ldaho
Cotnmission to correct thc violations.
Cornplaint for declaratory judgment and ordcr implementing the same.
7.
Casi:1.l8-cv-()0236-REB Document I Filed 05/3O/l-B Paqle B of 15
29. ln response to their petition, FERC issued a noticc that it would not bring an
cnforcemenl Action on February 15, 2018.
30. FERC's notice of its intent not to act made no finding as to thc merits of Plaintiff.s'
clainrs,
31. FERC's decision not to initiate an enforcement action on behalf of Plaintiff s allows
Plaintiffs to now iniliate this action on tlreir own behalf.
32. Plaintiffs bring this enforcement action under PURPA Section 210(hX2XB), l6
U.S.C. $ 82aa-3(h)(2xB) and ask this Court to direct the ldaho Cornmission to bring its practices
into compliance with PURPA and FERC's PURPA regulations and orders.
v.
STATUTORY AND REGULATORY F'RAMEWORK
33. [Jnder the Suprernacy Clause of the United Statcs Constitution, a state law, rule or
tariff is preempted when Congress intends fbderal law to occupy the field or when a state regulation
stands as an obstacle to the accomplishment of Congress's goals. Under Part Il of the Federal
Power Act. l6 U.S.C. $ 824(b), Congress has granted F'ERC the exclusive authority to rcgulate in
the wholesale electricity field. Only FERC may set wholesale rates and regulate wholesale
markets. The only exception to this rule is if a state is acting pursuant to its authority under
PURPA.
14. Congress enacted PURPA in 1978 to reduce the nation's dependcnce on traditional
fossil fuels for elcctrical generation. Section 210 of PtTRPA sought to accomplish that goal by
encouraging the development of non-traditional electricity gcrrerating facilities.
Complaint for declaratory judgment and order irnplcrnenting the same.
8.
(lase l.:l.B-cv-00236-REB Documertt l. Filed 05/3U18 Page g of 15
35. Congress found that one obstacle to the developnrent of alternative energy projects
was the reluctance of traditional clectric utilities to do business with such projccts. ln response,
section 210 of PURPA created a new class of "favored cogeneration and small power fbcilities" in
the overall regulatory scherne of the nation's energy markets. PURPA directed FERC to
promulgate rules requiring utilities to ptrchase elcctric enelgy {iom Qualifying Facilities that have
"a power production capacity which . .. is not grcater than 80 megawatls." 6l [J.S.C. $ 796( I 7XA).
36. Under PURPA, Congrcss gave state regulatory commissions, such as the ldaho
Commission, the authority to implenrent certain elements of the statute in accordance with FERC's
PURPA rules. l6 U.S.C, $ 824a-3(t),(g). While state utility commissions are charged with
detennining avoided cosl rates at which QFs may sell to utilities, that authority is circumscribed
by PURPA's mandates and FERC regulations, inoluding the requirements that: (i) such ratcs "shall
. .. [n]ot discriminate against [QFs]," I 8 C.F.R. $ 292.3O4(aX I Xii); see alxt l6 U.S.C. $ 824a-
3(cX2); l{l C.F.R. $ 292.302(b)-(d),and (ii)that"[e]achelectric utilityshallpurchase...anyenergy
and capacity which is made available [directly or indireclly] fronr a qualifying facility." l8 C.F.R.
$ 292.303(a). In short, state action to implement PURPA must give effect to its Congressionally-
mandated statutory purposc and FERC's PURPA regulatiotts, including PURPA's requirement
that electric utilities must buy from QFs at rates that cornply with FERC's regulations. l6 U.S.C.
$ 82aa-3(aX2).
37. lJnder PURPA, utilities must purchase electricity from QFs at rates that do not
"exceed the incremental cost to tlrc electric utility of alternative electric energy." /r/. $ 824a-3(b).
'['hat incremental cosl is "thc cost to thc electric utility of the clcctric cnergy which, but ftrr the
purchase from [thc QF], such electric utility would generate or purchase from another source." /c/.
Complaint for declaratory judgment and order implementing the same.
9.
(.ase I:1"8-cv-00236.REB Document L Filed 05/30/i_B Paqe 10 of 1_5
$ 82aa-3(d). That cost is commonly referrcd to as the utility's "avoided cost." l8 C.F.R. $
232. r 0l (bx6).
38, In its duly promulgated regulations, FERC interpreted section 210(a) of PURPA,
l6 U.S.C. $ 824a-3(a), as imposing on electric utilities an obligatiorr to purchase all electric energy
and capacity ntade available aorn qualifying cogeneration and small power production facilities.
See l8 C.F.R. $ 292.303,
39. FERC's regulations provide Qualifying Facilities with an option to sell capacity
and energy to electric utilities pursuant to a "legally enforceable obligation" with the rate
determined at thc time the obligation is incurred. See 18 C.F.R. $ 292.304(dX2).
40. FERC also has issued regulations establishing criteria, including capacity size and
fuel use, and procedures for small power production facilities and other facilities to be certified as
Qualifying Facilities. ,See l8 C.F.R. $$ 292.203(a),292.204.
41. FERC has exclusive authority over QF status determinations. Section 201 of
PURPA provides that a QF is a small power production facility that "the Commission [FERC]
determines, by ntle, meets such requirements.., as the Comnrission may, by rule, prescribe." l6
U.s.C, Sec. 796(l TXCXi)
42. Section 210(0 of PtlRPA, 16 U.S.C. $ 82aa-3(f), requires state regulatory
authorities and non-regulated electric utilities to inrplement FERC's PURPA regulations.
Complaint fior declaratory judgment and order implemcnting the same.
t0.
Case L L8.cv-00236-RF-ti Document 1 filed 05/30/Lfi Page 1L of 15
vt.
IDAHO PUC's PURPA IMPLEMENTAION SCHEME
43. PURPA is implemented in ldaho by thc ldaho Public Utilities Comrnission on an
ad hoc, order-by-order basis. J'here arc no ldaho statutes or administrative rules irnplementing
PURPA.
44. ldaho Power Company, the utility to which the Franklin Projects seek lo sell thcir
PURPA QF qualified power and energy is a public utility subject to regulation by tlre ldaho Public
Utilitics Commissiort. Sce ldaho Code, Title 62.
45. The ldaho Commission has established standard-offer avoided cost rates, with a
contract term of up to twenty-years forall QFs (othcr than solar or wind QFs) if those non-wind
ol non-solar QFs have an electrical generating capacity of ten average rnonthly megawalts
( lOaMW) or less. S.ee IPUC Order Nos. 13357 ancl 33419. For wind and solar QFs, the ldaho
Commission altows wind and .solar QFs of up to 100 kWj similar twenty-year conlracts at
published rates.a However. it limits the availability of its published rate 'standard offer' contracts
to just two years for solar and wind QFs that arc larger than 100 kW. The ldaho Commission nrled
tlut:
After careful consideration, the Cornmission ldaho PUCJ ultimately determined
that it was appropriatc to maintain thc 100 kW eligibility cap tbr publishetl avoided
cost rate for wind and solar QFs.
S'ec IPUC Order No. 32697, at p. 3
I Kilowatl (kW): Orre thousand watts. Mcgarrvatt (MW); One nrilliorr watts ol'
electricity. aMW: average Meguwatt prtxluction over a speciticd tiure, in this cose one nronth.
a Tlre Franklin Energy Storage projects are each designed to generate less that
lOaMW and more than 100 kW.
Conrplaint for declaratory.judgment anrl otder implementing the same.
I I.
I
Case l,:l-B.cv-00236-REB Document l. Filed 05/30/18 Page 12 of 1.5
AruI
This Comnrission fidaho PUC] is confiderrt that, with other changes to the avoided
cost nrethodologies incorporated in the Order, changing eligibility from l0 aMW
for resources other then wind and Solar is unnecessary at this time. We find that a
l0 aMW eligibility cap for access to published avoided cost rates for resources
other than wind and solar is appropriate.,.
.Sse TPLJC Order No. 32697, at p. l5
Finally:
We maintain the eligibility cap at l0 aMW for QF projects other than wind and
solar (including but not limited to biomass, srnall hydro, cogeneration, geothermal
and waste-to-energy.
S'ee IPUC Order No. 32176 atp.9, (parenthetical in original.)
46. 'l'hus, under the ldaho Cornmission's orders implernenting PLJRPA, standard
twenty-year avoided cost rates and contracts are available to non-solar and non-wind QFs with a
ntonthly capacity of ten average megawatts or less. Wind and solar QFs are only entitled to
standard twenty-year avoided cost rates and contracts if they have a nameplate capacity of 100 kW
or less.
47. While states have the authority, and duty, to irnplernent PURPA by establishing
avoided cost rates and terms of conditions for establishing a legally enforceable obligation (a.k.a.
contract). they do not have the authority to deternrine whether a pafiicular project is, or is not, a
QF, "l'hat responsibility is exclusively in FERC's jurisdiction.
VII.
FRANKLIN ENIIRGY STORAGE QF STATTJS
4tl. The Franklin Energy Storage Facilities are each a 25 MW "qualifying srnall power
producer" within the meaning of section 2 t0(hX2XB) of PURPA.
Complaint for dcclaratory judgment and ordcr implementing the same.
t2.
Case 1,1,B-cv-00236.R88 Dor;ument 1" t:iled 05/30/18 Page 1-3 of L5
49. The F'rarrklin Energy Storage Facilities arc all self cerrified QFs pursuant to FERCI
Docket Nos. QFlT-581 through QFlT-584.
50. The Franklin Encrgy Storagc Facilities arc eaclr similarly dcscribed on their Notice
of Self Certification (FERC Fonn 556) at paragraph 7h as follows
The projcct consists of an energy storagc system Qualifying Facility providing
scheduled and dispatchable electricity in forward-looking time blocks. The energy
storagc system that comprises the energy storage Qualifying Facility is designcd to,
and will, receive 100% of its errcrgy input from a combination of renewable energy
sources such as wind, solar, biogas, bioma.s, etc. l'hc current initial dcsign utilizes
solar pltolovoltaic (PV) modules nrounted to single-axis trackers to providc the
electric energy input to the Qualifying Facility's battery storage systetn. The PV
modules are planned to be connected in series/parallel combinations to solar
inverters, rated approxinratcly 2.5 MWac each, (subject to change). 'l"he proposed
electric energy storage Qualifying Facility will consist of an electro-chernical
battery and will have a maximum power output capacity of 25 MWac for a
sustained time period of 5 - 60 minutes. Thc Facility will consist of an alternatc
current (AC) to direct curent (DC) control system. The Qualifying Facility will be
utilized to provide the purchasing utitity with pre-scheduled and dispatchable AC
energy within pre-dctennined timc blocks. Thc sole source of elcctric power and
energy provided to the purchasing utility will be thc electro-chemical reaclion
giving rise to the discharge of electric power and energy by the battery. ln tum, the
sole direct source of cnergy input to the battery Facility will be, as dcscribed above,
rencwable sources.5
5l . Thus, the Franklirr Energy Storage Qualifying facilities are self'-certified as "energy
.storage Qualifying Facilities,"
52. No party, including the Iclaho C-ommission or ldaho Power, has challenged the
status of the Franklin energy storage Quailfyirrg Facilities at FERC-'or bcfore any other tribunal.
53. FERC has ruled that energy storage facilities are a separate and distinct class of
QFs. ln Luz [)ev. & Fin. Corp,,5l FERC fl61,078 (1990) FERC dcclared:
hr sulrt, cnergy storage facilitics such as the proposcd Luz battcry system are a
renewable rcsource for purposes of QF certillcation. Howcver, suclt facilities
s Fornr 556 at fl7h, t'Elt(l Docket Nos. QFlT-581 -- 584.
Cornplaint for declaratory judgnrent and order implenrenting thc same.
t3.
Case 1:18-r;v 0o2.16.REB Docun'tent 1 Ftled 05/30/1-8 Page L4 of 1.5
are subject to the requlrement that the energy input to the facility is itself biomass,
wastc, a renewable resoulce, a geothermal resource. or any combinatiorr thereof or
a demonstration thal any fossil ftrel-fircd input constitutes no nrore than 25 percerrt
of thc total energy input to the facility and such u$es are consistent with tlrcse
enumemtcd in section 3( I 7XB) of the FPA. (emphasis supplicd)
54. 'l'hc Franklin Energy Storage Facilities each exclusively uses a renewable
resource encrgy inpul as required by FERC, and hence has eslablislr its status as a "rencwable
rcsource for purposes of QF ceftification" as required by FERC otders.
55. ln response to ldaho Power's Petition fbr l)eclaratory C)rder, the ldaho Commission
ruled that the F'ranklin Energy Storage Facilities arc not entitled to published avoided cost rates
and twenty-year contracts as are all "other QFs."
56. Because the ldaho Commission found that the Franklin Energy Storage batteries
are energized wilh solar energy, it concluded they are only entitled to the solar or wirtd avoided
cost ratcs and contract ternrs and conditions.
57. The ldaho Commission's ruling violates the FERC's ruling that energy storage
facilities are a distinct class of QFs and arc hence entitled to all of the bcnefits flowing therefrom.
VIII.
CLAIM FOR RELIEF
58. Wherefore, Plaintiflb pray judgntent as tbllows:
59 Declaratory and injunctive relief directing f)efendant to implcment PURPA in a
lawtirl nlanner by recognizing the QF status of energy storage QFs as tlistinct frorn their cnergy
input (source).
Complaint for declaratory judgment and order implementing the samc
t4.
(lasr:: L Lfl-cv Otl236.REB Dttcument 1 FilecJ 05/30/1B F')age 15 of 15
60. Declaratory and injunctive relief directing Defendant to require the utilities under
its jurisdiction to afforcl energy stolage QFs all rights and privileges afforded to "all other" QFs -
other than wind and solar QFs.
6l . All attorneys' f'e€s, costs, and ittterest available under law (including Idaho Code $
a2-l17) and equity.
62. Such other and further relief as may be meet and equitable in the premises.
Dated this 30th day of May 2018.
/s/ lktlt<'t'l '. llunllcv. l'.str
Robert C. Huntley, Esq.
/s/ Peter J, Richsrdson. Esq,
Peter R. Richardson, Esq.
Attorneys for Plaintiffs
Cornplaint for declaratory judgment and order implemerrting the same
t5.
Case 1-:18-cv-00236-REB Document 2 Filed 06/01/18 Page 1 of 15
Peter J. Richardson
515 N. 27th Street
Boise,Idaho 83702
Idaho State Bar No. 3195
Telephone [phone] I
Facsimile: [phone]
peter@richardsonadams. com
Robert C. Huntley
R. HUNTLEY LAW, PLLC
815 West Washington Street
P.O. Box 2188
Boise,Idaho 83701
Idaho State Bar No. 894
Telephone (208) 388-l 230
Facsimile: [phone]
rhuntley@huntleylaw. comAttorney for Plaintiffs
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC
FRANKLIN ENERGY STORAGE THREE,
LLC, FRANKLIN ENERGY STORAGE
FOUR, LLC
Case No.: 1 : l8-cv-00236-REB
Plaintiffs,
FIRST AMENDED COMPLAINT FOR
VIOLATION OF THE FEDERAL POWER
ACT, THE PUBLIC UTILITIES
REGULATORY POLICIES ACT OF 1978,
AND FEDERAL ENERGY REGULATORY
COMMISSION REGULATIONS
vs.
PAUL zuELLANDER, KRISTINE RAPER
ERIC ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,
Defendants.
Plaintiffs as their claim allege:
I.
JURISDICTION AND VENUE
First Amended Complaint for declaratory judgment and order implementing the same.
l.
(This amendment is solely for the purpose of substituting the three Commissioners
as party defendants.)
Case L:18-cv-00236-REB Document 2 Filed 06/01/l-8 Page 2 ot L5
l. Section 210(hX2XB) of PURPA, 16 U.S.C. $ 824a-3(hX2XB), permits any
Quali$ing Facility ("QF")l to petition the Federal Energy Regulatory Commission ("FERC") to
bring an enforcement action under section 210(hX2XA), 16 U.S.C. $ 824a-3(hX2XB).
2. When FERC does not bring an enforcement action within 60 days of the filing of
such a petition, the petitioner may, under section 210(hX2)(B) of PURPA, 16 U.S.C. $ 824A-
3(hX2XB), bring its own enforcement action directly against a State regulatory authority in the
appropriate United States district court.
3. On December 14,2018, Plaintiffs2 petitioned FERC to bring an enforcement
action against the Defendants, and the Idaho Public Utilities Commission ("Idaho Commission"),
under section 210(hX2XA), 16 U.S.C. $ 82aa-3(hX2XA). The petition was docketed as FERC
Docket No. ELl8-50-000. On February 15, 2018, FERC issued a'Notice of Intent Not to Act"
in which it declined to initiate an enforcement action pursuant to section 210(h)(2)(A) of
PURPA. FERC stated: "Our decision not to initiate an enforcement action means that Petitioners
[Franklin Energy Storage] may themselves bring an enforcement action against the ldaho
Commission in the appropriate court." Citing to l6 U.S.C. $ 82 a-3(hX2)(B).
4. This Court has jurisdiction over this action pursuant to PURPA section
210(hX2XA), 16 U.S.C. $ 824a-3(hX2XA), which authorizes Plaintiff to bring an enforcement
action in a United States district court against a state regulatory authority to enjoin violations of
and ensure compliance with PURPA and FERC's PURPA regulations.
I Plaintiffs are each a QF, see infra at fl VII.
2 Franklin Energy Storage One, LLC, Franklin Energy Storage Two, LLC,
Franklin Energy Storage Three, LLC and Franklin Energy Storage Four, LLC (Herein
collectively "Franklin" or the "Franklin Energy Storage").
First Amended Complaint for declaratory judgment and order implementing the same.
2.
Case 1:18-cv-00236-REB Document 2 Filed 06/01/18 Page 3 of 15
5. Venue in this Court is proper because the Defendants in their capacity as the
Commissioners of the Idaho Commission are located in this district and are in control of the state
regulatory authority responsible for implementing PURPA is in this district. The Defendants'
acts and practices that form the basis for the violations alleged in this complaint occurred in this
district.
u.
PRELIMINARY STATEMENT
6. This is an action seeking injunctive and other appropriate relief against the
Defendants for usurping the exclusive authority of the Federal Energy Regulatory Commission
("FERC") to classify Qualifying Facilities C'QF) under the Public Utilities Regulatory Policies
Act of 1978 (PURPA).
7. PURPA grants to state regulatory commissions, such as the Idaho Commission,
the authority to set terms, conditions and even the rates that regulated investor owned utilities
must pay QFs for their electrical output. PURPA also vests exclusive authority in FERC to
determine whether an entity is, or is not, a QF, and as such that it is therefore entitled to the
benefits of such state determination as to the terms and conditions of contracts and the rates that
investor owned utilities must pay QFs for their electrical output.
8. The Defendants set different terms and conditions for two broad classes of QFs.
QFs, called "other QFs" by the Defendants, are entitled to contract terms of up to twenty years
and are entitled to published nonnegotiable rates. The other class of QFs classified by the
Defendants are solar and wind QFs. According to the Defendants (as relevant herein) solar and
wind QFs are only entitled to two-year contracts.
First Amended Complaint for declaratory judgment and order implementing the same.
J.
Case 1:18-cv-00236-REB Document 2 Filed 06/01/18 Page 4 of 15
9. Plaintiffs propose to sell the output from their FERC self-certified QFs at the rates
and contract terms available for "other" projects as classified by the Defendants. The Plaintiff s
projects are energy storage systems (batteries that are energized with solar panels) that are,
according to FERC, distinct QFs apart from the source of energy used to charge the batteries.
10. [n response to the PlaintifPs proposal, the Idaho Power Company ("Idaho
Power") petitioned the Idaho Commission for a declaratory judgment ruling that the Plaintiff s
QF projects are not "other" QFs entitled to trventy-year contracts and more favorable rates but
are instead classified with solar and wind QF's that are only entitled to a two-year contact at
much less favorable rates.
I l. A two-year contract term is uneconomic for the construction of energy storage
projects such as the Franklin Energy Storage facilities.
12. The Defendants granted Idaho Power's petition for a declaratory order by
concluding that the Franklin QF projects fall within that Commission's solar/wind QF
classification.
13. The Defendants' ruling is based on their finding that that energy storage systems
are not distinct QFs but, instead are defined by the nature of the source of their energy input.
This ruling contravenes an express FERC ruling on the nature of energy storage QFs. The
Defendants' ruling deprives the Franklin Energy Storage projects of their right to the Idaho
Commission's more favorable contract terms and rates available to all "other" QFs and instead
restricts them to the less favorable contract terms and rates that are available, under the Idaho
Commission's implementation of PURPA, to just solar and wind QFs.
First Amended Complaint for declaratory judgment and order implementing the same.
4.
Case 1:18-cv-00236-REB Document 2 Filed 06/01/18 Page 5 of 15
14. The resulting two-year contract, versus a twenty-year contract, greatly diminishes,
or virtually destroys the financial / economic viability of the projects.
III.
THE PARTIES
A. Parties Plaintiff:
15. Plaintifl Franklin Energy Storage One, LLC, is an Idaho limited liability
company which has sought to develop an energy storage small power production facility as a
FERC self-certified QF in ldaho. Plaintiff s energy storage facility is a "small power production
facility" within the meaning of Section 210(l) of PURPA. See Section 3(17) of the Federal
Power Act, 19 U.S.C. $ 796(17). Plaintiff s energy storage facility has been self-certified as a
QF in FERC Docket No. QF17-581(001).
16. Plaintiff, Franklin Energy Storage Two, LLC, is an Idaho limited liability
company which has sought to develop an energy storage small power production facility as a
FERC self-certified QF in Idaho. Plaintiff s energy storage facility is a "small power production
facility" within the meaning of Section 210(l) of PURPA. See Section 3(17) of the Federal
Power Act, 19 U.S.C. $ 796(17). Plaintiff s energy storage facility has been self-certified as a
QF in FERC Docket No. QFlT-582(001).
17. Plaintiff, Franklin Energy Storage Three, LLC, is an Idaho limited liability
company which has sought to develop an energy storage small power production facility as a
FERC self-certified QF in ldaho. Plaintiffs energy storage facility is a "small power production
facility'' within the meaning of Section 210(l) of PURPA. See Section 3(17) of the Federal
First Amended Complaint for declaratory judgment and order implementing the same.
5.
Case 1-:l-8-cv-00236-REB Document 2 Filed 06/01/18 Page 6 of 15
Power Act, 19 U.S.C. $ 796(17). Plaintiffs energy storage facility has been self-certified as a
QF in FERC Docket No. QFl7-583(001).
18. Plaintiff, Franklin Energy Storage Four, LLC, is an Idaho limited liability
company which has sought to develop an energy storage small power production facility as a
FERC self-certified QF in Idaho. Plaintiff s energy storage facility is a "small power production
facility" within the meaning of Section 210(1) of PURPA. See Section 3(17) of the Federal
Power Act, 19 U.S.C. $ 796(17). Plaintifls energy storage facility has been self-certified as a
QF in FERC Docket No. QF17-584(001).
19. Each of the Franklin Energy Storage Facilities is separately owned.
B. Party Defendant:
20. The Defendants are the Commissioners of the Idaho Public Utilities Commission,
which is the state regulatory authority with ratemaking jurisdiction with respect to the sale of
retail electric energy in Idaho and the responsibility to carry out certain PURPA-related
functions, including, under PURPA section 210(f),16 U.S.C. $ 824a-3(f), the responsibility to
implement FERC's PURPA regulations.
IV.
FACTUAL ALLEGATIONS AND CLAIMS
21. The Franklin Energy Storage projects bring this civil action to enforce federal
statutes, the Federal Power Act ("FPA"), l6 U.S.C., Ch 12, the Public Utility Regulatory Policies
Act of 1978 (PURPA), see 16 U.S.C. $ 824a-3, and FERC's regulations implementing PURPA,
see 18 C.F.R. pt.292.
First Amended Complaint for declaratory judgment and order implementing the same.
6.
Case 1:18-cv-00236-REB Document 2 Filed 06/01-/1-8 Page 7 of 15
22. The Defendants have established a policy of denying qualifying power production
facilities (Qualifying Facilities or QFs) see 16 U.S.C. 824a-3(a)(l), that are energy storage
qualiffing power production facilities their rights under PURPA. tn doing so, the Defendants
advanced reasons that usurp the Federal Energy Regulatory Commission's ("FERC") exclusive
jurisdiction to determine and grant power production facilities their federal status as "qualifying
facilities" under PURPA.
23. The FPA gives FERC exclusive jurisdiction to regulate wholesale electricity sales
and prices, and thereby establishes a bright line barring states from regulating in that area. 16
U.S.C. $ 824(b). The only exception to that rule is when a state is acting pursuant to its authority
under PURPA.
24. PURPA is designed to encourage the development of alternative energy sources,
including, as relevant here, energy storage facilities that are 'energized' by means of renewable
or alternative sources of energy. See 16 U.S.C. $ 82aa-3(a), Luz Dev. & Fin. Corp. 5l FERC fl
61,078 (1990).
25. FERC is charged with establishing regulations to implement PURPA, and
specifically the requirement that electric utilities must purch,Ne power from qualiffing power
production facilities (QFs). l6 U.S.C. $ 824a-3(a)(l). State regulatory authorities, in turn, are
charged with implementing FERC's regulations. l6 U.S.C. $ 8244-3(0.
26. Plaintiffs are each a developer of a 25-megawatt ("MW") energy storage
generation facility that is self-certified as a QF.
First Amended Complaint for declaratory judgment and order implementing the same.
7.
Case 1:1-8-cv-00236-REB Document 2 Filed 06/01/L8 Page 8 of 15
27. The Defendants' actions denied Plaintiffs their right to the Idaho Commission's
established avoided cost rates and contract terms that the Idaho Commission has made available
for all QFs other than wind or solar.
28. [n order to do so, the Defendants usurped FERC's exclusive jurisdiction to make
determinations as to the QF status of PURPA projects.
29. After having exhausted its administrative remedies before the Idaho Commission,
Plaintiffs petitioned FERC on December 14, 2017 , to find the Defendants in violation of PURPA
and FERC's regulations, and asked FERC to bring an enforcement action against the ldaho
Commission to correct the violations.
30. In response to their petition, FERC issued a notice that it would not bring an
enforcement Action on February 15, 2018.
31. FERC's notice of its intent not to act made no finding as to the merits of
Plaintiffs' claims.
32. FERC's decision not to initiate an enforcement action on behalf of Plaintiffs
allows Plaintiffs to now initiate this action on their own behalf.
33. Plaintiffs bring this enforcement action under PURPA Section 210(hX2XB), 16
U.S.C. $ 82aa-3(h)(2xB) and ask this Court to direct the Defendants to bring their practices into
compliance with PURPA and FERC's PURPA regulations and orders.
V.
STATUTORY AND REGULATORY FRAMEWORK
34. Under the Supremacy Clause of the United States Constitution, a state law, rule or
tariff is preempted when Congress intends federal law to occupy the field or when a state
First Amended Complaint for declaratory judgment and order implementing the same.
8.
Case 1:l-8-cv-00236-REB Document 2 Filed 06/01"/1-8 Page 9 of 1-5
regulation stands as an obstacle to the accomplishment of Congress's goals. Under Part II of the
Federal Power Act, 16 U.S.C. $ 824(b), Congress has granted FERC the exclusive authority to
regulate in the wholesale electricity field. Only FERC may set wholesale rates and regulate
wholesale markets. The only exception to this rule is if a state is acting pursuant to its authority
under PURPA.
35. Congress enacted PURPA in 1978 to reduce the nation's dependence on
traditional fossil fuels for electrical generation. Section 210 of PURPA sought to accomplish
that goal by encouraging the development of non-traditional electricity generating facilities.
36. Congress found that one obstacle to the development of alternative energy
projects was the reluctance of traditional electric utilities to do business with such projects. In
response, section 210 of PURPA created a new class of "favored cogeneration and small power
facilities" in the overall regulatory scheme of the nation's energy markets. PURPA directed
FERC to promulgate rules requiring utilities to purchase electric energy from Qualifying
Facilities that have "a power production capacity which . . . is not greater than 80 megawatts." 61
u.s.c. $ 7e6(17xA).
37. Under PURPA, Congress gave state regulatory commissions, such as the ldaho
Commission, the authority to implement certain elements of the statute in accordance with
FERC's PURPA rules. l6 U.S.C. $ 82aa-3(f),(g). While state utility commissions are charged
with determining avoided cost rates at which QFs may sell to utilities, that authority is
circumscribed by PURPA's mandates and FERC regulations, including the requirements that: (i)
such rates "shall ...[n]ot discriminate against [QFs]," l8 C.F.R. $ 292.304(aXlXii); see also 16
U.S.C. $ 824a-3(c)(2); l8 C.F.R. I292.302(b)-(d), and (ii) that "[e]ach electric utility shall
First Amended Complaint for declaratory judgment and order implementing the same.
9.
Case 1:1-8-cv-00236-REB Document 2 Filed 06/01/1-8 Page 10 of 1-5
purchase...any energy and capacity which is made available [directly or indirectly] from a
qualifuing facility." l8 C.F.R. $ 292.303(a). [n short, state action to implement PURPA must
give effect to its Congressionally-mandated statutory purpose and FERC's PURPA regulations,
including PURPA's requirement that electric utilities must buy from QFs at rates that comply
with FERC's regulations. 16 U.S.C. $ 82aa-3(a)(2).
38. Under PURPA, utilities must purchase electricity from QFs at rates that do not
"exceed the incremental cost to the electric utility of alternative electric energy." Id. $ 824a-
3(b). That incremental cost is "the cost to the electric utility of the electric energy which, but for
the purchase from [the QF], such electric utility would generate or purchase from another
source." Id. $ 82aa-3(d). That cost is commonly referred to as the utility's "avoided cost." 18
c.F.R. $ 232.101OX6).
39. ln its duly promulgated regulations, FERC interpreted section 210(a) of PURPA,
16 U.S.C. g 824a-3(a), as imposing on electric utilities an obligation to purchase all electric
energy and capacity made available from qualifying cogeneration and small power production
facilities. See 18 C.F.R. $ 292.303.
40. FERC's regulations provide Qualifying Facilities with an option to sell capacity
and energy to electric utilities pursuant to a "legally enforceable obligation" with the rate
determined at the time the obligation is incurred. See l8 C.F.R. S 292.304(d\(2).
41. FERC also has issued regulations establishing criteria, including capacity size and
fuel use, and procedures for small power production facilities and other facilities to be certified
as Qualifying Facilities. See 18 C.F.R. $$ 292.203(a),292.204.
First Amended Complaint for declaratory judgment and order implementing the same
10.
Case 1:1-8-cv-00236-REB Document 2 Filed 06/0L/18 Page 1L of 1-5
42. FERC has exclusive authority over QF status determinations. Section 201 of
PURPA provides that a QF is a small power production facility that "the Commission [FERC]
determines, by rule, meets such requirements ... as the Commission may, by rule, prescribe." 16
U.S.C. Sec. 796(17XCXi)
43. Section 210(0 of PURPA, 16 U.S.C. $ 824a-3(f), requires state regulatory
authorities and non-regulated electric utilities to implement FERC's PURPA regulations.
vI.
IDAHO PUC,s PURPA IMPLEMENTAION SCHEME
44. PURPA is implemented in ldaho by the Idaho Public Utilities Commission on an
ad hoc, order-by-order basis. There are no Idaho statutes or administrative rules implementing
PURPA.
45. Idaho Power Company, the utility to which the Franklin Projects seek to sell their
PURPA QF qualified power and energy is a public utility subject to regulation by the Idaho
Public Utilities Commission. See Idaho Code, Title 62.
46. The Idaho Commission has established standard-offer avoided cost rates, with a
contract term of up to twenty-years for all QFs (other than solar or wind QFs) if those non-wind
or non-solar QFs have an electrical generating capacity of ten average monthly megawaffs
(lOaMW) or less. See IPUC Order Nos. 33357 and 33419. For wind and solar QFs, the Idaho
Commission allows wind and solar QFs of up to 100 kW3 similar twenty-year contracts at
3 Kilowatt (kW): One thousand watts. Megawatt (MW): One million watts of
electricity. aMW: average Megawatt production over a specified time, in this case one month.
First Amended Complaint for declaratory judgment and order implementing the same.
11.
Case 1:18-cv-00236-REB Document 2 Filed 06/01/18 Page L2 ol L5
published rates.4 However, it limits the availability of its published rate 'standard offer'
contracts to just two years for solar and wind QFs that are larger than 100 kW. The Idaho
Commission ruled that:
After careful consideration, the Commission [Idaho PUC] ultimately determined
that it was appropriate to maintain the 100 kW eligibility cap for published
avoided cost rate for wind and solar QFs.
See IPUC Order No. 32697, at p. 3
And:
This Commission [Idaho PUC] is confident that, with other changes to the
avoided cost methodologies incorporated in the Order, changing eligibility from
l0 aMW for resources other then wind and Solar is unnecessary at this time. We
find that a l0 aMW eligibility cap for access to published avoided cost rates for
resources other than wind and solar is appropriate...
See IPUC Order No. 32697, at p. 15
Finally:
We maintain the eligibility cap at l0 aMW for QF projects other than wind and
solar (including but not limited to biomass, small hydro, cogeneration, geothermal
and waste-to-energy.
See IPUC Order No. 32176 atp.9, (parenthetical in original.)
47. Thus, under the Idaho Commission's orders implementing PURPA, standard
twenty-year avoided cost rates and contracts are available to non-solar and non-wind QFs with a
monthly capacity of ten average megawatts or less. Wind and solar QFs are only entitled to
standard twenty-year avoided cost rates and contracts if they have a nameplate capacity of 100
kW or less.
a The Franklin Energy Storage projects are each designed to generate less that
lOaMW and more than 100 kW.
First Amended Complaint for declaratory judgment and order implementing the same.
12.
Case 1-:18-cv-00236-REB Document 2 Filed 06/01-/l-8 Page L3 of L5
48. While states have the authority, and duty, to implement PURPA by establishing
avoided cost rates and terms of conditions for establishing a legally enforceable obligation (a.k.a.
contract), they do not have the authority to determine whether a particular project is, or is not, a
QF. That responsibility is exclusively in FERC's jurisdiction.
VII.
FRANKLIN ENERGY STORAGE QF STATUS
49. The Franklin Energy Storage Facilities are each a 25 MW "qualifying small
power producer" within the meaning of section 210(hX2XB) of PURPA.
50. The Franklin Energy Storage Facilities are all self-certified QFs pursuant to
FERC Docket Nos. QFIT-581 through QF17-584.
51. The Franklin Energy Storage Facilities are each similarly described on their
Notice of Self Certification (FERC Form 556) at paragraph 7h as follows:
The project consists of an energy storage system Qualifying Facility providing
scheduled and dispatchable electricity in forward-looking time blocks. The
energy storage system that comprises the energy storage Qualifying Facility is
designed to, and will, receive 100% of its energy input from a combination of
renewable energy sources such as wind, solar, biogas, biomas, etc. The current
initial design utilizes solar photovoltaic (PV) modules mounted to single-axis
trackers to provide the electric energy input to the Qualifying Facility's battery
storage system. The PV modules are planned to be connected in series/parallel
combinations to solar inverters, rated approximately 2.5 MWac each, (subject to
change). The proposed electric energy storage QualiSing Facility will consist of
an electro-chemical battery and will have a maximum power output capacity of 25
MWac for a sustained time period of 5 - 60 minutes. The Facility will consist of
an alternate current (AC) to direct current (DC) control system. The Qualiffing
Facility will be utilized to provide the purchasing utility with pre-scheduled and
dispatchable AC energy within pre-determined time blocks. The sole source of
electric power and energy provided to the purchasing utility will be the electro-
chemical reaction giving rise to the discharge of electric power and energy by the
First Amended Complaint for declaratory judgment and order implementing the same.
13.
Case 1:18-cv-00236-REB Document 2 Filed 06/01/18 Page 1-4 of 15
battery. In turn, the sole direct source of energy input to the battery Facility will
be, as described above, renewable so.r.ces.5
52. Thus, the Franklin Energy Storage Qualifying facilities are self-certified as
"energy storage Qualifying Facilities."
53. No party, including the Defendants, the Idaho Commission or Idaho Power, has
challenged the status of the Franklin energy storage Qualifying Facilities at FERC or before any
other tribunal.
54. FERC has ruled that energy storage facilities are a separate and distinct class of
QFs. In Luz Dev. & Fin- Corp.,5l FERC fl 61,078 (1990) FERC declared:
In sum, energy storage facilities such as the proposed Luz battery system are a
renewable resource for purposes of QF certification. However, such facilities
are subject to the requirement that the energy input to the facility is itself biomass,
waste, a renewable resource, a geothermal resource, or any combination thereof or
a demonstration that any fossil fuel-fired input constitutes no more than 25
percent of the total energy input to the facility and such uses are consistent with
those enumerated in section 3(l7XB) of the FPA. (emphasis supplied)
55. The Franklin Energy Storage Facilities each exclusively uses a renewable
resource energy input as required by FERC, and hence has establish its status as a "renewable
resource for purposes of QF certification" as required by FERC orders.
56. [n response to Idaho Power's Petition for Declaratory Order, the Defendants ruled
that the Franklin Energy Storage Facilities are not entitled to published avoided cost rates and
twenty-year contracts as are all "other QFs."
57. Because the Defendants found that the Franklin Energy Storage batteries are
energized with solar energy, they concluded that the Franklin Energy Storage QF projects are
only entitled to the solar or wind avoided cost rates and contract terms and conditions.
5 Form 556 at t|7h, FERC Docket Nos. QF17-581 - 584.
First Amended Complaint for declaratory judgment and order implementing the same.
14.
Case 1:18-cv-00236-REB Document 2 Filed 06/0L/18 Page 15 of 15
58. The Defendants' ruling violates the FERC's ruling that energy storage facilities
are a distinct class of QFs and are hence entitled to all of the benefits flowing therefrom.
vIII.
CLAIM FOR RELIEF
59. Wherefore, Plaintiffs pray judgment as follows:
60. Declaratory and injunctive relief directing Defendants to implement PURPA in a
lawful manner by recognizing the QF status of energy storage QFs as distinct from their energy
input (source).
61. Declaratory and injunctive relief directing Defendants to require the utilities under
their jurisdiction to afford energy storage QFs all rights and privileges afforded to "all other"
QFs - other than wind and solar QFs.
62. All attomeys' fees, costs, and interest available under law (including Idaho Code
$ l2-l l7) and equity.
63. Such other and further relief as may be meet and equitable in the premises.
Dated this lsr day of June 2018.
/s/ nobert C. Uuntlq
Robert C. Huntley, Esq.
/s/ Peter J. Richardson, Esq.
Peter R. Richardson, Esq
Attorneys for Plaintiffs
First Amended Complaint for declaratory judgment and order implementing the same.
15.
Case 1:18-cv-00236-REB Document 2-1 Filed 06/01"/l-8 Page L of 2
AO zl40 (Rev. 06/12) Summons in a Civil Action
UNTTBo SrarBS DTSTruCT COURT
for the
District of Idaho
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC,
FRANKLIN ENERGY STORAGE THREE, LLC,
FRANKLIN ENERGY STORAGE FOUR, LLC,
Plaintilf(s)
Civil Action No. 1:18-cv-00236-REB
PAUL KJELLANDER, KRISTINE RAPTER ANd ERIC
ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC UTILITIES
COMMISSION,
Defendant(s)
SUMMONS IN A CIVL ACTION
To: (Defendant's name and address)ON FIRST AMENDED COMPLAINT
472 West Washington Street
Boise, ldaho 83702
A lawsuit has been filed against you.
Within 2l days after service of this summons on you (not counting the day you received it) - or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffls attorney,
whose name and address are: Peter J. Richardson Robert C. Huntley
515 N. 27th St. 815 W. Washington St.
Boise, lD 83702 Boise, lD 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
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Date:
Signafire of Clerk or Deputy Clerk
Case 1-:18-cv-00236-REB Document 2-1 Filed 06/01/1-8 Page 2 ot 2
AO 440 @ev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:18-cv-00236-REB
PROOF OF SERVICE
(This section should not be ftled with the court unless required by Fed R Civ. P. 4 (l))
This summons for fuame of individual and title, if any)
was received by me on (date)
D I personally served the summons on the individual at @lace)
on (date)-___;or
D I left the summons at the individual's residence or usual place of abo de with 1name1
, a person of suitable age and discretion who resides there,
on (date), and mailed a copy to the individual's last known address; or
il I served the summons ot (name of individual), who is
designated by law to accept service of process on behalf of (name of organization)
on (date);or
D I returned the summons unexecuted because
D Other (specify):
or
My fees are $for travel and $for services, for a total of$ O.OO
I declare under penalty of perjury that this information is true.
Date:
Server's signature
Printed name and title
Senter's address
Additional information regarding attempted service, etc: