20180817Order Granted IPC Motion.pdf

Case 1:18-cv-00236-REB Document l-6 Filed 08/L7118
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
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RECEIVED
AUG | 7 2018
Boise, ldaho
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC,
FRANKLIN ENERGY STORAGE THREE
LLC, FRANKLIN ENERGY STORAGE
FOUR, LLC,
Case No.: I : 18-cv-00236-REB
Plaintiffs,
MEMORANDUM DECISION AND
ORDBR RE: IDAHO POWER
COMPANY'S MOTION TO
TNTERVENE (DKT.7)
PAUL KJELLANDER, KRISTINE RAPER, And
ERIC ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,
Defendants.
Pending is an unopposed motion to intervene filed by Idaho Power Company ("Idaho
Power"). (Dkt. 7.) Having carefully considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order.
I. BACKGROUND
Plaintiffs Franklin Energy Storage One, LLC, Franklin Energy Storage Two, LLC,
Franklin Energy Storage Three, LLC, and Franklin Energy Storage Four, LLC, bring this civil
action to enforce federal statutes within the Federal Power Act ("FPA") and the Public Utility
Regulatory Policies Act of 1978 ("PURPA") and regulations implementing PURPA promulgated
by the Federal Energy Regulatory Commission ("FERC"). FAC fl 2l (Dkt. 2). Plaintiffs asked
FERC to bring an enforcement action against Defendants and filed this lawsuit after FERC
issued a notice that it would not do so. Id. flfl 1-3, 29-30. Because FERC declined to pursue
VS
MEMORANDUM DECISION AND ORDER RE: MOTION TO INTERVENE - I
Case 1:18-cv-00236-REB Document L6 Filed 08/17118 Page 2 ot 4
Plaintiffs' allegations, Plaintiffs have standing to bring their own enforcement action directly.Id.
\12,33; l6 U.S.C. $ 82aa-3(h)(2xB).
In general, Plaintiffs allege that the Idaho Public Utilities Commission (the "IPUC"),
through its Commissioners Defendants Paul Kjellander, Kristine Raper, and Eric Anderson,
issued a series of orders that improperly classifo Qualifying Facilities ("QFs") under provisions
of PURPA. FAC 1T6 (Dkt. 2). The IPUC recognizes two types of QFs, each regulated differently.
Id.118. Solar and wind QFs are entitled to two-year contracts at negotiated rates, while so-called
"other QFs" are entitled to twenty-year contracts and published nonnegotiable rutes.Id.
Idaho Power petitioned the IPUC for a declaratory judgment ruling that Plaintiffs' QF
projects are not "other QFs" entitled to twenty-year contracts and more favorable rates but are
instead classified with solar and wind QFs that are only entitled to two-year contracts at less
favorable rates. Id. fl 10. The IPUC agreed and granted Idaho Power's petition. Id. n 12. Plaintiffs
disagree with the IPUC order classifying their projects as solar and wind QFs, alleging that
FERC has exclusive authority to determine whether an entity is a QF and that FERC regulations
differentiate energy storage systems from the sources of energy used to charge such systems.ld.
fll| 7, 9. Plaintiffs allege that although their projects involve batteries that are energized with solar
panels, the projects should be classified as "other QFs" and not wind and solar QFs. 1d. fl 9.
Defendants disagree, maintaining that the IPUC properly classified Plaintiffs' projects under
applicable law. Answer fl 9 (Dkt. a).
II. LEGAL STANDARI)
Federal Rule of Civil Procedure 24 allows intervention by right or by permission.
Intervention by right under Rule 24(a)(2) requires that: "(1) the applicant must timely move to
intervene; (2) the applicant must have a significantly protectable interest related to the property
MEMORANDUM DECISION AND ORDER RE: MOTION TO INTERVENE - 2
Case 1:18-cv-00236-REB Document l-6 Filed 08/1-7118 Page 3 of 4
or transaction that is the subject of the action; (3) the applicant must be situated such that the
disposition of the action may impair or impede the party's ability to protect that interest; and (4)
the applicant's interest must not be adequately represented by existing parties." Arakaki v.
Cayetano,324F.3d 1078, 1083 (9th Cir. 2003); see also FEo. R. CIv. P. 2a@)Q).In general,
courts construe Rule 24(a) liberally in favor of intervention. Southwest Center for Biological
Diversity v. Berg,268 F.3d 810, 818 (9th Cir. 2001). Moreover, the court's evaluation is "guided
primarily by practical considerations," not technical distinctions. Id Nonetheless, the "[f]ailure
to satisfy any one of the requirements is fatal to the application ." Perry v. Prop. 8 Official
Proponents, 587 F.3d 947,950 (9th Cir. 2009).
Where intervention as of right is unavailable, a party may still seek permissive
intervention. Under Rule 24(b), "the court may permit anyone to intervene who . . . has a claim
or defense that shares with the main action a common question of law or fact." Fpo. R. Crv. P.
24(bX I XB). The Rule also requires the court to consider "whether the intervention will
unduly delay or prejudice the adjudication of the original parties' rights." Fpo. R. Ctv. P.
24(b)(3). As with Rule 24(a) intervention, the court should interpret the requirements broadly
in favor of intervention. United States v. Aerojet,606 F.3d ll42 (gth Cir. 2010).
IIL DISCUSSION
Relevant here, Plaintiffs challenge the IPUC's grant of a petition filed by Idaho Power.
FAC flfl 10,12,56-58 (Dkt. 2). Idaho Power asserts that it has a direct interest in the outcome of
this proceeding that cannot be adequately represented by any other party, because Idaho Power is
the public utility that will be obligated to purchase energy frorn Plaintiffs' projects. Idaho Power
Mot. to Intervene 2 (Dkt. 7). In this action, Plaintiffs ask this Court for declaratory and injunctive
relief directing Defendants to classify energy storage QFs such as Plaintiffs' as "other QFs."
MEMORANDUM DECISION AND ORDER RE: MOTION TO INTERVENE -3
Case 1:18-cv-00236-REB Document 16 Filed 08/17118 Page 4 oI 4
FAC fl 6l (Dkt. 2). Idaho Power argues that "the outcome of this lawsuit, whether it be to grant
or deny Plaintiffs' requested relief, will both legally and practically affect Idaho Power because
that disposition will affect the terms of the contracts that Idaho Power must enter into with
Plaintiffs for the provision of energy." Idaho Power Mem. ISO Mot. to Intervene 13 (Dkt. 7-l).
No party disputes this contention; likewise, no party opposes Idaho Power's motion.
Because this litigation will directly affect the terms of any contract between Idaho Power
and Plaintiffs, Idaho Power has a significantly protectable interest at stake in this litigation - an
interest that could be impaired if Idaho Power is not permitted to intervene. Moreover, no
existing party currently speaks comprehensively to Idaho Power's interests. Although the IPUC
is aligned to some extent with Idaho Power's position, it is nonetheless a state regulatory agency
with the attendant responsibilities that come with its statutory mission that are inescapably
different than a utility entity over which it exercises some of its regulatory powers.
Accordingly, the Court finds that Idaho Power's unopposed Motion to Intervene (Dkt. 7)
is properly granted under either Rule 24(a)(2) or 2a$)(1)(B).
IV. ORDER
Based on the foregoing,IT IS HEREBY ORDERED that Idaho Power Company's
Motion to Intervene (Dkt. 7) is GRANTED.
DATED: August 17,2018.
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: MOTION TO INTERVENE - 4
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