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Home My WebLink About20180910Plaintiff Facts Support of Motion.pdfCase 1:18-cv-00236-REB Document 29-4 Filed 09/05/18 Page 1 of 6 Peter J. Richardson, ISB# 3195 515 N. 27th Street Boise, Idaho 83702 Telephone (208) 938-790 I Facsimile: (208) 938-7904 pe te-r(a)ri c h ard so nadarn s. conl LLC, FRANKLTN ENERGY FOUR, LLC Robert C. Huntley, ISB# 894 R. HUNTLEY LAW, PLLC 950 West Bannock St., Ste. 600 Boise, ID 8702 Telephone (208) 388- I 230 Facsimile (208) 388-0234 rhutr[lt:l rrt lrrrrrl lr.:\ lirrr r:r'rrt TIf CEIVED 2fl1$ SIP l0 pH 3: 59 ti: t._ '=.ittrt ln:1'1:l'u, uDLll:,l li i ;"ri: li i)fiii,lit{issl0ll Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO FRANKLIN ENERGY STORAGE ONE, LLC, FRANKLTN ENERGY STORAGE TWO, LLC Case No.: I :l 8-cv-00236-REB FRANKLIN ENERGY STORAGE TH PLAINTIFFS' CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiffs, PAUL KJELLANDER, KRISTINE RAPER ERIC ANDERSON, in their official capacity Commissioners of the IDAHO UTILITIES COMMISSION, Defendants. Pursuant to Dist. Idaho L. Rule 7.1(bxl) and FE R. Civ. P. 56, Plaintiffs Franklin Energy Storage One, LLC; Franklin Energy Storage Two, LLC; Franklin Energy Storage Three, LLC and Franklin Energy Storage Four, LLC, herein provides Plaintiffs' Concise Statement of Material Facts in support of their Motion for Summary Judgment. vs. Franklin Energy Storage Concise Statement of Facts in Support of Motion for Summary Judgment. I Case 1:1-8-cv-00236-REB Document 29-4 Filed 09/05/18 Page 2 ot 6 STATEMENT OF FACTS FACTS RELATED TO QUALIT"TING FACILITY STATUS QF FACT l. Plaintiffs, Franklin Energy Storage One, LLC, Franklin Energy Storage Two, LLC, Franklin Energy Storage Three, LLC and Franklin Energy Storage Four, LLC each filed Form 556 "CertiJication of Qualifying Focility (QF) Status for a Small Power Production or Cogeneration Facility" with the Federal Energy Regulatory Commission. Each Plaintiff provided on its respective Form 556 that it is an "Other renewable resource" at ![6a. Each Plaintiff further described itself as, "an energy storage system Qualifying Facility''at't[7h on Form 556. EVIDENTIARY SUPPRORT FOR QF FACT I: Defendant's Exhibits 8, 9, l0 and I l, respectively, filed 6125118. Document Nos. I : l8'cv- 00236-REB Document 4-8,4-9,4-10 and 4,11.. See also FERC Docket Nos. QF17-581-001, QF l T-582-001, QFl T-583-002 and QF l T-582-00 1 . https :/ielibrary. lerc.gov QF FACT 2: No party, including the ldaho Public Utilities Commission or Idaho Power Company has challenged the status of the Franklin Energy Storage Facilities at FERC or before any other tribunal. EVIDENTIARY SUPPORT FOR QF FACT 3: Def. Answer to First Amended Complaint at !f53. Case I : l8-cv-00236-REB Document 7-1. QF FACT 3: Each of the Franklin Energy Storage QFs' Form 556 provides at !f7h that each respective project will "receive 100%o 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..." Franklin Energy Storage Concise Statement of Facts in Support of Motion for Summary Judgment. 2. Case 1:l-8-cv-00236-REB Document 29-4 Filed 09/05/18 Page 3 of 6 EVIDENTIARY SUPPORT FOR QF FACT 3: See QF Fact l. QF FACT 4: All Parties agree that the battery storage facilities' QF status is a matter within FERC's jurisdiction. EVIDENTIARY SUPPORT FOR QF FACT 5: Defendant's Answer to First Amended Complaint at t[ 48. Case I : l8-cv-00236-REB Document 7- I . Idaho Power's Petition for Declaratory Ruling in IPUC Docket No. IPC-E- I 7-0 I at page 6. Case I : I 8-cv-00236-REB Document 7 -5 at page 59. FACTS RELATING TO CONTRACT REQUEST CONTRACT FACT l: In January of 2O17, each of the Franklin Energy Storage QFs requested a twenty-year "Contracting Term" from Idaho Power Company by submitting an Idaho Power Schedule 73 "Qualifflng Facility Energy Sales Agreement Application" EVIDENTIARY SUPPORT FOR CONTRACT FACT l: Declaration of Donovan Walker at Ex. Nos. 1,2,3 and4. Case l:18-cv-00236-REB Document 7-2. CONTRACT FACT 2: Idaho Power responded to the requests referenced in Contract Fact I with a letter dated January 9,2017 identifying three "deficiencies" and requesting that the Franklin Proj ects "supplement [the] Appl i cations with additional informati on. EVIDENTIARY SUPPORT FOR CONTRACT FACT 2: Declaration of Donovan Walker at Ex. 7. Case l: l8-cv-00236-REB Document 7-2. Franklin Energy Storage Concise Statement of Facts in Support of Motion for Summary Judgment. 3 Case 1:18-cv-00236-REB Document 29-4 Filed 09/05/18 Page 4 of 6 CONTRACT FACT 3: The Franklin Projects responded the next day on January 10, 2017, in a letter that asserted "each deficiency you identify is addressed...". EVIDENTIARY SUPPORT FOR CONTRACT FACT 3: Declaration of Donovan Walker at Ex. 8. rd. CONTRACT FACT 4: On January 27,2017,Idaho Power corresponded with the Franklin Projects in a letter stating that, "ldaho Power does not agree that your proposed projects are eligible for published avoided cost Rate Option 4, Non-lrvelized Non-Fueled Rates, with a 20-year contract term." Also, in the January 27,2017, correspondence Idaho Power noted that it had "filed an application to the Idaho Public Utilities Commission requesting a declaratory order that determines the contract term and avoided cost pricing methodology for which your proposed projects may be eligible." EVIDENTIARY SUPPORT FOR CONTRACT FACT 4: Declaration of Donovan Walker at Ex. 9. rd. FACTS RELATING TO THE IDAHO PUBLIC UTILITIES COMMISSION PROCEEDING IPUC PROCEEDING FACT l: Idaho Power filed its Petition for Declaratory Order with the Idaho PUC on February 27,2017 which was assigned docketNo. IPC-E-17-01. EVIDENTIARY SUPPORT FOR IPUC PROCEEDING FACT 1: Declaration of Donovan Walker at Ex. 10. Id. Franklin Energy Storage Concise Statement of Facts in Support of Motion for Summary Judgment. 4. Case 1:18-cv-00236-REB Document 29-4 Filed 09/05/18 Page 5 of 6 IPUC PROCEDING FACT 2: The Idaho PUC issued Order No. 33785 in response to ldaho Power's Petition for Declaratory Order on July 13,2017. EVIDENTIARY SUPPORT FOR IPUC PROCEEDING FACT 2: Declaration of Donovan Walker at Ex. ll. Id. IPUC PROCEEDING FACT 3: The Idaho PUC issued its order on reconsideration (Order No. 33858 in Docket No. IPC-E-I7-01 on August 29,2017. EVIDENTIARY SUPPORT FOR IPUC PROCEEDING FACT 3: Declaration of Donovan Walker at Ex. 12. Id. . Case l:18-cv-00236-REB Document 7-5. FACTS RELATING TO THE T.EDERAL ENERGY REGULATORY COMMISSION PROCEEDING FERC PROCEEDING FACT l: On December 14,2017, Plaintiffs petitioned FERC to bring an enforcement action against the Idatro Public Utilities Commission. 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. FERC state: "Our decision not to initiate an enforcement action against the ldaho Commission means that Petitioners [Franklin Energy Storage] may themselves bring an enforcement action against the Idaho Commission in the appropriate court." EVIDENTIARY SUPPORT FOR FERC PROCEEDING FACT 1: Defendants' Answer to First Amended Complaint at !13 and Ex. Nos I and 2 thereto. Case l: l8-cv-00236-REB Document 4. Franklin Energy Storage Concise Statement of Facts in Support of Motion for Summary Judgment. 5 Case 1:18-cv-00236:REB Document 29-4 Filed 09/05/18 Page 6 of 6 Respectfully submitted this 5th day of Septebmer 2018. /s/ Rohert L:, Uwtky-E;s Robert C. Huntley, Esq. Ess. Peter R. Richardson, Esq. Attomeys for Plaintiffs CERTIFICAT OF SERVICE I HEREBY CERTIFY that on the 5th day of September, 2018, I filed the foregoing electronically through the CM/ECF system, which caused the following parties and counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Brandon Karpen I lt'it ttrlrt t lrllr r1'11111.1 v1tt . t rlitllrr gtrr Edith Pacillo l'.tlillr l,ircilltllrtlltut' trlltlto gri, ScotZanzig Srrltt z.;t t t z t gtr-t.it g" i rIirI tr r. r-lrtv Attorneys for Defendants Steven B, Anderson sha(Oaswblaw.com Wade L. Woodard wlw(rDasbblaw.corn Attorneys for Defendant-Intervenor ldaho Power Company /s/ Iteter J. Richurdson. Esc!. Peter R. Richardson, Esq. Franklin Energy Storage Concise Statement of Facts in Support of Motion for Summary Judgment. 6.