20180910Richardson Affidavit.pdf

Case l-:1-8-cv-00236-REB Document 29-2 Filed 09/05/18 Page L ot 28
Peter J. Richardson, ISB# 3195
515 N. 27'h Street
Boise, Idaho 83702
Telephone [phone] I
Facsimile: [phone]
l)cter ir1 l rchardsoI lltilit nts.cot r t
Attomeys for Plaintiffs
;, : i i: i',/: [-]
Robert C. Huntley, ISB# 894
R. HUNTLEY LAW, PLLC;. ;: f :;, I 0 pli 3: St950 West Bannock St., Ste. 600
Boise, lD8702 ,'i,'i - l ri-l
Telephone (20S) 388-1230 ' r'$li;i
Facsimile [phone]
rhuntley@huntl eyl aw.corn
UNITED STATES DISTRICT COURT
F'OR THE DISTRICT OF'IDAHO
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC
FRANKLIN ENERGY STORAGE THREE,
LLC, FRANKLIN ENERGY STORAGE
FOUR, LLC
Plaintiffs,
Case No.: l: l8-cv-00236-REB
DECLARATION OF PETER J.
RICHARDSON IN SUPPORT OF
PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT
vs.
PAUL KJELLANDER, KRISTINE RAPER
ERIC ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,
Defendants.
I, Peter J. Richardson pursuant to 28 U.S.C. S 1746, hereby declare:
l. I am a member of the bar of the State of Idaho. I am an attorney representing Plaintiffs in
this action. I have personal knowledge of the facts stated below and with the proceedings in this
case.
2. A true and correct copy of the ldaho Public Utilities Commission's Notice of Intervention
and Protest of the ldaho Public Utilities Commissio,n, FERC Docket No. ELl8-50, Jan. 16, 2018
is attached hereto as Exhibit l.
Richardson Declaration
I
Case 1:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 2 of 28
3. A true and correct copy of the Franklin Projects' Petition for Reconsideration before the
Idaho Public Utilities Commission in Docket No. IPC-E-I7-01 is attached hereto as Exhibit No.
Respectfully submitted this 5th day of September 2018.
/s/ Peter J. Richardson. Esq-
Peter R. Richardson, Esq.
Attorney 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
B randon. karpen (i,r)p uc. i daho. gov
Edith Pacillo
Edith.paci I lo(rD,p uc. iclaho. sov
Scot Zanzig
Scott.zanzig(dag. idaho. gov
Attorneys for Defendants
Steven B. Anderson
-.1 urirr. itstr,h I ll \l ..:t,r r I
Wade L. Woodard
wlrt rt ltslrtrlitu .ct,trt
Attorneys for Defendant-Intervenor ldaho Power Company
/s/ Peter J. Richurdson. Esq.
Peter R. Richardson, Esq.
Richardson Declaration
2
Case l-:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 3 of 28
Peter J. Richardson, ISB# 3195
5l 5 N. 27rh Street
Boise,Idaho 83702
Telephone [phone] I
Facsimile: [phone]
pete r(a) ri c h ardso nadams. c on1
Attorneys for Plaintiffs
Robert C. Huntley, ISB# 894
R. HUNTLEY LAW, PLLC
950 West Bannock St., Ste. 600
Boise, lD 8702
Telephone (208) 388- I 230
Facsimile [phone]
rhu ntl e y(<.r) h u n tl e yl aw. cqn
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC
FRANKLIN ENERGY STORAGE THREE,
LLC, FRANKLIN ENERGY STORAGE
FOUR, LLC
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No.: I : I 8-cv-00236-REB
EXHIBIT I TO RICHARDSON
DECLARATION
vs.
Plaintiffs,
PAUL KJELLANDER, KRISTINE RAPER
ERIC ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,
Defendants.
Notice of Intervention and Protest of the ldaho Public Utiltties Commission, FERC Docket No.
ELl8-50. Jan. 16,2018.
Note, the attachments to the IPUC's FERC pleading have not been reproduced in this Exhibit.
Relevant attachments are already included in the record and would be duplicative to reproduce
them herein.
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UNITED STATES OF AMERICA
BEFORE THE
FEDERAL EI\TERGY REGULATORY COMMISSION
Franklin Bnergy Storage One, LLC
Franklin Enerry Storage Two, LLC
Franklin Energy Storage Three, LLC
Franklin Energy Storage Four, LLC
) DOCKET NOS. ELIE-s0-ooo) aFlT-s81-00r) oF17-s82-00r) aFlT-s83-002) aFlT-s84-001
NOTICE OF INTERVENTION AND PROTEST OF THE
IDAHO PUBLIC UTILITIES COMMISSION
The ldaho Public Utilities Commission (ldaho PUC or IPUC) submits this Notice of
lntervention and Protest in response to Franklin Energy Storage One through Four, LLCs'
(Franklin) December 14,2017 Petition for Declaratory Order Pursuant to Section 210(h) of the
Public Utility Regulatory Policies Act of 1978 (PURPA or the Act). The Idaho PUC submits its
Notice of Intervention and Protest under Rules 2ll and 214 of the Federal Energy Regulatory
Commission's (FERC or Commission) Rules of Practice and Procedure ( I 8 C.F.R. $$ 385.21 I and
385.214) and the Commission's December 18,2017 Notice in this case. For the reasons discussed
below, the Commission should dismiss Franklin's Petition as beyond the Commission's
jurisdiction under PURPA Section 210(h), and substantively meritless.
I. SUMMARY
Franklin's Petition asks the Commission to declare, pursuant to Rule 207 of the
Commission's Rules of Practice and Procedure (18 C.F.R. $ 385.207), that certain orders of the
Idaho PUC "are contrary to PURPA," and that Franklin's facilities "are energy storage QFs . . .
entitle[d] to all of the benefits under the fidaho] PUC's orders as are all other non-solar and non-
wind QFs." Petition at l, 10. Franklin also petitions the Commission, pursuant to PURPA Section
210(hX2) (16 U.S.C. $ 82aa-3(h)(2)), to initiate an enforcement action against the ldaho PUC in
federal district court. Id. at L Franklin claims the ldaho PUC improperly denied Franklin's
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"entitlement" to standard (published) avoided cost rates and 2O-year contract terms "based solely
on" the ldaho PUC's "denial of the QF status of the Franklin Energy Storage Facilities"- thereby
usurping FERC's exclusive role. Id. at 2. As discussed below, Franklin's claim is both outside
the Commission's jurisdiction under PURPA Section 210(hX2) and substantively meritless.
Franklin attempts to contest the ldaho PUC's decision to limit the availability of "standard" or
"published" rates and associated contract terms, including contract length, to Franklin's battery
storage projects. Franklin thus attempts to raise "as-applied" claims for which PURPA Section
210(g) vests exclusive jurisdiction in state courts. The Idaho PUC clearly assumed, for purposes
of the case and without making a determination on the subject, that Franklin's facilities are QFs
that had self-certified as such to FERC. The ldaho PUC then squarely exercised its statutory
authority to determine the avoided cost rates and contract terms and conditions that apply to
Franklin's QFs (determining the QFs were entitled to negotiated avoided cost rates and associated
two-year contracts).
II. PLEADINGS AND OTHER COMMUNICATIONS
All correspondence and communications about this proceeding should be addressed to the
following persons on behalf of the ldaho PUC:
Camille Christen (lSB # 10177)
Karl Klein (lSB # 5156)
Deputy Attorneys General
Office of the Attorney General, State of ldaho
Idaho Public Utilities Commission
472 West Washington (83702-5918)
PO Box 83720
Bo ise, ldaho 837 20-0074
Telephone: [phone]
Fax: [phone]
E-mail: gamillc.clrri:len,-rt ltttc itlitlto.gov
karl.kle [e-mail]
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III. NOTICE OF INTERVENTION AND BACKGROUND
A. The Idaho PUC and Nolice of Intervention
The Idaho PUC is the state agency that regulates public utilities in ldaho. Idaho Code $$
6l-129,61-501. Idaho Power Company, with whom Franklin sought contracts under PURPA, is
an electric public utility subject to the ldaho PUC's regulatory jurisdiction. See Petition at5,ldaho
Code $ 6l-l 19. As a state utility commission, the ldaho PUC is authorized to implement PURPA,
including by setting avoided cost rates and ordering electric utilities to enter PURPA contracts
with QFs. Portland Gen. Elec. Co. v. Fed. Energt Regulatory Comm. (FERC),854 F.3d 692,695
(D.C. Cir.2017); 16 U.S.C. $ 824a-3(a), (b); Idaho Code gg 6l-502,61-503. To the extent
necessary to ensure that it is a party to all aspects ofthis proceeding with full rights of participation,
the ldaho PUC now intervenes in this proceeding under Rule 214(a)(2), 18 C.F.R. $
385.214(a)(2).'
B. History of lhe Proceeding Regarding Franklin's Facilities at the Idaho PUC
Franklin's facilities consist of four battery storage facilities, self-described as "qualifying
small power producers" under PURPA, to be located "in ldaho . . . adjacent to one another [with
a shared] interconnection onto the . . . Midpoint-Humboldt transmission line.n' Petition at 2-3. The
facilities are self-certified as QFs via FERC Form No. 556. Id. at 3. Franklin asked ldaho Power
for PURPA energy sales agreements for its QFs, asserting it is entitled to published avoided cost
rates and 2}-year terms. See IPUC Order No. 33785 at 3, 338 P.U.R.4th 157 (2017) (Attachment
A), reconsideration denied,IPUC Order No. 33858 (2017) (Attachment B). The primary energy
I Pursuant to Rule 102(c)(2) of the Commission's Rules of Practice and Procedure (18 C.F.R. g 385.102(cX2)), the
Idaho PUC, as a respondent, is automatically a party to this proceeding. Californiansfor Renewable Energt, lnc. v.
PqcilicGas&Elec.Co.,l43 FERC'I61,005at61,006(2013); Ne. EnergtA.ssoc. y. BostonEdisonCo.,gl FERCfl
6l ,069 n.4 (2000). The ldaho PUC has also given notice of intervention, in order to ensure that it has party status as
to all aspects of Franklin's petition.
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source for Franklin's QFs is solar generation, and "the enorgy generation output profiles for the
battery storage facilities are a direct reflection of the solar generation that operates as the primary
energy source for the battery storage facilities."2 Id. (citing [daho Power's Petition for Declaratory
Order and Attachments l-5, IPUC Case No. IPC-E-17-01 (filed with IPUC Feb.27,2017) (ldaho
Power Petition to IPUC)).
Idaho Power told Franklin it did not believe Franklin's QFs were eligible for published
rates and 2D-year contracts. Id. ldaho Power then petitioned the ldaho PUC for a declaratory order
determining the proper contract terms, conditions, and avoided cost pricing for PURPA contracts
between Idaho Power and Franklin. Id. at I (summarizing ldaho Power Petition to IPUC).
The ldaho PUC found it had jurisdiction to issue a declaratory order on ldaho Power's
petition, and that declaratory relief was appropriate. Id. at l0 (citing Idaho Code $$ 10-1201 et
seq.; Utah Power & Light Co. v. Idaho Pub. Uttl. Comm'n, ll2ldaho 10, 12, 730 P.2d930,932
(1986); Hanisv.CassiaCounty,106 ldaho5l3,5l7,68l P.2d988,992 (1984)). Contraryto
Franklin's assertion here, the ldaho PUC found Franklin's "battery storage facilities' QF status is
amatterwithinFERC'sjurisdictionandisnotatissueinthiscase." Id.atIl. Thequestionbefore
the ldaho PUC was not QF status, but what avoided cost rates and contract terms apply to
Franklin's QFs. Consistent with its statutory and FERC-delegated authority, the ldaho PUC
determined Franklin's QFs were eligible for negotiated (non-standard) avoided cost rates and
associated two-year contracts, based on the fact that their primary energy sounce is solar energy.
Id. at 12-13.
2 Franklin admits in the projects' FERC Form Nos. 556 that'[t]he current initial design utilizes solar photovoltaic
(PV) modules . . . to provide the electric energy input to the Qualifying Facility's battery storag€ system." Petition
at 3 (quoting FERC Form No. 556[emphasis added).
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IV. PROTEST
The ldaho PUC protests Franklin's Petition under Rule 2ll, 18 C.F.R. $ 385.211, and
respectfully requests that this Commission dismiss the Petition for lack of jurisdiction under
PURPA Section 210(hX2), and deny Franklin's requestfordeclaratory relief under Rule 207 of
the Commission's Rules of Practice and Procedure (18 C.P.R. $ 385.207).
A, States Hove Authority to Delermine Application of Publkhed (Standard) Rates Under
PARPA
Under PURPA, FERC prescribes "broad, generally applicable rules" for the Act's
implementation. Portland Gen. Elec.,854 F.3d at 695; see also l6 U.S,C. $ 824a-3(a), (b). The
Act also "requires state public-utility commissions to implement FERC's rules at the local level."
Portland Gen. Elec.,854 F.3d at 695; see also l6 U.S.C. $ 824a-3(f). State commissions "may
comply with the statutory requirements by issuing regulations, by resolving disputes on a case-by-
case basis, or by takinga;ny other action reasonably designed to give effect to FERC's rules."
FERC v. Mississippi, 456 U.5.742,751 ( I 982). FERC has long recognized that exercise of a state
commission's discretion in applying PURPA standards to particular contracts is outside the scope
of FERC's PURPA Section 210(h) enforcement authority. Policy Statement Regarding the
Commisston's Enforcement Role Under Section 210 of the Public Utility Regulatory Policies Act
of 1978,23 FERC 1[ 61,304 at61,645 (1983) (". . . the Commission's role is limited regarding
questions of the proper application of these rules on a case-by-case basis").
B. The ldaho PUC Has Established Requirementsfor the Application of Published (Srandard)
Avoided Cosl Rates, Consistent wilh PaRPA and FERC Regulalions
The Commission's rules require state commissions to establish "standard rates for
purchases from [QFs] with a design capacity of 100 kilowatts or less," and permits state
commissions to establish "standard rates for purchases from [QFs] with a design capacity of more
than 100 kilowatts." l8 C.F.R. $ 292.304(cXl), (2). Consistent with these regulations, the ldaho
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PUC established trvo methods for calculating avoided cost rates depending on the size of the QF
project: the surrogate avoided resource methodology for standard (or published) avoided cost
rates; and the integrated resource plan methodology for negotiated (non-standard) avoided cost
rates. See IPUC Order No. 32697 at 7-8, 302 P.U.R.4'h 374 (2012) (Attachment C) (IPUC granted
reconsideration or clarification on certain issues in IPUC Order Nos. 32737 ,32802, and 32871).
Under the Commission's rules, standard rates "[mJay differentiate among [QFs] using
various technologies on the basis of the supply characteristics of the different technologies." I 8
C.F.R. $ 292.304(cx3xii). Consistent with that rule, the ldaho PUC has set the eligibility cap for
wind and solar QFs to qualify for published avoided cost rates at 100 kilowatts (kW), the minimum
threshold established by FERC's PURPA regulations. IPUC Order No. 32697 at 9; l8 C.F.R. $
29230a@)(). Published rates are available for QFs of all other resource types with a design
capacity of up to l0 average megawatts (aMW). IPUC OrderNo.32697 at7-8. The ldaho PUC
established these published rate eligibility caps while investigating "disaggregation"-the
breaking up of one large project "into smaller projects 'in order to obtain published avoided cost
rates that exceed a utility's actual avoided sss1"'-!y solar and wind QFs. IPUC Order No.32262
at 3 (201l) (Attachment D). In that case, the ldaho PUC found that setting eligibility caps as
described above would address the disaggregation problem.3
The Idaho PUC has established Z0-year terms forstandard published rate contracts. See
IPUCOrderNo.33357 at1,7,324P.U.R.4th320(2015)(AttachmentE)(IPUCdismissedissues
raised on reconsideration in IPUC Order No. 33419). For non-standard, integrated resource plan
methodology-based PURPA power purchase contracts, the ldaho PUC found that a two-year term
3 ln deciding which QF resource types should have a lower eligibility cap, the ldaho PUC specifically considered
biomass, small hydro, cogeneralion, geothermal, and waste-to-energy, and found they did not present the same
potential for disaggregation. IPUC Order No. 32176 at 9, 287 P.U.R.4th 316 (201 l) (Attachment F). The ldaho
PUC did not address battery storage.
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was reasonable, consistent with FERC regulations and the intent of PURPA, and achieved an
appropriate balance between the competing interests of protecting ratepayers and developing QF
generation. Id. at25. Franklin's demand that ldaho Power fumish it with twenty-year, standard
rate power purchase agreements for each of its five battery storage units thus raised issues as to
both the appropriate rates and the appropriate duration for those agreements.
Until ldaho Power petitioned the Idaho PUC for declaratory relief regarding Franklin's
requested PURPA contracts, the ldaho PUC had not yet considered the eligibility cap for a battery
storage QF to receive standard avoided cost rates and associated terms and conditions in a PURPA
contract.a In considering ldaho Power's petition, the ldaho PUC found Franklin's storage QFs
have "design capacities that will exceed 100 kW each . . . with solar as their primary energy source"
and generation profiles consistent with solar as the primary energy source. Id. at 12-13. The ldaho
PUC thus found Franklin was eligible for negotiated avoided cost rates and two-year contracts. /d.
at 13.
C. The Idaho Commission's Application of Its Rules on the Availability otStandard Rales and
Controcl Duralion to Franklin's Projects Is Not Subjeclto Challenge Under PUWA Section
210(h) or Rule 207 of the Commission's Rules of Praclice and Procedure
Franklin's attempts to re-characterize the Idaho PUC's Order Nos. 33785 and 33858 as
involving a "denial of the QF status of the Franklin Energy Storage Facilities" orthe usurpation
of "the exclusive role of this Commission to establish criteria for, and to adjudicate, the legal status
of Qualifying Facilities" (Petition at 2) cannot modify what the ldaho PUC actually did in those
Orders. As described above, the ldaho PUC simply looked to the facts specific to Franklin's
projects to determine that the projects were subject to the 100 kW (nameplate) size cap and two-
year contract duration provided for solar facilities under ldaho's PURPA implementation. Put
a See supra note 3.
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anotherway, the ldaho PUC found, based on Franklin's own description of the primary energy
source of its proposed projects, that Franklin's projects were eligible for integrated rcsource plan-
based, non-standard rates and two-year power purchase agreements, rather than the twenty-year
term standard rate agreements that Franklin had demanded from ldaho Power. The ldaho PUC's
determination is an application of its permitted discretion as to the allowance of standard rates for
projects having a design capacity in excess of 100 kW (18 C.F.R. $ 29230a(cX2)). Review of
this determination is entrusted by PURPA Section 210(g)(l) (16 U.S.C. $ 824a-3(g(l)) to the
Idaho Supreme Court,s and not to this Commission or the federal courts.
PURPA Section 210(g) requires that challenges to a state regulatory commission's
application of its PURPA implementation rules to a particular project be brought in the state's
appellate courts, through the state appellate processes generally available for review of that
regulatory commission's determinations.6 In this case, any challenge that Franklin proposed to
s Section 210(g)(l) of PURPA (16 U.S.C. $ E24a-3(g)(l)) provides that "Judicial review may be obtained respecting
any proceeding conducted by a State regulatory authority or nonregulated electric utility for purposes of implementing
any requirement of a rule under subsection (a) in the same manner, and under the same requirements, as judicial review
may be obtained undcr section 123 (16 U.S.C. $ 2633) in the case of a proceeding to which section 123 (16 U.S.C. $
2633) applies." Section 123(cXl)of PURPA(16 U.S.C. $ 2633(cXl)provides:
Any person . . . may obtain review of any determination made under subtitle A or B or
under this subtitle with respect to any electric utility . . . in the appropriate State court if
such person (or the Secretary) intervened or otherwise participated in the original
proceeding or if State law otherwise permits such review. Any person . . . may bring an
action to enforce the requirements of this title in the appropriate State court, except that no
such action may be brought in a State court with respect to a utility which is a Federal
agency. Such review or action in a State court shall be pursuant to any applicable State
procedures.
8 Porlland Gen. Elec. Co. v. FERC, supra,854 F.3d at 698 ("State-based adjudication serves as the mainstay for
enforcing PURPA rights. PURPA section 210(g) . . . permits 'any person' to 'bring an action against any electric
utility [or] qualifoing small power producer . . . to enforce any requirement'created by a state's implementation of
PURPA. . . Reflecting Congress's judgment that 'federal rights granted by PURPA can appropriately be enforced
through state adjudicatory machinery ,' Mississippi. 456 U.S. at 761, the statute channels actions under this subsection
into 'the appropriate State court,' PURPA $ 123(c[l ), l6 U.S.C. $ 2633(c[l f'); Exelon llind l, LLC v. Nelson,766
F.3d 380, 388 (5'h Cir. 2014) ('PURPA provides fortwo types of review of a state utility regulatory authority's actions:
implementation and as-applied challenges. Federal courts have exclusive jurisdiction over implementation
challenges, while state courts have exclusive jurisdiction over as-applied challenges"\; Power Res. Grp. v. Pub. Util.
Comm'n of Texas, 422 F.3d 231,235 (5th Cir. 2005) ("Federal courts may not hear 'as applied' claims, because
jurisdiction over such claims is rcserved to the state courts").
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make to the ldaho PUC's OrderNos. 33785 and 33858 had to be brought before the Idaho Supreme
Court under ldaho Code S 6l-627, the customary path to judicial review of tdaho PUC orders in
the ldaho judicial system.T As a result, the federal courts have no jurisdiction over Franklin's
claims under PURPA Section 210(h), because that provision confers no jurisdiction in "as-applied"
cases. This Commission likewise has no jurisdiction over Franklin's claims under Rule 207 of its
Rules of Practice and Procedure (18 C.F.R. $ 385.207) or the authority granted by 5 U.S.C. $
55a(e) with respect to declaratory orders, because PURPA entrusts the resolution of disputes over
the application of PURPA rules to the exclusive jurisdiction of the state courts.
D. Franklin Fails lo Show the ldaho PUC Exceeded Its Authority or Olherwise Acted Contrary
to PURPA
L The ldaho PUC made nolinding about Fronklin's QF status.
Franklin incorrectly contends the ldaho PUC determined Franklin's facilities were not QFs.
Based on this false contention, Franklin argues, wrongly, that the ldaho PUC usurped FERC's
exclusive authority to certify the facilities as QFs. Petition at 2. Franklin's reliance on Indep.
Energt Producers Ass'nv. Colifurnio Pub. Util. Comm'n,36F.3d 848,856 (9th Cir. 1994) is
misplaced. Here, the ldaho PUC adhered to the Ninth Circuit Court's decision by plainly
recognizing Franklin's battery storage facilities had "self-certified as QFs," and whether those
facilities are QFs "is a matter within FERC's jurisdiction and is not at issue in this case."8 [PUC
1 See ldaho Power Co. v. Idaho Pub. Util. Comm'n,155 ldaho 780, 788, 316 P.3d 1278 (2013) (ldaho Supreme
Court review of ldaho PUC findings conceming the alleged establishment of a "legally enforceable obligalion"
under l8 C.F.R. $ 292.304(d)QD.
E Quoting the Idaho PUC out of context, Franklin misconstrues IPUC Order No. 33785, alleging the ldaho PUC
asserted battery storage facilities "are not presume[d] to be a legitimate . . . qualifying facility eligible for the benefits
of PURPA." Petition at 8 (internal citations omitted). Read in context, the ldaho PUC conveyed that it is the role of
FERC-not the ldaho PUC-to determine QF status. Rather, the ldaho PUC stressed it would not weigh in on that
subject at all:
Indeed, FERC acknowledged [in Luz Dev. & Fin. Corp.,5l FERC fl 61,078,61,171 (1980)] that
"[n]either the statute nor the final rule refers specifically to energy storage systems.
Consequently, our ruling on the narrow declaratory issue before us should not be read to presume
that [the ldaho PUC] deems battery storage to be a legitimate qualifring facility eligible for the
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Order No. 33785 at 3, I l. Having accepted the premise Franklin's battery storage facilities are
QFs, the ldaho PUC then properly turned to the issue of what avoided cost rates and contract
duration those QFs would be eligible to receive.
2. The ldaho PUC was within its aulhority when it determined thot Franklin is
eligible for negotiated (no n -stan dard) avo ided cost rates.
Franklin claims the ldaho PUC "wrongfully . . . avoid[ed] its obligation to implement
PURPA" by denying Franklin its "entitlement to the ldaho [PUC]'s 'standard' twenty-year
contract term and associated rates." Petition at 2. Franklin's claim fails because it baselessly
presumes Franklin's QFs are entitled to standard rates and 2D-year contracts. And it ignores that
the Idaho PUC has authority under PURPA to determine what avoided cost rates and contract
terms apply to QFs, including Franklin's. Indeed, PURPA requires that state commissions
implement FERC's rules at the local level, including by setting, in their discretion, standard and
other avoided cost rates. l6 U.S.C. $ 824a-3(f); Portland Gen. Elec.,854 F.3d at 695; Idaho Power
Co., 155 ldaho at782,316 P.3d at 1280. Franklin's requested relief-that the Commission
"invalidate and permanently enjoin all conditions imposed [by the Idaho PUCJ on energy storage
QFs that prevent them from entitlement to" standard rates----contradicts the very notion of state
commission discretion in implementing PURPA.
In considering what eligibility cap should apply to Franklin's QFs, the ldaho PUC
exercised its discretion under PURPA, FERC regulations, and applicable case law. The ldaho
PUC observed that neither PURPA nor FERC's implementing regulations "identifies battery
storage as a renewable resource eligible for QF status and the benefits provided by the Act." IPUC
benefits of PURPA and subject to the Act's implementing regulations under FERC. The battery
storage facilities' QF status is a matter within FERC's jurisdiction and is not at issue in this case.
IPUC Order No. 33785 at l0-l I (internal citation omitted).
NOTICE OF INTERVENTION AND
PROTEST OF THE IDAHO PUC t0
20180116_urrucffi.Llfl qU;gq??"6rSEBrzPpzqtffqt,?9;1, giled 0e/05/18 pase L4 ot 28
OrderNo. 33785 at l0.e Despite this, and as explained above, the ldaho PUC assumed for purposes
of the case that Franklin's battery storage facilities are QFs that qualify for PURPA benefits. The
Idaho PUC then looked to the Commission's decision in Luz Dev. & Fin. Corp.,sl FERC 'u 61,078
(1990) to decide the extent of those benefits. ln Luz, the Commission determined a battery
system's primary energy source "is not the electro-chemical reaction. Rather, it is the electric
energy which is utilized to initiate that reaction . . . ." Luz,5l FERC at fl 6l,17l. Accordingly,
the Idaho PUC considered the Franklin QFs' primary energy source in evaluating the types of
benefits the QFs would qualify for under PURPA-that is, the QFs' applicable avoided cost rates
and contract terms. IPUC Order No. 33785 at I I - I 2; see c/so IPUC Order No. 33858 at 3. Given
the record before it, the ldaho PUC found the Franklin QFs are primarily energized by the sun,
with energy generation output profiles that directly reflect the solar generation operating as their
primary energy source. IPUC Order No. 33785 at I l -12. The ldaho PUC thus determined the 100
kW eligibility cap (used for solar QFs) should apply to Franklin . Id. at 12. Because Franklin's
facilities were designed to be larger than 100 kW, the projects are eligible for two-year contracts
and non-standard integrated resource plan-based avoided cost rates. Id. at 12-13.
Further, Franklin appears to argue the ldaho PUC violated its own "clearly established"
prior orders by denying the Franklin QFs' "entitlement" toZ}-year contracts at standard rates.lo
Petition atZ,4-7. Franklin refers to the ldaho PUC's earlier determination that standard published
avoided cost rates and 20-year contracts are available to wind and solar QFs with a design capacity
of up to 100 kW and to "all other resources" with a design capacity of up to l0 aMW. Id. at 5.
e Franklin mischaracterizes the ldaho PUC's observation as "inexplicable," despite including the ldaho PUC's
citation to Luz Dev. & Fin. Corp.,sl FERC 1161,078,61,171 (1990), in which FERC acknowledged, "[n]eitherthe
statute nor the linal rule refers specifically to €nergy storage syslems." Petition at 9.
l0 Franklin asserts there is a "two-prong" test for eligibility to "[20]-year slandard avoided cost rates and contracts."
Petition at 5-6. The Idaho PUC has not characterized its establishment of the eligibility for published avoided cost
rates as a two-part test, nor has it analyzed QFs' eligibility for such rates in that manner.
NOTICE OF INTERVENTION AND
PROTEST OF THE IDAHO PUC I I
2o1Bo11G_u*ucFfiF"1tg-qU;gq??EiBFB,z?p;#rlprlt,?9;Zu $fled 0e/0s/18 Pase 15 of 28
Franklin's argument fails because the ldaho PUC had not previously considered battery storage
facilities' eligibility for published avoided cost rates,rl
Franklin has identified no basis for FERC to disturb the ldaho PUC's valid exercise of ir
statutorily delegated authority and discretion to decide which avoided cost rates and contract terms
should apply to Franklin's QFs. Further, Franklin's requested relief would itself violate PURPA
by improperly prohibiting the ldaho PUC from carrying out its statutory duty. Accordingly, the
Commission should deny Franklin's Petition.
V. CONCLUSION
For the foregoing reasons, the Commission should reject Franklin's Petition and dismiss it
with prejudice.
Respectfully submitted this l6th day of January 2018,
FOR THE IDAHO PUBLIC UTILITIES COMMISSION
LAWRENCE G. WASDEN
IDAHO ATTORNEY GENERAL
lsl Camille Christen
Camille Christen
Karl Klein
Deputy Attomeys General
ldaho Public Utilities Commission
PO Box 83720
Boise, lD 83720-0074
Tele: [phone]Fax: [phone]
E-mail: carn i I le.christ_eU@puudal r,r.gov
[e-mail]
Attomeys for the ldaho Public Utilities Commission
tt See supra note 3.
NOTICE OF INTERVENTION AND
PROTEST OF THE IDAHO PUC l2
2 o 1 I 01 16 - s2 8 Camcl ffi cttflffiIQrB$B rpgpgner[ 39-,3 e Etlpd 09/05/18 Page 16 of 28
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this l6th day of January 2018, served the foregoing
Notice of Intervention and Protest of the ldaho Publie Utilities Commission, in FERC Docket
No. ELIS-50-000, upon each person designated on the oflicial service list compiled by the
Secretary ofthe Federal Energy Regulatory Commission.
ls/ Camille C.hristen
Camille Christen
Deputy Attorney General
Case 1:l-8-cv-00236-REB Document 29-2 Filed 09/05/18 Page 17 of 28
Peter J. Richardson, ISB# 3195
515 N.27th Street
Boise, Idatro 83702
Telephone [phone] I
Facsimile: [phone]
rt:tt't iri t lr'llitt'rlsrrttil( lilll !\ r'(!l I i
Attorneys for Plaintiffs
Robert C. Huntley, ISB# 894
R. HUNTLEY LAW, PLLC
950 West Bannock St., Ste. 600
Boise,ID 8702
Telephone [phone]
Facsimile [phone]
rh u ntl e y@,huntl e yl aw. com
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC
FRANKLIN ENERGY STORAGE THREE,
LLC, FRANKLIN ENERGY STORAGE
FOUR, LLC
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No.: I : 18-cv-00236-REB
EXHIBIT 2 TO RICHARDSON
DECLARATION
vs.
Plaintiffs,
PAUL zuELLANDER, KRISTINE RAPER
ERIC ANDERSON, in their oflicial capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,
Defendants.
Franklin Projects' Petition for Reconsideration before the ldatro Public Utilities
Commission in Docket No. IPC-E-17-01.
Case i.:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 18 of 28
Peter Richardson (lSB # 3195)
515 N. 27th Street
Boise, tdaho 83702
Tel. [phone]
pe te r(4 r i_q hard sonademSCg11
Attorney fbr the Franklin Energy Storage Projectsl
BEFORE THE IDAIIO PUBLIC I.JTIt,N'IES COMMISSION
U
IN THE MATT'ER OF IDAHO POWER
COMPANY'S PETITION FOR
DECLARA'IORY ORDER RECARDINC
PROPER CONTRACT TERMS,
CONDITIONS, AND AVOIDED COST
PRICING F'OR BATTERY STORAGE
FACILITIES
CASE NO, IPC.E.I7.OI
}-RANKLIN ENERGY STORAGE
PROJECTS' PETI'TION FOR
RECONSIDERATION
)
)
)
)
)
)
)
)
COMES NOW, the Franklin Energy Storage Proiects ("F-ranklin"), and pursuant to
Rules 33 and 331 of the ldaho Public Utilities Commission's ("ldaho Commission") Rules of
Procedure and pursuant to ldaho Code $ 6l-626 and hereby respectfully lodges its Petition for
Reconsideration of Order No. 33785 ("Final Oder") issued on July 13, 201 7 in the above
captioned matter. For the reasons set forth in detail below. Franklin requests reconsideration of
Order No. 33785 because those parts of Order No. 33785 discussed below are mistaken,
unreasonable. unlawflul, enoneous and not in confbrmity with the law. Commission Rule of
Procedure 331 requires that Franklin state the nature and extent of evidence or argument it will
present or off'er if reconsideration is granted. Franklin does not believe that additional evidence
I Franklin Energy Storage One, [.1,C; F'ranklin Energy Storage ]-wo, l-t.('; tiranklin Energy
Storage Three, l,t.C and Franklin Energy Storage F'our, [,1,C (Herein collectively "Franklin
Energy Storage Projects" or "Franklin").
l-ranklin Energy Storage Projects'
Petition for Reconsideration
IPC-E-r7-01
1
I I
Case 1:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 19 of 28
is necessary lor the ldaho Commission to reconsider its order. Therefore, because the issues
raised herein are legal in nature, [;ranklin does not seek reconsideration by evidentiary hearing
but is, however. prepared to present argument as the Idaho Comnrission may deenr appropriate
I
T'Hlr COMMISSION'S ORDER
BACKGROTJNT)
Idaho Power initiated this docket via a Pelition lbr Declaratory Ruling ("Petition") asking
the ldaho Commission to declare that energy storage QFs that use solar renewable energy as
their energy input source are. in f'act, solar QFs fbr purposes of entitlement to contracl terms and
conditions pursuant to the Idaho Commission's implementation of PURPA:
Idaho Pt'rwer respectfully requests that the Commission issue a declaratory ordcr, without
prejudice to ldaho Power's position on the validity of the underlying scll'-certilications,
finding that, under the facts presented, the Proposed Battery Storage Facilities are subject
to the same 100 kW published avoided cost rate eligibility cap applicable to wind and
solar fhcitities.2
[Jnder the ldaho Commission's implementation scheme tbr PtiRPA projects, wind and solar
Qualilying F'acilities are restricted to published avoided rate conlracts ofjust two-years. All
other QF resource types are eligible, under the Idaho Commission's inrplementation schente, to
sell their output to ldaho Power purstunt to published avoided rates and twenty-year contracts.
'l'he Idaho L-ommission's ruling prohibiting access to twenty-ycar oontracts is explicitly
restricted to solar and wind QFs while all other QF types are eligible to execute twenty-year
contracts, According to the ldaho Commission:
After careful consideration, the (lommission ultlmately determirred that it was
appropriate to maintain the 100 kW eligibility cap fbr publishecl avoided cost rates tbr
wind and solar QFs.
2 ldah<r Power Pelitktn.fbr Declualory Order at p. 13, (Herein "ldaho Power's Petition.")
Franklin Energy Storage Pro.jects'
Petition tbr Reconsideration
IPC]-E- t 7-01
2
Case 1:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 20 ol28
Order No. 32697 at p. 3. l:mphasis provided.
-l'his commission is conlident that. with other changes to the avoided cost methodologies
incorporated in the Order. changing eligibility fnrm l0 aMW fbr resources other than
wind and solar is unnecessary at this tirne. We find that a l0 aMW eligibility cap tbr
access to published avoided cost rate.s lbr resources other than wirylaod splgl is
appropriatc to continue to encourage renewable development while maintaining ratepayer
indifference. Maintaining a l0 aMW eligibility cap is also consistent with our long
history of encouraging PURPA projects and renewable energy generation in ldaho.
Id. at p. 14. Emphasis provided
We maintain the eligibility cap at l0 aMW for QF projects other than wind and solar
(including hut nut lirnitcd te biomass. small hydro. cogeneration. geothermal, and waste-
to-energy).
Order No. 32176 at p. 9. trmphasis provided
'['hus, in order to maintain its PTJRPA implementation scheme and at the same time grant
Idaho Power's Petition, the ldaho Clommission would have to make a tinding. either explicitly or
implicitly, that energy storage QF tacilities that use solar power as a prirnary energy input are, in
[hct, Solar QFs and not energy storage QFs. Its final Order in this matter the ldaho Commission
does exactly that. It concluded that:
Accordingly, we tind it appropriate to base Franklin's and Black Mesa's eligibility under
PTJRPA on its primary energy source - solar. Solar resources larger than 100 kW arc
entitled to negotiate two-year PtrRPn contracts . . . Franklin's argument that this
Contmission's prior decisions clearly and unequivocally allow it entitlement to published
rates ignores FFIRC's pronouncement that energy storage facilities are not per se
renewable resources/smal I power production lacilities under PLJItPA.r
l{owever, as shown below. the ldaho Commission has no authority to nrake such a ruling as it is
preempted by PTJRPA tiom making any determinations as to the Ql status o1'an energy storage
I Order No. 3-l7tt5 at p. lr2.
Franklin Energy Storage Projects'
Petition fbr Reconsideration
IPC-ri- l7-01
3
Case 1:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 2l of 28
iacility. ln addition to heing precluded liom making any determination as to QI; status, the ldaho
Commissitrn's ostensible implcmcntation of'FERCI's ordcrs regarding the Qlrstatus of energy
storage tacilities is fatally flawed and it highlights the impracticability ol'allowing individual
state conlmissions t<l re-write f'ederal law at the request of the utilities they are charged with
regulating,
il.
T'HE COMMISSION I t,LEGAI,I,Y
RIJLED AS't'() T't.tE QF SI'A-t-trS OF ENERGY S]'ORAGE tACILTT'[US
The Idaho Commissiort appropriately conceded that "battery storage facilities' QF status
is a matter within F'tlR(l's.iurisdiction"a ldaho Power makes the same concession, "Qt; status is
within the exclusive jurisdiction and properly betbre IrERC, not this C]ommission. fbr
determination"i While conceding FtiRC jurisdiction ovcr QF status determinations, the
Conrmission did not cite to nor reference legal authority to that etfecl. The Ninth Circuit Court
of Appeals, however, has instructed:
'fhe C'omrnission's IFl.iRCl regulations carry out the statutory regirne reposing in the
Comrnission [FERCI exclusive authority to make QF status determinations. . . .
Nowhere do thesc regulations contemplate a role tbr the state in setting QF standards or
determining QF status.6
t lrl. atp.ll.
s ldaho Power l'etilion.fbr Declurulory Orcler at p. 6.
6 Indeperu,lcnt Encrgv Pxttluc'ers.4ss'nv. ()ulilbrniu I'ub. (/tils. Comm'n361;.3d 848,853
( ree4)
Franklin [:nergy Storage Pro.iects'
Petition for Reconsideration
IPC-E- r7-01
4
Case 1-:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 22 ot 28
Despite conceding to IjERC its primacy as to the determination ol'Q]r status, the ldaho
Cornmission's Order actually goes down that road when it makes its finding that the ljranklin
b,nergy Storage QFs are not energy storage Q[;s:
Consequently, our ruling on the narrow declaratory issue befbre us should not be read to
prcsume that this Commission deems battery storage facilities to be a legitinrate
qualitying lacility eligible lbr the benefits oIPURPA and subiect to the Act's
inrplementing regulations under I"t'lRC.7
'l-he C'ommission's relusal to "presunre" that energy storage f'acilities are "a legitinrate qualifying
lacility" directly challenges FERCI's role as the only entity that is legally authorized to make
such firrdings (or in the vernacular of the ldaho PUC, such 'presumptions').
The ldaho Conrnrission is explicitly preempted lrom nraking any findings (or
presumptions) as to the QF stalus ol'the Franklin Energy Storage Facilities as that determination
is exclusively F'tiRC's to make. Again. according to the Ninth Circuit ('ourt of Appeals:
What the state may not do. however, is to intrucle into the Commissitrn's [FliRC'sl
exclusive jurisdiction to make QF status determinations by denying to certified QFs the
tull avoided cost rates to which they are entitled.s
As noted above, according to thc ldaho Commission's own PtIRPA implementation schenre, all
QFs other than wind and solar QFs are entitled to twenty-year contracts and published avoided
cost rates. Whal the ldaho Commission has done in its final Order is simply to deny. "to
certi[red QFs the t'ull avoided cost rates to which they are entitlecl." -[he ldaho Commission
must lake at thce value the certified energy storage QF status of the F'ranklin energy storage
facilities. It there lore may not deny these QFs their entitlement to full avoided cost rates that it
1 Oruler Mr. 33785 at pp. l0 - ll.
E lndepenclent lincrp' ['roclucers, supra at p. 859
F'ranklin finergy Storage Pro.iects'
Petition tbr Reconsideration
tPC-E-t7-01
5
Case 1:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 23 ot 28
has specifically nrade available to all QF's other than wind and solar Qlis. lt simply has no lcgal
basis to do otherwise.
It is undisputed that the Franklin pro.iects are certifled energy storage small power
production tacilities.e tt is also undisputed that the ldaho Comnrission affords all QFs (except
flor solar QFs and Wind QFs) the right to insist on twenty-year contracts at fixed avoided cost
rates - which is what the Franklin energy storage QF's have requested. In order fbr the [daho
Commission to deny the Franklin energy storage QI;s their right to twenty-year t'ixed rate
contracts the Idaho Commission had to "intrude" on l'ERC's "exclusive jurisdiction to make QF'
status determinations." According to the Idaho Comrnission. an energy storage QF is not an
energy storage Qt. Rather, according to the ldaho Commission, an energy storage tacility's
primary source of energy is the QF and not the storage facility itselti
Moreover, the energy generation output proliles lbr the battery storage lacilities are a
direct reflection of the solar generation that operates as the primary energy source for the
battery storage tacilities. [citation omitted] . . . Accordingly, we find it appropriate to
base Franklin's and tllack Mesa's eligibility under PLJRPA on its primary energy source -
- solar,l0
The Franklin energy storage QFs, however, are self-certified energy storage QFs. I'hey are not
selt'-certified solar QF's. l.ine 6a from l't,RC Form 556 for each of the F'ranklin energy storage
QFs provides:
The energy storage (battery) system will take its input tiom 100%o renewable energy
sources such as wind, solar. biogas. biomass. etc. '[he system is designed with flexibility
to most etlciently utilize the resources available at the site. at thc present time as well as
in the t'uture.ll
') Sec ['HRC Docket Nos. QIr I 7-581 - 584.
lo Order No. 33785 atp.12.
rr ,S'ec l.ine 6a (cxplained at p. l9) t"F:R(' [rorm 556 in FEITC Docket Nos. QIr-17-851 * 854
Franklin Energy Storage Proiects'
Petition lor Reconsideration
IPC-[r-17-01
6
Case 1:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 24 ot 28
Because the ldaho Ctxrnrission has no jurisdiction to ad.iudicate the l]ranklin energy storage
facilities' "eligibility under PLTRPA," the (lommission's decision is unlawful as it is not irt
confbrnrity with tbderal law granting to FERC the exclusive jurisdiction to determine a QF's
"eligibility under PLJRPA,"
In sum, having determined, illegally, that the Franklin energy storage QFs are not eligible
energy storage PTJRPA resources, thc ldaho Commission then made the determination (also
illegally) that they are actually solar QFs. According to the [daho Commission, because solar
Q[;s are not entitled to established ldaho C]ommission rates and contract terms that are available
fbr non-solar and non-wind QFs, Idaho Power's Petition fbr Declaratory Rule must be granted.
However, the ldaho Commission has no authority to make such detcrminations - it therefore
should deny Idaho Power's Petition in its order on reconsideration.
III
THF, !DAHO COMMISSTON'S ANAI,YSIS, IN ADDI]-ION
l'O BEING ILI",ECAI-. lS SERIOT,SLY Ft.AWtrt)
Not deterred by lederal preernption of its refusal to 'presume'that energy storage QFs are
legitimate QFs in theirown right, but only QIrs based on the source ol'the energy input to a
storage tacility, the ldaho Commission attempted to reconcile its analysis with trERCl precedent
dealing with storage lacility QFs:
Accordingly, we find it appropriate to base Franklin's and Black Mesa's eligibility under
Pl.lRPA on its primary energy source - solar, Solar resources larger than 100 kW are
entitled to negotiate two-year PLJRPA contracts through the use of ldaho Power's lltP
methodology. Franklin's argument that this Conrnrission's prior decisions clearly and
unequivocally allow it entitlernent to published rates ignores I'[]RC's pronouncement that
Franklin [inergy Storage Projects'
Petition for Reconsideration
IPC-E- 17-01
7
Case L:L8-cv-00236-REB Document 29-2 Filed 09/05/18 Page 25 ot 28
cnergy storagc fhcilities arc not per se rencwable resources/small power production
tbcil ities urrder Pt JRPA. r1
Ol'course, it is axiomatic that there is no suoh thing as "per se renewable resourcesisrnall power
production lacilities under PURPA." tly definition, all QFs must, to varying degrees, meet
specitic standards in order to achieve QF status. 'Ihose standards include specilic requirments as
to luel efficiency restrictions, fbssil f'uel use restrictions, ownership limitations, and size
limitations. No resource is privileged enough to claim to be a pet se QF under PLJRPA and the
F'ranklin energy storage thcilities made no such claim - which highlights significant confusion in
the ldaho Commission's order.
Perhaps thc ldaho Contmission's confusion stems tiom its lurrdamental rnisreading of
F'ERC's Lae decision.13 [n luz IiF.RC determined that an energy storage QF must, like allother
small power production QFs, comply with the fuel use standards under PURPA.T{ Because the
[,uz energy storage pro.iect was being energized with undit]erentiated electricity purchased fiom
the'grid' it was urrable to show that its use of fossil luels was in compliance with FF,RC fossil
luel use restrictions. Flence I;ERC declared that although energy storage fhcilities are distinct
Ql.s they:
Are subject to the same firel use lirlitations as all other snrall power productiorr tacilities,
Irossil tirel used to produce elcctric energy which is utilized to initiate the storage process.
whether it comes t'rom a utility grid or on-site generating lhcilities must be counted in
determining the total energy input of such a t'acility. Since the Applicant has not
dentonstrated that the utiliz.ation of electrical input liom the grid in this instance will not
result in a violation of the lossil fuel input limitation. we musl deny the application.ls
r2 Order No. 33785 at p. I l.tt l,trz l)cvelopment uncl Finunce ('orporulion 5l FtjRC fl61,078.la Fossil fuel use is limited lilr small power production tacilities to only those minimum amounts
requirecl ttrr ''ignition, startup, testing, tlame stabiliz.ation and control uses.. ." Id. at p, 6.
ts Id.
Irranklin t)nergy Storage l)ro.iects'
Petition for Reconsideration
rPC-E- t 7-0 tI
Case l-:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 26 ot 28
'['he ldaho Cornmission applopriately obscrved that, according lo FIT.RC's [,uz dccision that:
l'[iRC confirrned that energy storage facilities are nol renewablc resources/srnall power
production Iacilities per sc. /r/. tilectric input is requiretl to producc electric output liom
a storage l'acility,l6 For this reason, in order to quality as a l)tJRl)A resource. the
prirnary energy source behind the battery storage ntust be considered,
Signilicantly, FF,RC did not rule that elcctric inpul to an energy storage QF is prohibited. Nor
did it rule that such electric input casts acloud as to the distinct QIr status ol'suoh a lacility.
Rather. FFIR(I looks to the primary energy source behind the energy storage system to determine
if the energy storage system meets the lucl usc critcria of a Qualifying lracility. Critically
overlooked by the ldaho Commission is the thct that FERC does NOTconsider the ''primary
energy source behind the hattery" to be the QF. F'tlRC only looks at the prinrary energy source
behind the energy storagte system to conflmr that the energy storage system is, itselt', a QIr, 'fhis
is because tjt;l(C unequivocally and explicitly ruled that energy storage facilities are, despite the
ldaho Commission's conclusion. QFs in their own right:
In sum, glt!:!'g) stqf4gs tegllities such aS- lhq UgJte_qgd.l.uz bgt!!'I! sl5tqm are a rc1un31[rlq
rgsourcc firrgurposesgfQ!'certilication. ['{owever, such taoilities are subject to the
requirement that the energy input to the facility is itself biomass, waste, arenewable
resource, a geothermal resource or any combination thereot.ll
[[ere, of course. the Franklin energy storage tacilities are also a renewable resource fbr purposes
of QF cefiit'ication. The significant diffcrence bctwcen the Franklin encrgy storage tacilities and
the energy storage tacilities at issue in l.uz is that the Franklin energy storage facilities havc. in
fact. demonstrated their compliance with F'tiRC's energy input requirements by using rro'grid
l6 Ot'course, It)R(l nrade no such tlnding regardingenergy storage tacilities, not all ol'which
require electrical input,
t7 Luz supra at p. 10.
Franklin [rnergy Storage Pro.iccts'
Petition fbr Reconsideration
IPC-t1-17-01
9
Case 1-:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 27 ot 28
powcr and no tbssil firel input. I.lowever, because the ldaho Commission is boun<l by thc
certified status ol'the F'ranklin energy storage QF's. it is beyond the jurisdictional reach of the
ldaho Commission to even nrake such an inquiry, As the Ninth Circuit Court ol'Appeals
instructed:
The state's authority to implement section 210 IPIJRPAI is admittedly broad, but nothing
in the language of this section indicates that such authority includes the authority to rnake
QF determinations.lE
Idaho Power's Petition for Declaratory Order asked the [daho (lommission to do.iust that. And
the [daho Commission obliged Idaho Power by illegally finding that energy storage facilities that
use solar power to charge the underlying storage devices are not energy storage QFs, but are
instead solar QF's. This distinction is, ol'course. convenient to ldaho Power in that such a
determination allows ldaho Power to avoid its Idaho Clomnrission imposed obligation to non-
solar and non-wind QFs to olfer twenty-year contracts at fixed rates.
IV
PRAYI"iR FOR Rtlt.lEI'
For the reasons stated above, and pursuant to the Idaho Cornrnission's statutory
obligation to correct legaland tbctual errors in its final orders. the f ranklin Irnergy Storage
Projects respectfully request the Commission issuc its order on reconsideration reversing its linal
order in this matter and denying ldaho Power's petition lor declaratory reliet.
WHEREFORE, the Franklin Energy Storage Projects respecttirlly request this
Commission issue its order on reconsideration as prayed lor above.
t8 lndependent Energt Proclucers A.rs'n, supra at p. 856
Franklin Energy Storage Projects'
Petition fbr Recons ideration
IPC-E- I 7-01
l0
Case 1-:18-cv-00236-REB Document 29-2 Filed 09/05/18 Page 28 oI28
(,
RESPECTFULLY SUBMITTED this 5 of Au;ust 2017.
?,4ruu---l)ctcr J. Rit'hartlson, ISB # 3 195
Attorney for Franktin Energy Storage Projects
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 3'd day of August 2017, served the foregoing Petition for
Reconsideration in Docket No. IPC-E-17-01 upon all parties of record in this proceeding by
emailing a copy thereof and delivering a copy thereof in person:
Donovan Walker
Idaho Power Company
l22l West ldaho Street
Boise, Idaho
d rt a I kcr rr, itlahopttw'cr. cont
drrckctsr giidahonrwcr.curtt
Daphne Haung
Idaho Public Utilities Commission
472 West Washington Sreet
Boise,ldaho
daphttc.huunu rr.rpuc. itlillto. sol
Commission Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho
l)ianc. holt rr,puc,idaho.pl
By emailing a copy thereofi
Brian Lynch
Black Mesa Energy LLC
brian, rt, mcz.z.dcl . ctrnr
David Bender
Earthjustice
dbcnderraicarth i usticc.orB
Ben Otto
Idaho Conservation League
butto g ; itlaltt,r,-onser r al' tl tt,,l rg
It
Franklin Energy Storage Projects'
Petition for Reconsideration
IPC-E- l7-01
l1