20180703IPC Motion to Intervene.pdf

Case 1:18-cv-00236-REB Document 7 Filed 07/03/18 page L of L7
Steven B. Andersen (ISB 2618)
sba@g€wblaw.com
Wade L. Woodard (ISB 6312)
wlw(daswblnv.cont
ANDERSEN SCHWARTZMAN
wooDARD BRAILSFORD, PLLC
101 South Capitol Boulevard, Suite 1600
Boise,ID 83702-7720
Telephone: 208.342.441 I
Facsimile: 208.3 42.445 5
Att orneys for Defendant-Intervenor ldaho P ow er
Company
FRANKLIN ENERGY STORAGE ONE,
LLC, FRANKLIN ENERGY STORAGE
TWO, LLC, FRANKLIN ENERGY
STORAGE THREE, LLC, FRANKLIN
ENERGY STORAGE FOUR, LLC,
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No.: 1 :l 8-cv-00236-REB
DET'ENDANT-INTERVENOR IDAHO
POWER COMPATIY'S MOTION TO
INTERVENE
Plaintiffs,
vs.
PAUL KJELLANDER, KRISTINE RAPER
and ERIC ANDERSON, in their official
capacity as Commissioners of the IDAHO
PUBLIC UTILITIES COMMISSION,
Defendants,
and,
IDAHO POWER COMPANY,
Defendant-Intervenor.
COMES NOW Defendant-Intervenor Idatro Power Company ("Idaho Power"), by and
through its counsel of record, Andersen Schwartzman Woodard Brailsford, PLLC, and hereby
DEFENDANT.INTERVENOR IDAHO POWER COMPANY'S MOTION TO INTERVENE. 1
Case 1:18-cv-00236-REB Document 7 Filed 07/03/18 page Z of L7
respectfully moves this Court, pursuant to Federal Rule of Civil Procedure 24, for an order
allowing it to intervene in the above-captioned matter.
The grounds for this motion are that Idaho Power has a direct interest in the outcome of
this proceeding that cannot be adequately represented by any other party. Specifically, the
administrative orders at issue in this matter address and make findings upon four applications that
Plaintiffs submitted to Idaho Power seeking Energy Sales Agreements from it under the Public
Utility Regulatory Policies Act of 1978 ("PURPA"). As the public utility that Plaintiffs seek to
obligate to purchase their output pursuant to PURPA, Idaho Power has a direct interest in this
proceeding, including its outcome. Additionally, because the applications and administrative
orders at issue were directed to and/or initiated by Idaho Power, Idaho Power has information
pertinent to this Court's analysis of the issues. Thus, as further outlined in Idaho Power's
accompanying memorandum in support, Idaho Power satisfies the requirements of Federal Rule
of Civil Procedure 2a@)Q) for intervention as of right. In the alternative, Idaho Power satisfies
the requirements of Federal Rule of Civil Procedure 24(bxlXB) for permissive intervention.
This motion is based upon the Memorandum in Support, the Declaration of Donovan E.
Walker and the exhibits attached thereto, all of which are filed contemporaneously herewith, as
well as upon all other pleadings, papers and records filed herein and such other and further
evidence and argument that is made at the time of the hearing on this motion. In addition, as
required by Federal Rule of Civil Procedure 24(c), attached as Exhibit A to this motion is Idaho
Power's Proposed Answer in Intervention to Plaintiffs' operative First Amended Complaint.
DEFENDANT.INTERVENOR IDAHO POWER COMPANY'S MOTION TO INTERVENE- 2
Case 1:18-cv-00236-REB Document 7 Filed 07/03/18 Page 3 of 17
DATED this 3rd day of July,2018.
ANDERSEN SCHWARTZMAN
WOODARD BRAILSFORD, PLLC
lsl Steven B. .{nder.sen
Steven B. Andersen
Attorneys for Defendant-Intentenor ldaho Power Company
DEFENDANT-INTERVENOR IDAHO POWER COMPANY'S MOTION TO INTERVENE.3
Case 1:18-cv-00236-REB Document 7 Filed 07/03/18 Page 4 of 17
CERTIFICATE OF SERVICE
I hereby certiff that on this 3rd day of July,20l8,I caused a true and correct copy of the
foregoing document to be electronically filed with the Clerk of the Court using the CM/ECF
system, which sent a Notice of Electronic Filing to the following persons:
Peter J. Richardson
Robert C. Huntley
Brandon Karpen
ScottZanzig
[e-mail]
[e-mail]
brandon.karpen@l''uc.idaho. gov
scott.zanzi [e-mail]. gov
lsl Steven B.
Steven B. Andersen
DEFENDANT.INTERVENOR IDAHO POWER COMPANY'S MOTION TO TNTERVENE- 4
case 1:18-cv-00236-REB Document 7 Filed 07/0311g page 6 at L7
Steven B. Andersen QSB 2618\
[e-mail]
Wade L. Woodard 0SB 6312)
wlw(dnswblov,.com
ANDERSEN SCTTWARTZMAN
wooDARD BRAILSFORT), PLLC
l0l South Capitol Boulevard, Suite 1600
Boise,ID 83702-7720
Telephone: 208.342.441 |
Facsimile: 208.342.4455
Attorneys for Defendant-lntervenor ldaho Power
Company
FRANKLIN ENERGY STORAGE ONE,
LLC, FRANKLIN ENERGY STORAGE
TWO, LLC, FRANKLIN ENERGY
STORAGE THREE, LLC, FRANKLIN
ENERGY STORAGE FOUR, LLC,
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No.: I : 18-cv-00236-REB
IDAHO POWER COMPANY'S
PROPOSED ANSWER IN
INTERVENTION TO PLAINTIFFS'
FIRST AMENDED COMPLAINT
and,
Plaintiffs,
vs.
PAUL KJELLANDER, KRISTINE RAPER
and ERIC ANDERSON, in their official
capacity as Commissioners of the IDAHO
PUBLIC UTILITIES COMMISSION,
Defendants,
IDAHO POWER COMPANY,
Defendant-Intervenor
Defendant-Intervenor Idaho Power Company ("Idaho Power"), by and through its counsel
of record, Andersen Schwartzman Woodard Brailsford, PLLC, hereby answers Plaintiffs' First
Amended Complaint as follows:
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT. 1
Case 1:18-cv-00236-REB Document 7 Filed 07/03/18 Page 5 of 17
E f.f ITA
Case 1-:18-cv-00236-REB Document 7 Filed 07/03/1-8 Page 7 ot L7
GENERAL DEMAL
Except as specifically admitted below, Idaho Power denies each and every allegation,
averment, claim and prayer for relief contained in Plaintiffs' First Amended Complaint. No
statement herein constitutes a comment on the legal theories upon which Plaintiffs purport to
proceed, To the extent the First Amended Complaint asserts legal contentions, such legal
contentions require no response in this Answer. To the extent any response is required to headings
or other unnumbered paragraphs in the First Amended Complaint, Idaho Power denies the
allegations, if any, contained in such headings or other unnumbered paragraphs.
sPE cr Frc Ai\sw,E-,,,.R$, AND pENTAL s
Subject to the foregoing general denial, Idaho Power answers the First Amended
Complaint's allegations as follows:
l. The allegations in paragraph I state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph l.
2. The allegations in paragraph 2 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph2.
3. Idaho Power admits the allegations in paragraph 3.
4. The allegations in paragraph 4 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 3.
5. Idaho Power admits that the acts and practices that form the basis for the violations
alleged in Plaintiffs' First Amended Complaint occuned in this district and that the named
Defendants, in their capacity as the Commissioners of the Idaho Public Utilities Commission
("IPUC"), are located in this district. The remaining allegations in paragraph 5 state legal
conclusions to which no response is required.
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT . 2
Case 1:18-cv-00236-REB Document 7 Filed 07/03/l-8 Page 8 of 17
6. Idaho Power admits that, through their First Amended Complaint, Plaintiffs seek
injunctive and other relief against the named Defendants, but denies that such relief is warranted
or appropriate. The remaining allegations in paragraph 6 state legal conclusions to which no
response is required.
7. The allegations in parugraph 7 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph7.
8. Idaho Power admits that the IPUC has established different terms and conditions
applicable to Qualiffing Facilities ("QFs") under the Public Utilities Regulatory Policies Act of
1978 (*PURPA"). The remaining allegations in paragraph 8 state legal conclusions to which no
response is required.
9. Idaho Power admits that Plaintiffs propose to sell the output from their proposed
facilities pursuant to PURPA as self-certified QFs. The remaining allegations in paragraph 9 state
legal conclusions to which no response is required.
10. Idaho Power admits that, in response to Plaintiffs' proposal, it filed a Petition for
Declaratory Order with the IPUC, in which it sought a declaratory order determining eligibility for
avoided cost pricing and contractual terms and conditions available to difflerent types of PURPA
QFs, under the facts presented and without prejudice to Idaho Power's position on the validity of
Plaintiffs' self-certifications on the QF status of its proposed facilities. Idaho Power denies the
remaining allegations in paragraph 10.
11. Idaho Power lacks knowledge or information sufficient to form a belief about the
allegations in paragraph 11 and, on that basis, denies these allegations.
12. Idaho Power admits that the IPUC granted Idaho Power's Petition for Declaratory
Order and held that Plaintiffs' proposed battery storage facilities, which had design capacities that
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT . 3
Case 1:LB-cv-00236-REB Document 7 Filed 07/03/18 Page 9 af L7
will exceed 100 kW each and solar as their primary energy source, are eligible for two-year,
negotiated (IRP methodology) contacts. The IPUC issued Order Nos. 33785 and 33858 which
speak for themselves. Idaho Power denies the remaining allegations in paragraph 12.
13. Idaho Power denies the allegations in paragraph 13.
14. Idaho Power lacks knowledge or information sufficient to form a belief about the
allegations in paragraph 14 and, on that basis, denies these allegations.
15. Idaho Power admits that Plaintiff Franklin Energy Storage One, LLC is an Idaho
limited liability company and that it has filed a FERC Form 556 self-certification of QF status with
FERC. The remaining allegations in paragraph 15 state legal conclusions to which no response is
required.
16. Idaho Power admits that Plaintiff Franklin Energy Storage Two, LLC is an Idaho
limited liability company and that it has filed a FERC Form 556 self-certification of QF status with
FERC. The remaining allegations in paragraph l6 state legal conclusions to which no response is
required.
17. Idaho Power admits that PlaintiffFranklin Energy Storage Three, LLC is an Idaho
limited liability company and that it has filed a FERC Form 556 self-certification of QF status with
FERC. The remaining allegations in paragraphlT state legal conclusions to which no response is
required.
18. Idaho Power admits that PlaintiffFranklin Energy Storage Four, LLC is an Idaho
limited liability company and that it has filed a FERC Form 556 self-certification of QF status with
FERC. The remaining allegations in paragraph 18 state legal conclusions to which no response is
required.
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT - 4
Case 1:1-8-cv-00236-REB Document 7 Filed 07l13lLB Page LO ot L7
19. Idaho Power lacks knowledge or information sufficient to form a belief about the
allegations in paragraph 19 and, on that basis, denies these allegations.
2A. Idaho Power admits that the named Defendants are the current Commissioners of
the IPUC, and that the IPUC has authority to carry out certain functions under PURPA as set out
in 16 U.S.C. $ 824a-3, 18 C.F.R. Part292, decisions of the IPUC, and relevant federal courts.
Idaho Power denies the remaining allegations in paragraph20.
21. Idaho Power admits that Plaintiffs' First Amended Complaint alleges violations of
the Federal Power Act, PURPA and FERC's regulations implementing PURPA, but denies that
any such violations occurred.
22. The allegations in paragraph 22 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph22.
23. The allegations in paragraph 23 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph23.
24. The allegations in paragraph 24 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph24.
25. The allegations in paragraph 25 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph2l.
26. Idaho Power admits that Plaintifls filed FERC Form 556 self-certifications of QF
status with FERC. Idaho Power lacks knowledge or information sufficient to form a belief about
the remaining allegations in paragraph26 and, on that basis, denies these allegations.
27. Idaho Power denies the allegations in paragraphT7.
28. Idaho Power denies the allegations in paragraph 28.
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTTON TO
PLAINTIFFS' FIRST AMENDED COMPLAINT . 5
Case 1:1-8-cv-00236-REB Document 7 Flled 07l)3lLB Page tlot L7
29. Idaho Power admits that, on December 14,2017, Plaintiffs petitioned FERC to find
Defendants in violation of PURPA and FERC's regulations and asked FERC to bring an
enforcement action against the IPUC to correct the alleged violations. The remaining allegations
in paragraph 29 state legal conclusions to which no response is required.
30. Idaho Power admits that FERC issued aNotice of Intent Not to Act with respect to
Plaintiffs' Petition.
31. Idaho Power admits the allegations in paragraph 31.
32. The allegations in paragraph 32 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of ParagraphS2.
33. Idaho Power admits that Plaintiffs' First Amended Complaint alleges violations of
the Federal Power Act, PURPA and FERC's regulations implementing PURPA, but denies that
any violations of the same have occurred.
34. The allegations in paragraph 34 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph3{.
35. The allegations in paragraph 35 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 35.
36. The allegations in paragraph 36 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 36.
37. The allegations in paragraph 37 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph37.
38. The allegations in paragraph 38 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 38.
IDAHO POWER COMPANY'S PROPOSED A}ISWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT - 6
Case 1:18-cv-00236-REB Document 7 Filed 07/03/18 Page LZ of L7
39. The allegations in paragraph 39 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 39.
40. The allegations in paragraph 40 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 40.
41. The allegations in paragraph 4l state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 41.
42. The allegations in paragraph 42 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 42.
43. The allegations in paragraph 43 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 43.
44. The allegations in paragraph 44 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph44.
45. Idaho Power admits that it is a public utility subject to regulation by the IPUC and
that Plaintiffs seek to sell the power and energy from their proposed battery storage facilities to
Idaho Power. The remaining allegations in paragraph 45 state legal conclusions to which no
response is required.
46. The allegations in paragraph 46 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph46.
47. The allegations in paragraph 47 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph4T.
48. The allegations in paragraph 48 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 48.
IDAHO POWER COMPANY'S PROPOSED ANSWER TN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT. 7
Case 1:18-cv-00236-REB Document 7 Filed 07/03/1-8 Page L3 ot 17
49. The allegations in paragraph 49 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 49.
50. Idaho Power admits that Plaintiffs have attempted to self-certiff their fourproposed
battery storage facilities as QFs under FERC. The remaining allegations in paragraph 50 state
legal conclusions to which no response is required.
51. Idaho Power admits the each of Plaintiffs' four battery storage facilities are
similarly described in paragraph 7h of their respective Notices of Self Certification (FERC Form
556) but denies that the language contained in paragraph 5 1 is a verbatim quote from paragraph
7h of Plaintiffs' respective Notices of Self Certification.
52. The allegations in paragraph 52 state legal conclusions to which no response is
required. To the extent an answer is required, tdaho Power denies the allegations of Paragraph 52.
53. Idaho Power admits that, to date, no party, including Plaintiffs, the IPUC, the
named Defendants or Idaho Power challenged the QF status of Plaintiffs' four proposed battery
storage facilities before the IPUC or FERC. Idaho Power denies the remaining allegations in
paragraph 53.
54. The allegations in paragraph 54 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 54.
55. The allegations in paragraph 55 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 55.
56. Idaho Power admits that the IPUC granted Idaho Power's Petition for Declaratory
Order and held, "that, as storage facilities with design capacities that will exceed 100 kW each and
with solar as their primary energy source, the projects are eligible for two-year, negotiated (IRP
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT - 8
Case 1-:18-cv-00236-REB Document 7 Filed 07l)3lt9 Page L4 ot L7
methodology) contracts." IPUC Order No. 33785, p. 12-13. Idaho Power denies the remaining
allegations in paragraph 56.
57. Idaho Power admits that the IPUC granted Idaho Power's Petition for Declaratory
Order and held, "that, as storage facilities with design capacities that will exceed 100 kW each and
with solar as their primary energy source, the projects are eligible for two-year, negotiated (IRP
methodology) contracts." IPUC Order No. 33785, p. 12-13. Idaho Power denies the remaining
allegations in paragraph 57.
58. The allegations in paragraph 58 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of Paragraph 58.
59. Although Idaho Power is not required to admit or deny the prayer for relief
contained in Plaintiffs' First Amended Complaint, Idaho Power denies that Plaintiffs are entitled
to any relief.
AFTIRMATIYE DEFENSES
l. Plaintiffs' First Amended Complaint, and every claim asserted therein, fails to state
a claim upon which relief may be granted.
2. Plaintiffs have failed to properly exhaust their administrative remedies with regard
to some or all of the claims asserted in their First Amended Complaint for which exhaustion is
required under applicable law.
3. Plaintiffs' First Amended Complaint, and every claim asserted therein, is baned by
the applicable statute of limitations.
4. This Court lacks jurisdiction over Plaintiffs' First Amended Complaint and every
claim asserted therein.
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT . 9
Case 1:18-cv-00236-REB Document 7 Filed A7103118 Page L5 ot t7
5. Plaintiffs' claims ate 'oas-applied" claims under PURPA subject to the exclusive
jurisdiction of the State of ldaho, as opposed to "as-implemented" claims under PURPA subject
to this Court's jurisdiction. As a result this Court lacks subject matter jurisdiction over Plaintiff s
claims.
6. Plaintiffs are not Qualiffing Facilities under PURPA and/or FERC's regulations.
7. Plaintiffs' First Amended Complaint, and every claim asserted therein, is barred as
an impermissibly late collateral attack on the final action of a state agency.
8. Plaintiffs' claims are barred by the doctrines of waiver, estoppel, laches,
ratification, acquiescence and/or unclean hands.
9. Plaintiffs' First Amended Complaint, and every claim asserted therein, is barred by
the doctrine ofresjudicata and/or collateral estoppel.
REOUEST FOR ATTORNEYS' FEES
Idaho Power requests that it be awarded its costs and attorneys' fees incurred in defending
this action pursuant to applicable federal and state laws and rules, including but not limited to,
Idaho Code $$ 72-117, 12-120 and 12-121, and Rules 54 and 58 of the Federal Rules of Civil
Procedure.
PRAYER FOR RELIEF
WHEREFORE, having fully responded to the allegations of the First Amended Complaint,
Idaho Power respectfully requests that judgment be entered in its favor and against Plaintiffs, that
all claims be dismissed with prejudice and that Idaho Power be awarded all costs and attorneys'
fees to the extent provided for by law, as well as such other and further relief as this Court may
deem just and proper.
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT. 10
Case 1-:l-8-cv-00236-REB Document 7 Filed 071031L8 Page t6 ol !7
DATED this 3rd day of July,2018.
ANDERSEN SCHWARTZMAN
WOODARD BRAILSFORD, PLLC
lsl Steven B.
Steven B. Andersen
Attorneys for Defendant-Intervenor ldaha Power Company
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT . 1I
Case 1:18-cv-00236-REB Document 7 Filed 07103118 Page 17 ot L7
CERTIF'ICATE OF SERVICE
I hereby certify that on this 3rd day of July,2018, I caused a true and correct copy of the
foregoing document to be electronically filed with the Clerk of the Court using the CMIECF
system, which sent a Notice of Electronic Filing to the following persons:
Peter J. Richardson
Robert C. Huntley
Brandon Karpen
ScottZanzig
peler@richardsonadams. com
rhuntely@huntleylaw. com
[e-mail]. eov
scott.zan4i g@ee. idaho. gov
/s/ Steven B.
Steven B. Andersen
IDAHO POWER COMPANY'S PROPOSED ANSWER IN INTERVENTION TO
PLAINTIFFS' FIRST AMENDED COMPLAINT . 12