20181009Answer.pdf

Case 1:18-cv-00236-REB Document 35 Filed 10/09/L8 Page L of L2
Steven B. Andersen (ISB 2618)
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Wade L. Woodard (ISB 6312)
u' I vt' (a,u s v' b I u v'. c t t trr
AI\DERSEN SCHWARTZMAN
wooDARD BRAILSFORD, PLLC
101 South Capitol Boulevard, Suite 1600
Boise, lD 83702-7720
Telephone: 208.342.441 I
Facsimile: 208.342.4455
Attorneys for Defendant-Intervenor ldaho Power
Company
FRANKLIN ENERGY STORAGE ONE,
LLC, FRANKLIN ENERGY STORAGE
TWO, LLC, FRANKLIN ENERGY
STORAGE THREE, LLC, FRANKLIN
ENERGY STORAGE FOUR, LLC,
ldaho Pu.blic Utilities Commission
Office of the Sec
B E c E,r.tSt"v
ocr 0 9 20t8
Boise,ldaho
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No.: I : 18-cv-00236-REB
IDAHO POWER COMPANY'S ANSWER
IN INTERVENTION TO PLAINTIFFS'
FIRST AMENDED COMPLAINT
Plaintiffs,
vs.
PAUL zuELLANDER, KRISTINE RAPER
and ERIC ANDERSON, in their official
capacity as Commissioners of the IDAHO
PUBLIC UTILITIES COMMISSION,
Defendants,
ffid,
IDAHO POWER COMPANY,
Defendant- Intervenor,
Defendant-lntervenor 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 ANSWER IN TNTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 1
Case 1:18-cv-00236-REB Document 35 Filed 10/09/1-8 Page 2 of L2
GENERAL DENIAL
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, ldaho Power denies the
allegations, if any, contained in such headings or other unnumbered paragraphs.
SPECIFIC AI\SWERS AI\D DENIALS
Subject to the foregoing general denial, Idaho Power answers the First Amended
Complaint's allegations as follows:
1. The allegations in paragraph I state legal conclusions to which no response is
required. To the extent an answer is required, tdaho 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 ParagraphZ.
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 occurred 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 ANSWER IN INTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLATNT - 2
Case 1:18-cv-00236-REB Document 35 Filed 10/09/1-8 Page 3 ot L2
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 paragraph 7 state legal conclusions to which no response is
required. To the extent an answer is required, Idaho Power denies the allegations of ParagtaphT.
8. Idaho Power admits that the IPUC has established different terms and conditions
applicable to Qualifuing 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 different tlpes 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 I I 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 ANSWER TN INTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 3
Case L:18-cv-00236-REB Document 35 Filed 10/09/18 Page 4 ot L2
will exceed 100 kW each and solar as their primary energy source, are eligible for two-year,
negotiated (IRP methodology) contracts. The IPUC issued Order Nos. 33785 and 33858 which
speak for themselves. Idaho Power denies the remaining allegations in paragraph 12.
13. ldaho 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 PlaintiffFranklin 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. ldaho Power admits that Plaintiff Franklin Energy Storage Two, LLC is an ldaho
limited liability company and that it has filed a FERC Form 556 self-certification of QF status with
FERC. The remaining allegations in paragraph 16 state legal conclusions to which no response is
required.
17. Idaho Power admits that Plaintiff Franklin 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 paragraph 17 state legal conclusions to which no response is
required.
18. Idaho Power admits that Plaintiff Franklin 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 ANSWER TN INTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 4
Case 1:18-cv-00236-REB Document 35 Filed 10/09/18 Page 5 oI L2
19. Idaho Power lacks knowledge or information sufficient to form a belief about the
allegations in paragraph l9 and, on that basis, denies these allegations.
20. 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 paragraph 20.
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 ParagraphZ3.
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 Plaintiffs frled FERC Form 556 self-certifications of QF
status with FERC. Idaho Power lacks knowledge or information suffrcient to form a belief about
the remaining allegations in paragraph26 and, on that basis, denies these allegations.
27. Idaho Power denies the allegations in paragraph 27.
28. Idaho Power denies the allegations in paragraph 28.
IDAHO POWER COMPANY'S ANSWER TN INTERVENTION TO PLAINTIFFS' FIRST
AMENDED COMPLATNT - 5
Case L:18-cv-00236-REB Document 35 Filed 10/09/18 Page 6 of 12
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 a Notice 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 Paragraph32.
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 Paragraph34.
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 Paragraph36.
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 Paragraph3T .
38. The allegations in paragraph 38 state legal conclusions to which no response is
required. To the extent an answer is required, ldaho Power denies the allegations of Paragraph 38.
IDAHO POWER COMPANY'S ANSWER IN INTERVENTION TO PLAINTIFFS' FIRST
AMENDED COMPLATNT - 6
Case 1:18-cv-00236-REB Document 35 Filed 1-0/09/18 Page 7 of L2
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 Paragraph43.
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 ANSWER IN TNTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 7
Case 1:18-cv-00236-REB Document 35 Filed 10/09/1-8 Page I of L2
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 Paragr aph 49 .
50. Idaho Power admits that Plaintiffs have affempted to self-certify their four proposed
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 5l 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, Idaho Power denies the allegations of Paragraph52.
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, ldaho 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 ANSWER IN INTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 8
Case l-:l-8-cv-00236-REB Document 35 Filed 10/09/18 Page 9 oI L2
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 inparagraph 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.
AFFIRMATIVE 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 barred 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 ANSWER TN TNTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 9
Case 1:18-cv-00236-REB Document 35 Filed L0/09/l-8 Page 10 of 12
5. Plaintiffs' claims are "as-applied" claims under PURPA subject to the exclusive
jurisdiction of the State of Idaho, 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 Qualifying 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,
ratifi cation, acquiescence and/or unclean hands.
9. Plaintiffs' First Amended Complaint, and every claim asserted therein, is bared by
the doctrine of res judicata 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 $$ 12-117,12-120 and12-121, 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 ANSWER IN INTERVENTION TO PLAINTIFFS' FIRST
AMENDED COMPLAINT - 10
Case 1:18-cv-00236-REB Document 35 Filed 10/09/18 Page LL ot L2
DATED this 96 day of October, 2018.
ANDERSEN SCHWARTZMAN
WOODARD BRAILSFORD, PLLC
lsl Steven B. Andersen
Steven B. Andersen
Attorneys for Defendant-Intervenor ldaho Power Company
IDAHO POWER COMPANY'S ANSWER IN INTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 1I
Case 1:18-cv-00236-REB Document 35 Filed 10/09/18 Page L2 of L2
CERTIFICATE OF SERYICE
I hereby certify that on this 9ft day of October, 2018, I caused a true and correct copy of
the foregoing document to be electronically filed with the Clerk of the Court using the CN4/ECF
system, which sent a Notice of Electonic Filing to the following persons:
Peter J. Richardson
Robert C. Huntley
Brandon Karpen
ScotlZaruig
peter(d richardsonadams. com
[e-mail]
brandon.karpen@Fuc. idaho. eov
scott.zanzi e@ ag. idaho. eov
/s/ Steven B. Andersen
Steven B. Andersen
IDAHO POWER COMPANY'S ANSWER IN INTERVENTION TO PLATNTIFFS' FIRST
AMENDED COMPLAINT - 12