20181026IPC Resp to Pl Statement 38-1.pdf

DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [DKT. 29-4]
Steven B. Andersen (ISB 2618) [e-mail]
Wade L. Woodard (ISB 6312)
[e-mail] ANDERSEN SCHWARTZMAN WOODARD BRAILSFORD, PLLC 101 South Capitol Boulevard, Suite 1600
Boise, ID 83702-7720
Telephone: [phone] Facsimile: 208.342.4455 Donovan E. Walker (ISB 5921)
[e-mail] IDAHO POWER COMPANY 1221 West Idaho Street (83702) P. O. Box 70 Boise, ID 83707
Telephone: [phone]
Facsimile: 208.388.6936
Attorneys for Defendant-Intervenor Idaho Power Company
IN THE UNITED STATES DISTRICT COURT FOR 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,
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.
Case No.: 1:18-cv-00236-REB
DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT [DKT. 29-4]
Case 1:18-cv-00236-REB Document 38-1 Filed 10/26/18 Page 1 of 5
DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29] - 1
Pursuant to Local Civil Rule 7.1(c)(2), Defendant-Intervenor Idaho Power Company
(“Idaho Power”), by and through its counsel of record, hereby submits this Response to Plaintiffs’
Concise Statement of Material Facts in Support of Motion for Summary Judgment [Dkt. 29-4].
I. PRELIMINARY STATEMENT
Under Local Civil Rule 7.1(c)(2), Idaho Power is required to file with its opposition to
Plaintiffs’ Motion for Summary Judgment [Dkt. 29] a separate statement, not to exceed ten (10)
pages, of all material facts which Idaho Power contends are in dispute. In accordance with this
requirement, Idaho Power hereby provides this statement solely for the purpose of responding to
Plaintiffs’ Concise Statement of Material Facts by identifying which of those facts, as alleged by
Plaintiffs to support their motion and the arguments made therein, are disputed. In light of Idaho
Power’s separate Motion for Summary Judgment, the use of the word “disputed” or similar
references should not be construed to mean that Idaho Power believes that there are genuine issues
of material fact that would necessitate a trial. Instead, such language simply means that Idaho
Power disputes Plaintiffs’ identified fact as alleged and/or as it relates to the arguments made in
their Motion for Summary Judgment. Idaho Power maintains its position that there are not any
genuine issues of material fact with respect to the grounds entitling it to summary judgment.
II. RESPONSIVE STATEMENT
With respect to each of Plaintiffs’ listed facts, Idaho Power responds as follows:
QF FACT 1: Undisputed that each Plaintiff filed a Form 556 with the Federal Energy
Regulatory Commission (“FERC”) and that each Plaintiff’s respective Form 556, among many
other things, did the following: (1) identified its “primary energy input” as “[o]ther renewable
resource” in paragraph 6a; and (2) described itself as “an energy storage system Qualifying
Facility” in paragraph 7h. Each Plaintiff’s respective Form 556 at paragraph 7h also stated the
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DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29] - 2
following: “The current initial design utilizes solar photovoltaic (PV) modules mounted to single-
axis trackers to provide the electric energy input to the Qualifying Facility’s battery storage system.
The PV modules are planned to be connected in series/parallel combinations to solar inverters,
rated approximately 2.5 MWac each, (subject to change).”
QF FACT 2: Undisputed.
QF FACT 3: Undisputed that each Plaintiff’s respective Form 556 at paragraph 7h stated
that its energy storage system “is designed to, and will, receive 100% of its energy input from a
combination of renewable energy sources such as wind, solar, biogas, biomas, etc.” It is also
undisputed that each Plaintiff’s respective Form 556 at paragraph 7h stated that “The current initial
design utilizes solar photovoltaic (PV) modules mounted to single-axis trackers to provide the
electric energy input to the Qualifying Facility’s battery storage system. The PV modules are
planned to be connected in series/parallel combinations to solar inverters, rated approximately 2.5
MWac each, (subject to change).”
QF FACT 4: Undisputed.
CONTRACT FACT 1: Undisputed.
CONTRACT FACT 2: Disputed, but the dispute is not material. Specifically, while
Idaho Power did respond to each Plaintiff’s Schedule 73 application with a letter dated January 9,
2017, in which it, among other things, requested that Plaintiffs “supplement [their] Applications
with additional information that verifies eligibility for the requested rates and terms,” more than
three “deficiencies” were identified in that letter.
CONTRACT FACT 3: Undisputed that, on January 10, 2017, Plaintiffs’ counsel
responded to Idaho Power’s January 9, 2017 letter and that, in that letter, Plaintiffs’ counsel, among
other things, stated that “[e]ach deficiency you identify is addressed….”
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DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29] - 3
CONTRACT FACT 4: Undisputed.
IPUC PROCEEDING FACT 1: Undisputed.
IPUC PROCEEDING FACT 2: Undisputed.
IPUC PROCEEDING FACT 3: Undisputed.
FERC PROCEEDING FACT 1: Disputed, but neither the dispute nor the disputed fact
is material. While it is undisputed that on December 14, 2017, Plaintiffs filed a Petition for
Declaratory Order and Petition for Enforcement Pursuant to Section 210(h) of the Public Utility
Regulatory Policies Act of 1978 with FERC, which was assigned Docket No. EL 18-50-000, and
that on February 15, 2018, FERC issued a “Notice of Intent Not to Act,” Plaintiffs misquote that
Notice. Specifically, in FERC’s February 15, 2018 Notice, the sentence that Plaintiffs purport to
quote does not state what they claim it states and, instead, it states the following: “Our decision
not to initiate an enforcement action means that Petitioners may themselves being an enforcement
action against the Idaho Commission in the appropriate court.”
DATED this 26th day of October, 2018.
ANDERSEN SCHWARTZMAN WOODARD BRAILSFORD, PLLC
/s/ Steven B. Andersen
Steven B. Andersen
Attorneys for Defendant-Intervenor Idaho Power Company
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DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29] - 4
CERTIFICATE OF SERVICE
I hereby certify that on this 26th 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 CM/ECF
system, which sent a Notice of Electronic Filing to the following persons:
Peter J. Richardson [e-mail] Robert C. Huntley [e-mail] Brandon Karpen [e-mail] Scott Zanzig [e-mail]

/s/ Steven B. Andersen
Steven B. Andersen

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