20181026Memo re MSJ 39-1.pdf

DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................................... 1
II. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ......................... 2
III. FACTUAL AND PROCERDURAL BACKGROUND .................................................. 2
A. Facts Regarding PURPA, FERC’s Regulations and the IPUC’s Implementation
Thereof ...................................................................................................................... 2
B. Facts Regarding Idaho Power ................................................................................... 5
C. Facts Regarding Plaintiffs’ QF Application ............................................................. 5
D. Facts Regarding the Underlying Administrative Actions and Orders ...................... 7
IV. ARGUMENT ................................................................................................................... 9
A. Summary Judgment Standard ................................................................................... 9
B. Idaho Power is Entitled to Summary Judgment Because Plaintiffs’ Claim is Time-
Barred ........................................................................................................................ 9
C. Idaho Power is Entitled to Summary Judgment Because Plaintiffs’ Untimely
Challenge of the IPUC’s Orders Constitutes an Improper Collateral Attack on Final
Orders That Have Preclusive Effect ....................................................................... 11
D. Idaho Power is Entitled to Summary Judgment Because, Contrary to Plaintiffs’
Sole Contention, the IPUC Did Not Determine Plaintiffs’ QF Status, Nor Are
Plaintiffs Entitled to a Certain Rate or Contract Term ........................................... 13
1. The IPUC Did Not Determine Plaintiffs’ QF Status ...................................... 13
2. PURPA Does Not Entitle Plaintiffs to Any Specific Rate or Contract Term . 16
V. CONCLUSION .............................................................................................................. 16

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TABLE OF AUTHORITIES

Cases
A.W. Brown Co., Inc. v. Idaho Power Co., 121 Idaho 812 (1992) ................................................. 4
Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781 (1984) ...................................................... 4
Allco Renewable Energy Ltd. v. Mass. Elec. Co., 875 F.3d 64 (1st Cir. 2017) .................... 2, 3, 16
Cal. Pub. Utils. Comm’n, 133 FERC ¶ 61,059 (2010) ......................................................... 3, 4, 15
Crossroads Cogeneration Corp. v. Orange & Rockland Utils., Inc.,
159 F.3d 129 (3d Cir. 1998)..................................................................................................... 12
Dias v. Elique, 436 F.3d 1125 (9th Cir. 2006) .............................................................................. 12
Empire Lumber Co. v. Wash. Water Power Co., 114 Idaho 191 (1987) ........................................ 4
Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380 (5th Cir. 2014) ........................................... 2, 3, 16
FERC v. Mississippi, 456 U.S. 742 (1982) ................................................................................. 2, 3
Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 155 Idaho 780 (2013) ..................................... 3, 4
Indep. Energy Prods. Ass’n, Inc. v. Cal. Pub. Utils. Comm’n, 36 F.3d 848 (9th Cir. 1994) .. 14, 16
J & J Contractors/O.T. Davis Const., A.J.V. v. State, 118 Idaho 535 (1990) .............................. 12
Luz Dev. & Fin. Corp., 51 FERC ¶ 61,078 (1990) ............................................................. 4, 14, 15
N.Y. State Elec. & Gas Corp. v. Saranac Power Partners, LP, 117 F.Supp.2d 211
(N.D.N.Y. 2000) ............................................................................................................... 10, 11
Neal v. Harris, 100 Idaho 348 (1979) ........................................................................................... 10
Portland Gen. Elec. Co. v. FERC, 854 F.3d 692 (D.C. Cir. 2017)................................................. 3
Power Res. Grp. v. Pub. Util. Comm’n of Tex., 422 F.3d 231 (5th Cir. 2005) ............................... 3
Rosebud Enters., Inc. v. Idaho Pub. Utils. Comm’n, 128 Idaho 609 (1996) .................................. 4
Ticor Title Co. v. Stanion, 144 Idaho 119 (2007) ......................................................................... 13
Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368 (1979). ............................. 12, 13
Welch v. Del Monte Corp., 128 Idaho 513 (1996) ........................................................................ 11

Statutes
16 U.S.C. § 824a ............................................................................................................................. 9
16 U.S.C. § 824a-3(a) ..................................................................................................................... 2
16 U.S.C. § 824a-3(b) ................................................................................................................. 2, 3
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16 U.S.C. § 824a-3(a)(1)........................................................................................................... 2, 16
16 U.S.C. § 824a-3(a)(2)........................................................................................................... 2, 16
16 U.S.C. § 824a-3(d) ..................................................................................................................... 3
16 U.S.C. § 824a-3(f) ...................................................................................................................... 3
18 C.F.R. § 292.101 ........................................................................................................................ 9
18 C.F.R. § 292.304(b)(2). ........................................................................................................ 3, 16
18 C.F.R. § 292.304(c)(1) ........................................................................................................... 4, 5
18 C.F.R. § 292.304(c)(2) ........................................................................................................... 4, 5
18 C.F.R. § 292.304(c)(3)(ii) ................................................................................................ 4, 5, 15
18 C.F.R. § 292.304(e)(2)(iii) ......................................................................................................... 4
I.C. § 61-502 ................................................................................................................................... 4
I.C. § 61-503 ................................................................................................................................... 4
I.C. § 61-625 ................................................................................................................................. 11
I.C. § 61-626 ................................................................................................................................. 12
I.C. § 61-627 ............................................................................................................................. 8, 12

Idaho Public Utilities Commission Orders
Order No. 32262 (2011) .................................................................................................................. 5
Order No. 32697 (2012) .................................................................................................................. 5
Order No. 33357 (2015). ................................................................................................................. 5

Rules
Federal Rule of Civil Procedure 56(a), ........................................................................................... 9
Idaho Appellate Rule 14(b) ................................................................................................. 8, 10, 11
Idaho Appellate Rule 21 ............................................................................................................... 11
Idaho Constitution, Article 5......................................................................................................... 12
Idaho Local Rule 7.1(b)(1), ............................................................................................................ 2

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DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 1
Defendant-Intervenor Idaho Power Company (“Idaho Power”), by and through its counsel
of record, hereby respectfully submits this Memorandum in Support of Motion for Summary
Judgment.
I. INTRODUCTION
Plaintiffs’ entire case is based upon a fundamentally flawed and blatantly erroneous claim
that the allegedly offending party, the Idaho Public Utilities Commission (“IPUC”), has repeatedly
and explicitly disavowed. According to Plaintiffs, in ruling upon Idaho Power’s Petition for
Declaratory Relief (“Petition”) regarding the rates and terms of any contracts it must enter into
with Plaintiffs under the Public Utility Regulatory Policies Act of 1978 (“PURPA”), the IPUC
determined Plaintiffs’ Qualifying Facility (“QF”) status, thereby intruding upon the exclusive
jurisdiction of the Federal Energy Regulatory Commission (“FERC”). Contrary to Plaintiffs’
claim, not only did Idaho Power assume Plaintiffs’ QF status for purposes of its Petition, but so
too did the IPUC in ruling upon that Petition. In fact, the IPUC expressly stated as such in both
orders at issue in this matter and described Plaintiffs’ argument to the contrary as “a frivolous
effort to contrive a legal basis for reconsideration.” (Ex. 12, p. 3.1) Therefore, because the IPUC
did not determine Plaintiffs’ QF status, their entire operative First Amended Complaint fails. It
also fails because it, and the claim asserted therein, is time-barred and constitutes an improper
collateral attack on the IPUC’s final orders that have preclusive effect. Consequently, because
there are no material facts that are in dispute and Idaho Power is entitled to summary judgment as
a matter of law, its instant motion must be granted.

1 All exhibits cited to herein are attached to the Declaration of Donovan E. Walker (“Walker Decl.”) filed concurrently herewith.
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II. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
Under Local Rule 7.1(b)(1), a party moving for summary judgment “shall file a separate
statement of all material facts…which the moving party contends are not in dispute.” L.R.
7.1(b)(1). In accordance with this Court’s prior order, the parties worked together and submitted
to this Court a Stipulated Statement of Facts and Legal Issues. (See Dkts. 22, 37.) All of the
undisputed material facts pertinent to the instant motion are contained in the parties’ Stipulated
Statement of Facts and Legal Issues and, therefore, Idaho Power respectfully directs this Court’s
attention to that document, Docket 37, for use as Idaho Power’s statement of undisputed material
facts under Local Rule 7.1(b)(1).
III. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Regarding PURPA, FERC’s Regulations and the IPUC’s Implementation Thereof

Congress enacted PURPA “to reduce the dependence of electric utilities on foreign oil and
natural gas and to control consumer costs.” Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 384
(5th Cir. 2014); also FERC v. Mississippi, 456 U.S. 742, 745 (1982) (“Mississippi”). To
accomplish these goals, PURPA directs FERC to promulgate rules mandating that electric utilities
purchase energy from cogeneration and small power production facilities, which are known as
QFs. Id.; also Allco Renewable Energy Ltd. v. Mass. Elec. Co., 875 F.3d 64, 67 (1st Cir. 2017);
16 U.S.C. § 824a-3(a), (b). Despite seeking to promote energy generation by QFs, Congress did
not intend to do so at the expense of American consumers and, as such, PURPA strikes a balance
between these two interests. Exelon, 766 F.3d at 384. For example, “PURPA requires utilities to
purchase power generated by [QFs], but also mandates that the rates that utilities pay for such
power ‘shall be just and reasonable to the electric consumers of the electric utility and in the public
interest.’” Id. (citing 16 U.S.C. § 824a-3(a)(2), (b)(1)). Additionally, the rates utilities are to pay
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QFs for their power cannot exceed the “incremental cost to the electric utility of alternative electric
energy.” Allco, 875 F.3d at 67; 16 U.S.C. § 824a-3(b). PURPA defines “incremental cost” as “the
cost to the electric utility of the electric energy which, but for the purchase from such cogenerator
or small power producer, such utility would generate or purchase from another source.” 16 U.S.C.
§ 824a-3(d). In accordance with PURPA’s directive, “FERC promulgated regulations requiring
utilities to purchase electricity from QFs ‘at a rate equal to the utility’s full avoided cost.’” Allco,
875 F.3d at 67; 18 C.F.R. § 292.304(b)(2).
PURPA also requires state regulatory authorities to implement FERC’s rules. Mississippi,
456 U.S. at 751; also 16 U.S.C. § 824a-3(f). A state commission such as the IPUC can comply
with its implementation obligations by “issuing regulations, by resolving disputes on a case-by-
case basis, or by taking any other action reasonably designed to give effect to FERC’s rules.” Id.
FERC provides state agencies “great latitude in determining the manner of implementation of
[FERC’s] rules, provided that the manner chosen is reasonably designed to implement the
requirements” of FERC’s regulations. Exelon, 766 F.3d at 385. Given this substantial latitude,
FERC is “reluctant to second guess the state commission’s determinations.” Cal. Pub. Utils.
Comm’n, 133 FERC ¶ 61,059, at P 24 (2010) (“CPUC”).
Under PURPA and FERC’s regulations, states are responsible for regulating and
authorizing agreements under which a utility purchases energy from a QF, including
“determin[ing] the specific parameters” of any such agreement. Power Res. Grp. v. Pub. Util.
Comm’n of Tex., 422 F.3d 231, 238 (5th Cir. 2005); also Idaho Power Co. v. Idaho Pub. Utils.
Comm’n, 155 Idaho 780, 786-89 (2013). As part of this responsibility, states calculate the avoided
cost rates, determine if and when a legally enforceable obligation is established and determine the
length and terms of any agreement. Id.; also Portland Gen. Elec. Co. v. FERC, 854 F.3d 692, 695
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(D.C. Cir. 2017); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 785-86 (1984); 18 C.F.R.
§ 292.304(c)(1), (2). With respect to determining avoided cost rates, one factor to be considered
is “the terms of any contract including the duration of the obligation.” CPUC, 133 FERC ¶ 61,059,
at P 23; also 18 C.F.R. § 292.304(e)(2)(iii). Also, avoided cost rates may “differentiate among
qualifying facilities using various technologies on the basis of the supply characteristics of the
different technologies.” Id.; also 18 C.F.R. § 292.304(c)(3)(ii).
To date, FERC has only considered battery storage QFs in one decision, finding that:
[T]he primary energy source of the battery system is not the electro-chemical reaction. Rather, it is the electric energy which is utilized to initiate that reaction, for without that energy, the storage facility
could not store or produce the electric energy which is to be
delivered at some later time. Since this energy is the primary energy source of the facility, it is necessary to look to the source of this energy as the ultimate primary energy source of the facility.
Luz Dev. & Fin. Corp., 51 FERC ¶ 61,078, at 61,171 (1990).
Idaho has implemented PURPA consistent with federal and state law. The IPUC has the
authority and is the appropriate state forum to establish avoided cost rates, to set
standard/published rate eligibility caps that exceed the 100 kilowatt (“kW”) minimum, to review
and approve contracts and to resolve disputes between QFs and electric utilities. I.C. §§ 61-502,
61-503; Idaho Power Co., 155 Idaho at 786-89; A.W. Brown Co., Inc. v. Idaho Power Co., 121
Idaho 812, 816 (1992); Empire Lumber Co. v. Wash. Water Power Co., 114 Idaho 191, 192 (1987);
Afton Energy, 107 Idaho at 785-86. The IPUC has implemented PURPA by issuing general
procedures and engaging in case-by-case analysis. Rosebud Enters., Inc. v. Idaho Pub. Utils.
Comm’n, 128 Idaho 609, 615 (1996).
Of relevance, FERC’s regulations require state commissions to set “standard rates for
purchases from [QFs] with a design capacity of 100 kilowatts or less,” and permit them to set
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“standard rates for purchases from [QFs] with a design capacity of more than 100 kilowatts.” 18
C.F.R. § 292.304(c)(1), (2). Consistent with these regulations, the IPUC has established two
methods for calculating avoided cost rates that depend upon the QF’s size: (1) the surrogate
avoided resource (“SAR”) method; and (2) the integrated resource plan (“IRP”) method. See IPUC
Order No. 32697, pp. 7-8 (2012). Similarly consistent with FERC’s regulation that standard rates
“[m]ay differentiate among [QFs] using various technologies…,” 18 C.F.R. § 292.304(c)(3)(ii),
the IPUC has set the eligibility cap for wind and solar QFs to access published avoided cost rates
at 100 kilowatts (kW). IPUC Order No. 32697, p. 13. Published avoided cost rates are available
for QFs of all other resource types with a design capacity of up to 10 average megawatts (aMW).
Id. at pp. 7-8. The IPUC established these 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 cost’” – by solar and wind QFs. IPUC Order No.
32262, p. 3 (2011).
As for the length of PURPA contracts, the IPUC has established 20-year terms for standard
published rate contracts. See IPUC Order No. 33357, pp. 1, 7 (2015). For non-standard, IRP-
based contracts, the IPUC found that a two-year term was reasonable, consistent with PURPA’s
intent and FERC’s regulations and appropriately balanced the competing interests of protecting
ratepayers and developing QF power generation. Id. at p. 25.
B. Facts Regarding Idaho Power
Idaho Power is a vertically integrated electric utility engaged in the business of generating,
purchasing, transmitting and distributing electrical energy. Idaho Power is subject to the
provisions of PURPA, as implemented by the rules and regulations of the IPUC and FERC.

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C. Facts Regarding Plaintiffs’ QF Applications
In January 2017, Plaintiffs each filed a Form 556, entitled “Certification of Qualifying
Facility (QF) Status for a Small Power Production or Cogeneration Facility” (“Form 556”), with
FERC, in which they each self-certified themselves to be battery storage QFs. (Dkt. 37, Stipulated
Fact [“SF”] 4; Exs. 1-4.) Pursuant to the Form 556s, each of Plaintiffs’ battery storage facilities
has a nameplate design capacity of 32,000 kW, is located on the same site and is being developed
by Alternative Power Development, LLC. (Dkt. 37, SF 1; Exs. 1-5.) Additionally, the primary
energy source for each battery storage facility is solar. (Id.) Specifically, not only does each QF’s
hourly generation output profile generally match the shape, timing and output of a solar generation
profile, (Walker Decl., ¶ 17; Exs. 1-4, Generation Profile), but Plaintiffs’ respective Form 556s
describe each facility’s power source as follows:
The energy storage system that comprises the energy storage
Qualifying Facility 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. 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).
(Exs. 1-4, Form 556, p. 9, emphasis added.)
In late January 2017, Plaintiffs submitted to Idaho Power their respective Schedule 73
Qualifying Facility Energy Sales Agreement Request (“Schedule 73”), along with their Form 556
and a generation output profile. (Dkt. 37, SF 5; Exs. 1-4.) In their Schedule 73 applications,
Plaintiffs each requested published avoided cost rates and a 20-year contract from Idaho Power.
(Id.) Idaho Power responded to Plaintiffs’ applications with a letter dated February 9, 2017. (Dkt.
37, SF 6; Ex. 6.) In that letter, Idaho Power notified Plaintiffs’ counsel that the applications were
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incomplete, identified several deficiencies and stated that “it does not appear that your proposed
projects qualify for Rate 4 Option – Non-Levelized Non-Fueled Rates and a twenty (20) year
contract term.” (Ex. 6.) Plaintiffs’ counsel responded by letter dated February 10, 2017,
purporting to address the deficiencies in Plaintiffs’ applications and demanding that Idaho Power
proffer 20-year, published avoided cost rates for each facility. (Dkt. 37, SF 7; Ex. 7.) By letter
dated February 27, 2017, Idaho Power responded, stating that it did not agree that Plaintiffs were
eligible for published rates and 20-year contracts and notifying Plaintiffs’ counsel that it had filed
its Petition with the IPUC that same day. (Dkt. 37, SF 8; Ex. 8.)
D. Facts Regarding the Underlying Administrative Actions and Orders
On February 27, 2017, Idaho Power filed its Petition, in which it asked the IPUC for a
determination of Plaintiffs’ proposed battery storage projects’ eligibility for published avoided
cost rates and 20-year contract terms. (Dkt. 37, SF 9; Ex. 9.) In its Petition, Idaho Power argued
that Plaintiffs’ proposed facilities’ eligibility for published rates should be limited to the 100kW
available to solar QFs based upon the facilities’ fuel source. (Ex. 9.) Idaho Power did not dispute
Plaintiffs’ QF self-certification as battery storage facilities and, in fact, it asked the IPUC to assume
the validity of these self-certifications without prejudice to Idaho Power’s ability to separately
challenge them before FERC, the proper authority to determine QF status. (Id. at p. 6.)
On July 13, 2017, the IPUC issued Order No. 33785, in which it issued its ruling on Idaho
Power’s Petition. (Dkt. 37, SF 10; Ex. 10.) In this Order, the IPUC acknowledged that Idaho
Power had not and was not challenging Plaintiffs’ asserted QF status and confirmed that “[t]he
battery storage facilities’ QF status is a matter within FERC’s jurisdiction and is not at issue in this
case.” (Ex. 10, pp. 3, 11.) In this Order, the IPUC also determined that, because the primary
energy source of Plaintiffs’ battery storage facilities is solar and their design capacities exceed 100
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kW, Plaintiffs are not entitled to published avoided cost rates and 20-year contracts and, instead,
are entitled to negotiate two-year contracts that use Idaho’s IRP-based avoided cost methodology,
identical to solar and wind QFs. (Id. at pp. 12-13.)
On August 3, 2017, Plaintiffs filed a Petition for Reconsideration of Order No. 33785.
(Dkt. 37, SF 11; Ex. 11.) Plaintiffs’ only basis for error was that the IPUC improperly determined
Plaintiffs’ QF status. (Ex. 11.) On August 29, 2017, the IPUC issued Order No. 33858, in which
it denied Plaintiffs’ Petition for Reconsideration and stated in pertinent part as follows:
[Plaintiffs] assert[] that, contrary to Indep. Energy Producers, we determined the QF status of battery storage facilities in the Final Order. We did not. [Plaintiffs’] mischaracterization of our Final
Order is a frivolous effort to contrive a legal basis for
reconsideration. (Dkt. 37, SF 12; Ex. 12, p. 3.)
Plaintiffs had 42 days from the date of Order No. 33858 to file a Notice of Appeal to the
Idaho Supreme Court under Idaho Code § 61-627 and Idaho Appellate Rule 14(b). See I.C. § 61-
627; I.A.R. 14(b). Plaintiffs, however, never filed any such appeal and, in fact, to date they have
not appealed either IPUC Order No. 33785 or 33858 to any state court in Idaho. (Dkt. 37, SF 13.)
Instead, on December 14, 2017, two months after the time within which Plaintiffs had to file an
appeal of the IPUC’s decision had expired, they 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 (“FERC Petition”). (Dkt. 37, SF 14; Ex. 13.) On February 15, 2018, FERC issued a
Notice of Intent Not to Act, in which it declined to initiate an enforcement action pursuant to
Section 210(h)(2)(A) of PURPA as requested by Plaintiffs. (Dkt. 37, SF 15, Ex. 14.)
In light of FERC’s refusal to act, on May 30, 2018, Plaintiffs commenced the instant
lawsuit against the IPUC by filing their Complaint for Violation of the Federal Power Act, the
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DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 9
Public Utilities Regulatory Policies Act of 1978, and Federal Energy Regulatory Commission
Regulations. (Dkt. 1.) Two days later, on June 1, 2018, Plaintiffs filed their First Amended
Complaint in which they substituted three IPUC’s Commissioners in as party defendants. (Dkt.
2.) In their operative complaint, Plaintiffs again allege, as they did before the IPUC and FERC,
that, in making its ruling as to the rates and contract terms that Plaintiffs are eligible for with
respect to their proposed battery storage facilities, the IPUC improperly determined Plaintiffs’ QF
status. (Exs. 11, 13; Dkts. 1, 2.) To rectify this allegedly improper action by the IPUC, Plaintiffs
ask this Court to find that IPUC Order Nos. 33785 and 33858 are erroneous and that, instead of
being limited to two-year contracts that use Idaho’s IRP-based avoided cost methodology, they are
entitled to published avoided cost rates and 20-year contracts.
IV. ARGUMENT
A. Summary Judgment Standard This Court is familiar with the standards that govern a motion for summary judgment,
which are that “[t]he court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
B. Idaho Power is Entitled to Summary Judgment Because Plaintiffs’ Claim is Time-Barred As with any other claim, Plaintiffs’ instant challenge to the IPUC’s orders must be brought
within the applicable limitations period. Neither PURPA nor FERC’s regulations contain any such
period. See 16 U.S.C. § 824a et seq.; 18 C.F.R. § 292.101 et seq. As a result, and because there
is no federal limitations period directly applicable to PURPA enforcement actions under Section
210(h), courts addressing this issue have applied the “well-settled” rule that “if Congress fails to
include a statute of limitations in a statute, courts should – with few exceptions – impose a state
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DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 10
limitations ‘most closely analogous’ to the federal act in need.” N.Y. State Elec. & Gas Corp. v.
Saranac Power Partners, LP, 117 F.Supp.2d 211, 246 (N.D.N.Y. 2000) (“NYSEG”). An exception
to this rule is when applying a state limitations period would “frustrate or interfere with the
implementation of national policies or be at odds with the purpose or operation of federal
substantive law.” Id. PURPA enforcement actions, however, “fall[] squarely inside the rule, not
the exception.” Id. at 247.
In NYSEG, when the Northern District of New York addressed this issue, it determined that
the most closely analogous state limitations period was the one applicable to the appeal of final
agency actions. See id. at 246-47. It further held that, because the plaintiff failed to commence its
PURPA enforcement proceeding within this limitations period, the claim was time-barred. Id.
Under Idaho law, any IPUC decision must be appealed within 42 days of the date any
application for rehearing is denied. I.A.R. 14(b); see Neal v. Harris, 100 Idaho 348, 350 (1979)
(noting that Idaho Appellate Rule 14 limits the time to appeal IPUC decisions). Specifically, Idaho
Appellate Rule 14(b) provides in pertinent part as follows:
(b) Appeals From an Administrative Agency. An appeal as a matter of right from an administrative agency may be made only by physically filing a notice of appeal with the Public Utilities Commission…within 42 days from the date evidenced by the filing
stamp of the clerk or secretary of the administrative agency on any
decision, order or award appealable as a matter of right. … The time for an appeal from such decision, order or award of the public utilities commission begins to run when an application for rehearing is denied, or, if the application is granted, after the date evidenced
by the filing stamp on the decision on rehearing.
Here, the IPUC issued Order No. 33858 denying Plaintiffs’ Motion for Reconsideration on
August 29, 2017. (Dkt. 37, SF 12; Ex. 12.) Pursuant to Idaho Appellate Rule 14(b), Plaintiffs had
42 days therefrom – until October 10, 2017 – to appeal that order and, in turn, the IPUC’s Order
No. 33785 that was the subject of Plaintiffs’ Motion for Reconsideration. I.A.R. 14(b). Plaintiffs
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failed to comply with this limitations period and, in fact, to date they have not appealed either of
the IPUC’s orders to any state court in Idaho. (Dkt. 37, SF 13.) Instead, the first attempt Plaintiffs
made to challenge the orders was when they filed their FERC Petition on December 14, 2017, over
two months after the limitations period had already expired. (Dkt. 37, SF 13, 14.) Consequently,
Plaintiffs’ instant lawsuit, and the claim asserted therein, is time-barred and, as such, Idaho Power
is entitled to summary judgment.
C. Idaho Power is Entitled to Summary Judgment Because Plaintiffs’ Untimely Challenge of the IPUC’s Orders Constitutes an Improper Collateral Attack on Final Orders That Have Preclusive Effect As noted, Plaintiffs never appealed IPUC Order Nos. 33785 or 33858 to any Idaho state
court, nor did they challenge those orders in any other court or administrative agency within the
applicable 42 day limitations period set forth in Idaho Appellate Rule 14(b). (See Section IV.B,
supra.) As a result, these orders became final, conclusive and beyond this Court’s jurisdiction to
review. See e.g., I.A.R. 21 (the failure to file a timely notice of appeal is jurisdictional and requires
automatic dismissal of the appeal); Welch v. Del Monte Corp., 128 Idaho 513, 516 (1996) (holding
that failing to timely appeal an order of the Idaho Industrial Commission results in the findings of
fact and conclusions of law contained therein becoming conclusive and precluding further
adjudication of those facts and issues). As a result, Plaintiffs are now barred from attacking those
orders collaterally through the instant federal action. NYSEG, 117 F.Supp.2d at 247-48; also I.C.
§ 61-625 (“All orders and decisions of the commission which have become final and conclusive
shall not be attacked collaterally”). The strong public policy considerations supporting the rule
prohibiting collateral attacks on final orders has long been recognized by the Idaho Supreme Court:
The legislature has afforded the orders of the [Idaho Public Utilities]
Commission a degree of finality similar to that possessed by judgments made by a court of law. I.C. s 61-625 reads as follows: … “All orders and decisions of the commission which have become
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final and conclusive shall not be attacked collaterally.” … Final orders of the Commission should ordinarily be challenged either by
petition to the Commission for rehearing or by appeal to this Court
as provided by I.C. ss 61-626 and -627; Id. Const. Art. 5, s 9. A different rule would lead to endless consideration of matters previously presented to the Commission and confusion about the effectiveness of Commission orders.

Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 373-74 (1979).
Not only does the final and conclusive nature of the IPUC’s orders bar collateral attacks
like Plaintiffs’ instant lawsuit, but it also results in those orders having preclusive effect in any
subsequent proceedings, including the instant one. For example, the Third Circuit held that federal
common law rules of preclusion give preclusive effect to the factual findings and legal conclusions
contained in an unreviewed state utility commission’s decision to the same extent as would the
state courts. Crossroads Cogeneration Corp. v. Orange & Rockland Utils., Inc., 159 F.3d 129,
135 (3d Cir. 1998); see also Dias v. Elique, 436 F.3d 1125, 1128 (9th Cir. 2006) (“Federal courts
give the same preclusive effect to the decisions of state administrative agencies as the state itself
would”). Of importance, in Crossroads the Third Circuit found that there is “no provision of
PURPA that seeks to limit common law rules of preclusion from applying to state agency decisions
relating to utility regulation” and concluded that, “[g]iven the substantial role given state utility
agencies by Congress in enacting PURPA, … Congress did not intend to prevent application of
common law rules of preclusion.” Id. As such, the Third Circuit gave preclusive effect to the
state agency’s decision “to the same extent as would the [state’s] courts.” Id.
Based upon this law, the factual findings and legal conclusions in the IPUC’s orders are
entitled to preclusive effect before this Court to the same extent that they would be in Idaho’s state
courts. Id.; see also J & J Contractors/O.T. Davis Const., A.J.V. v. State, 118 Idaho 535, 537
(1990) (“The doctrine of claim preclusion, or res judicata, applies to the effect of administrative
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decisions”). As already discussed, under Idaho law, IPUC orders receive “a degree of finality
similar to that possessed by judgments made by a court of law.” Utah-Idaho Sugar, 100 Idaho at
373. Additionally, as the record shows (1) Plaintiffs had a full and fair opportunity to litigate
whether the IPUC improperly determined their QF status through their prior Motion for
Reconsideration (see Ex. 11); (2) that issue is the identical issue Plaintiffs now raise in the present
lawsuit, (see Ex. 11; Dkts. 2, 29); and (3) the IPUC issued a final order on the merits via Order
No. 33858, (see Ex. 12), that is now final and conclusive. See Ticor Title Co. v. Stanion, 144 Idaho
119, 124 (2007) (delineating the elements of issue preclusion and claim preclusion).
Consequently, because Plaintiffs’ current lawsuit constitutes an improper collateral attack on final
orders that have preclusive effect, Idaho Power is entitled to summary judgment.
D. Idaho Power is Entitled to Summary Judgment Because, Contrary to Plaintiffs’ Sole Contention, the IPUC Did Not Determine Plaintiffs’ QF Status,
Nor Are Plaintiffs Entitled to a Certain Rate or Contract Term Plaintiffs’ entire lawsuit is based upon the allegation that, in ruling upon Idaho Power’s
Petition and finding that Plaintiffs are not entitled to standard/published avoided cost rates and 20-
year contracts, the IPUC improperly determined Plaintiffs’ QF status and denied them certain rates
and contract terms to which they are “entitled.” (E.g., Dkt. 2, ¶¶ 7-13.) Plaintiffs’ claim
misrepresents both the facts and the law and is entirely meritless.
1. The IPUC Did Not Determine Plaintiffs’ QF Status
In its Petition, Idaho Power explicitly stated that it was not challenging Plaintiffs’ QF status
and that, for purposes of its Petition, it wanted the IPUC to assume the validity of Plaintiffs’ QF
status and determine, based upon the facts presented in Plaintiffs’ Schedule 73 applications and
Form 556s, whether Plaintiffs are entitled to published avoided cost rates and 20-year contracts.
(Ex. 9, pp. 6-7.) In ruling upon that Petition, the IPUC did as Idaho Power asked and did not
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question, let alone determine, Plaintiffs’ QF status. (Ex. 10, pp. 3, 10-11.) The IPUC plainly
stated this fact in its order, when it acknowledged that “[t]he battery storage facilities’ QF status
is a matter within FERC’s jurisdiction and is not at issue in this case.” (Id. at p. 11, emphasis
added.) The IPUC confirmed this in its order denying Plaintiffs’ Motion for Reconsideration, in
which Plaintiffs, as they currently do, argued that the IPUC improperly determined their QF status:
[Plaintiffs] argue[] that the Final Order is “unreasonable, unlawful, erroneous or not in conformity with the law” and should be
reconsidered because it infringed on FERC’s jurisdiction to
determine QF status. [Plaintiffs’] only legal authority for its argument is Indep. Energy Producers, 36 F.3d at 856, in which the Ninth Circuit Court of Appeals opined that the authority to make QF status determinations belongs to FERC, not the states. [Plaintiffs]
assert[] that, contrary to Indep. Energy Producers, we determined
the QF status of battery storage facilities in the Final Order. We did not. [Plaintiffs’] mischaracterization of our Final Order is a frivolous effort to contrive a legal basis for reconsideration.
[Plaintiffs] contend[] we determined that the primary energy source
behind a battery storage QF is the QF, based on a misreading of FERC’s decision in Luz Development and Finance Corporation, 51 FERC ¶ 61,078. Franklin Petition at 9. This Commission did not find that the primary energy source behind a battery is the QF, nor
did we assert that Luz stands for such a proposition. In the Final
Order, we explicitly recognized that “battery storage facilities’ QF status is a matter within FERC’s jurisdiction” and we acknowledged the self-certifications of [Plaintiffs’] QFs. Final Order No. 33785 at 3, 10-11. Consistent with FERC’s analysis in Luz, we looked to
the primary energy source of [Plaintiffs’] battery storage QFs to
determine the projects’ eligibility to particular avoided cost rates and contract terms. (Ex. 12, pp. 2-3, emphasis added.) As shown, the record speaks for itself that, contrary to
Plaintiffs’ claim, the IPUC did not determine Plaintiffs’ QF status and, instead, simply determined
which rates and terms Plaintiffs were eligible for in their contracts with Idaho Power, something
the IPUC undeniably has the responsibility and authority to decide. (See Section III.A., supra.)
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In making that determination, the IPUC understandably looked to the primary energy
source for Plaintiffs’ battery storage facilities. (See Ex. 10, pp. 9-13; Ex. 12, pp. 2-4.) Both
applicable case law and FERC’s regulations expressly authorize the IPUC to do so. For example,
in Luz, supra, when evaluating battery storage facilities, FERC found that:
[T]he primary energy source of the battery system is not the electro-chemical reaction. Rather, it is the electric energy which is utilized to initiate that reaction, for without that energy, the storage facility could not store or produce the electric energy which is to be
delivered at some later time. Since this energy is the primary energy
source of the facility, it is necessary to look to the source of this energy as the ultimate primary energy source of the facility. Luz, 51 FERC ¶ 61,078, at 61,171. Additionally, according to FERC’s regulations, in determining
avoided cost rates to be included in a QF’s contract with a utility company, state agencies may not
only consider the contract’s duration, but they may also “differentiate among qualifying facilities
using various technologies on the basis of the supply characteristics of the different technologies.”
CPUC, 133 FERC ¶ 61,059, at P 23; also 18 C.F.R. § 292.304(c)(3)(ii), (e)(2)(iii).
In accordance with this authority, the IPUC, in ruling upon Idaho Power’s Petition, looked
to Plaintiffs’ own Schedule 73 applications and Form 556s and, based upon the information
provided therein, properly determined that the primary energy source for Plaintiffs’ battery storage
facilities is solar. (See Ex. 10, pp. 11-12; Ex. 12, p. 3; also Walker Decl., ¶ 17; Exs. 1-4, Form
556, p. 9, and Generation Profile.) Consequently, since those battery storage facilities are larger
than 100 kW, the IPUC again properly determined that Plaintiffs are not eligible for 20-year
contracts and standard avoided cost rates. (Id.) Instead, they are only eligible for two-year
contracts using Idaho’s IRP methodology. (Id.) This was a proper exercise of the IPUC’s authority
and was not in any way a determination on Plaintiffs’ QF status that intruded upon FERC’s
exclusive jurisdiction.
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In fact, FERC’s exclusive jurisdiction as it relates to the determination of a facility’s QF
status merely extends to (1) certifying and/or decertifying facilities as QFs; and (2) evaluating
whether a QF remains in compliance with the operating and efficiency standards that facilities
must comply with to be certified as and/or remain certified as a QF. See Indep. Energy Prods.
Ass’n, Inc. v. Cal. Pub. Utils. Comm’n, 36 F.3d 848, 853-59 (9th Cir. 1994). As shown, the IPUC
did not do any of these things. Therefore, because the IPUC did not improperly determine
Plaintiffs’ QF status, Idaho Power’s motion must be granted.
2. PURPA Does Not Entitle Plaintiffs to Any Specific Rate or Contract Term
Plaintiffs appear to believe that PURPA “entitles” them to 20-year contracts and standard
avoided cost rates. (See e.g., Dkt. 2, ¶¶ 7-13.) Not so. The only thing that Plaintiffs are “entitled”
to as self-certified QFs under PURPA is the triggering of its provisions mandating that Idaho
Power agree to purchase Plaintiffs’ power at “just and reasonable rates” that do not exceed the
“incremental cost to [Idaho Power] of alternative electric energy.” E.g., Exelon, 766 F.3d at 384;
Allco, 875 F.3d at 67; 16 U.S.C. § 824a-3(a)(2), (b)(1); 18 C.F.R. § 292.304(b)(2). The First
Circuit recently confirmed this fact: “Section 210 of PURPA does not create a contract. Rather, it
merely creates an obligation to enter into a contract at a regulation-specified rate.” Allco, 875 F.3d
at 70-71. As already discussed, the setting of this rate, i.e., the avoided cost rate, is left to the
IPUC, as is the determination of the length of any contract and other terms thereof. Consequently,
contrary to Plaintiffs’ contention, neither PURPA nor FERC’s regulations entitle them to 20-year
contracts with Idaho Power at standard avoided cost rates.
V. CONCLUSION
Based upon the foregoing, Idaho Power respectfully requests that this Court enter summary
judgment in its favor on Plaintiffs’ operative First Amended Complaint.
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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 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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