20181214IPC Reply In Support of Motion 54.pdf

DEFENDANT-INTERVENOR’S REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT [DKT. 40]
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: 208.338.6936
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 REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT [DKT. 40]
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Defendant-Intervenor Idaho Power Company (“Idaho Power”), by and through its counsel
of record, hereby respectfully submits this Reply in Support of Motion to Dismiss Plaintiffs’ First
Amended Complaint [Dkt. 40].
INTRODUCTION
Plaintiffs’ sole basis for its allegations in this matter is their claim that the Idaho Public
Utilities Commission (“IPUC”) improperly determined their Qualifying Facility (“QF”) status.
However, the undisputed, and undisputable, record clearly shows that the IPUC did not make any
determination as to Plaintiffs’ QF status. In fact, the IPUC accepted Plaintiffs’ self-certified QF
status and acknowledged that QF status determinations are exclusively for the federal authority
and not at issue in the IPUC proceedings. The IPUC expressly acknowledged, in both its Final
Order and Final Order on Reconsideration, that it was not making a determination as to Plaintiffs’
QF status. Assuming Plaintiffs to be QFs entitled to the mandatory purchase obligation by Idaho
Power under the Public Utility Regulatory Policies Act of 1978 (“PURPA”), the IPUC then
determined which avoided cost rate and purchase terms Plaintiffs are eligible for in the state of
Idaho. The IPUC can lawfully and properly consider a QF’s generation type and generation
characteristics in determining the appropriate avoided cost rate and purchase terms. Determination
of the appropriate avoided cost rate and purchase terms is not only a function that is expressly
dedicated to the state authority by PURPA, but it is also an as-applied determination regarding
Plaintiffs QFs that is within the exclusive authority and jurisdiction of the state authority. Such
as-applied claims must be brought within state court and, as such, this Court lacks jurisdiction.
ARGUMENT
A. Plaintiffs’ Argument That Their First Amended Complaint Constitutes an As-Implemented Challenge Misstates the Facts, Ignores Their Own Pleadings and is Contrary to Law In an effort to avoid a finding that their First Amended Complaint constitutes an as-applied
challenge, Plaintiffs try to obfuscate the issues by misstating the facts and Idaho Power’s
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arguments and ignoring their own pleadings and what they expressly allege and ask for therein.
When all relevant and accurate information is evaluated, that information and applicable law
compel a finding that Plaintiffs’ claim is an as-applied challenge over which this Court lacks
subject matter jurisdiction. See Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014)
[“Exelon”] (“Federal courts have exclusive jurisdiction over implementation challenges, while
state courts have exclusive jurisdiction over as-applied challenges.”).
Plaintiffs assert two positions in opposition to the argument that their claim is an as-applied
challenge. First, they contend that Idaho Power “suggests that, because Plaintiffs are not
challenging an implementation plan adopted by a promulgated rule, that Plaintiffs’ claims are
therefore as-applied claims.” (Dkt. 48, § II, p. 1.) Second, they maintain that, at Idaho Power’s
request, the IPUC fundamentally changed and abandoned its original implementation plan under
PURPA and replaced it with a plan that is “facially unlawful in that it vests with the IPUC the
alleged authority to make eligibility determinations under PURPA.” (Id., § III, pp. 2-6.) Both of
these arguments are fatally flawed and contrary to the facts and the law.
1. Idaho Power’s As-Applied Argument is Based Upon the IPUC’s Orders, the Substance of Plaintiffs’ Challenge and the Relief They Seek
Contrary to Plaintiffs’ contention, Idaho Power’s as-applied argument is not based upon,
let alone dependent upon, whether Plaintiffs are challenging an implementation plan that was
adopted by a promulgated rule. It makes no difference as to whether the state implementation of
PURPA is pursuant to promulgated rule or on a case-by-case basis - either is equally valid and
lawful. FERC v. Mississippi, 456 U.S. 742, 751 (1982). To support their erroneous position,
Plaintiffs reference two sentences in Idaho Power’s 3.5 page argument on this issue. (See Dkt. 48,
§ II, pp. 1-2; also Dkt. 40-1, § III.B, pp. 10-13.) Plaintiffs presumably latch onto this inaccurate
contention and ignore the remainder of Idaho Power’s argument because the ignored portions
undercut Plaintiffs’ position.
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Idaho Power’s as-applied argument is, as it should be, based upon the actions taken by the
IPUC, the substance of Plaintiffs’ challenge thereto and the nature of the relief they seek from this
Court. As noted in Idaho Power’s Motion to Dismiss (but conveniently ignored by Plaintiffs in
their Response), in their own pleadings Plaintiffs confirm that their challenge is that the IPUC
improperly applied its own PURPA implementation plan by determining that Plaintiffs are not
eligible for 20-year contracts with standard/published avoided cost rates and, instead, are only
eligible to negotiate two-year contracts with Idaho Power using Idaho’s integrated resource plan
(“IRP”) avoided cost methodology. (See Dkt. 40-1, § III, pp. 12-13.) For example, in their First
Amended Complaint, Plaintiffs allege the following:
The [IPUC’s] ruling deprives [Plaintiffs] of their right to the Idaho Commission’s more favorable contract terms and rates available to
all “other” QFs and instead restricts them to the less favorable
contract terms and rates that are available, under the Idaho Commission’s implementation of PURPA, to just solar and wind QFs. *** The [IPUC’s] actions denied Plaintiffs their right to the Idaho Commission’s established avoided cost rates and contract
terms that the Idaho Commission has made available for all QFs
other than wind or solar. (Dkt. 2, ¶¶ 13, 27, emphasis added; also Dkt. 2, ¶¶ 44-58.) Likewise, in their Motion for Summary
Judgment Plaintiffs ask this Court to enter summary judgment in their favor “declaring and
requiring the [IPUC] honor Plaintiff’s ‘other QF’ status and require Idaho Power Company to
tender twenty (20) year contracts at published rates consistent with their status as ‘other QFs’
pursuant to established IPUC requirements….” (Dkt. 29, pp. 1-2, emphasis added.)
These examples show that Plaintiffs’ challenge to the IPUC’s orders is not that the IPUC’s
method or plan for implementing PURPA is inconsistent with or contrary to the Federal Energy
Regulatory Commission’s (“FERC”) regulations but, rather, that its application of that plan to
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Plaintiffs is improper. (Dkt. 2, ¶¶ 13, 27, 44-58; Dkt. 29, pp. 1-2; see also Exs. 10, 12.1) Stated
differently, Plaintiffs concede that they are not arguing that the IPUC’s methods for calculating
avoided cost rates are unlawful, or that the caps it has placed for eligibility to certain contract terms
are unlawful. (Id.; Dkt. 48, p. 3.) Thus, when stripped to its basics, the only thing Plaintiffs
challenge is whether the IPUC, in ruling upon Idaho Power’s Petition for Declaratory Order
(“Petition”), adhered to and/or properly applied its own PURPA implementation plan by refusing
to find that Plaintiffs are eligible for the contract rates and terms that are applicable to “other” QFs.
(Id.; see also Exs. 10, 12.)
Such a challenge is unequivocally an as-applied challenge. Courts have described as-
applied challenges as those that, among other things: (1) allege that a state agency, such as the
IPUC, “failed to adhere to its own implementation plan in its dealings with a particular qualifying
facility,” Greensboro Lumber Co. v. Georgia Power Co., 643 F.Supp. 1345, 1374 (N.D. Ga. 1986);
or (2) involve “a contention that the state agency’s…implementation plan is unlawful, as it applies
to or affects an individual petitioner.”2 Exelon, 766 F.3d at 388. Such as-applied claims include
questions on whether a state agency’s order properly implements FERC’s regulations, whether a
state agency properly interpreted its own rules, whether the rates under a state’s PURPA
implementation plan are “non-discriminatory, just and reasonable” and whether a state agency’s
adoption of a certain charge to be imposed against a particular class of customers complies with
FERC’s regulations. See e.g., id. at 389-91; Greensboro Lumber, 643 F.Supp. at 1374-75; Mass.
Inst. of Tech. v. Mass. Dept. of Pub. Utils., 941 F.Supp. 233, 236-38 (D. Mass. 1996). As shown
and according to this law, Plaintiffs’ current challenge falls squarely within the sphere of an as-
1 All exhibits cited to herein are attached to the Declaration of Donovan E. Walker that was filed contemporaneously with Idaho Power’s moving papers. (See Dkts. 38-4, 39-2.) 2 As-implemented challenges, on the other hand, are those involving “claims that a state agency
has failed to properly implement FERC’s regulations governing the purchase of energy from QFs.”
Allco Renewable Energy Ltd. v. Mass. Elec. Co., 875 F.3d 64, 68 (1st Cir. 2017).
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applied challenge that must be brought within state court and, as such, this Court lacks jurisdiction.
Exelon, 766 F.3d at 388.
2. The IPUC Did Not Abandon/Replace Its PURPA Implementation Plan With a New Plan That Allows it to Make QF Status Determinations Plaintiffs’ argument that their challenge is an as-implemented challenge because the IPUC
abandoned and replaced its PURPA implementation plan with a new one that grants it authority to
make QF eligibility determinations is unavailing as the IPUC did no such thing. (See Dkt. 48, §
III, pp. 2-6.) Instead, the only thing the IPUC did is assume, as Idaho Power requested, the validity
of Plaintiffs’ QF status and, based upon the facts and information contained in Plaintiffs’ own
applications, determine the avoided cost rates and contract terms for which Plaintiffs are eligible
under the IPUC’s PURPA implementation scheme. (See Ex. 9, pp. 6-7; Exs. 10, 12.) The IPUC
is expressly authorized to do this under PURPA and FERC’s regulations and, in doing so, is also
allowed to “differentiate among qualifying facilities using various technologies on the basis of the
supply characteristics of the different technologies.” E.g., Power Res. Grp. v. Pub. Util. Comm’n
of Tex., 422 F.3d 231, 238 (5th Cir. 2005); Portland Gen. Elec. Co. v. FERC, 854 F.3d 692, 695
(D.C. Cir. 2017); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 155 Idaho 780, 786-89 (2013);
Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 785-86 (1984); Cal. Pub. Utils. Comm’n,
133 FERC ¶ 61,059, at P 23, 24 (2010) (“CPUC”); also 18 C.F.R. §§ 292.304(c)(1), (c)(2),
(c)(3)(ii), (e)(2)(iii).
Notably, Plaintiffs concede this fact in their First Amended Complaint when they allege
that “PURPA grants to state regulatory commissions, such as the [IPUC], the authority to set terms,
conditions and even the rates that regulated investor owned utilities must pay QFs for their
electrical output.” (Dkt. 2, ¶ 7, p. 3.) That is all the IPUC did in this case – nothing more, nothing
less. (See Exs. 10, 12.) Idaho Power did not request, nor did the IPUC create, a brand new
implementation scheme for specific application to Plaintiffs in particular or energy storage QFs in
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general. (Id.; also Ex. 9.) And, even if it did, such a challenge would still be an as-applied
challenge under the case law discussed in the preceding section.3 (See Section A.1, supra.)
To support their erroneous position that the IPUC created a new implementation plan,
Plaintiffs misstate not only the IPUC’s orders, but also misstate and/or misunderstand the exclusive
jurisdiction reserved to FERC as it relates to determining an entity’s QF status or eligibility. For
example, Plaintiffs claim that “the IPUC abandoned [its original] plan in favor of a new plan that
is facially unlawful in that it vests with the IPUC the alleged authority to make eligibility
determinations under PURPA.” (Dkt. 48, pp. 5-6.) Not so. The only “eligibility” determinations
that the IPUC’s orders evince is its granted authority to determine the avoided cost rates and
contract terms for which Plaintiffs, as self-certified QFs, are eligible considering all of the different
factors, including the technologies used to power their facilities. (See Exs. 10, 12.) This, however,
is vastly different than the QF status or eligibility determinations over which FERC has exclusive
jurisdiction. See 18 C.F.R. §§ 292.201-292.211; also Indep. Energy Prods. Ass’n, Inc. v. Cal. Pub.
Utils. Comm’n, 36 F.3d 848, 853-59 (9th Cir. 1994). Those determinations extend only 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. Id. The IPUC did not do either of these things in its
orders, nor through those orders did it adopt a new plan that vests it with the authority to do so as
Plaintiffs inaccurately claim. (See Exs. 10, 12.)
Finally, Plaintiffs seem to believe that simply because they allege (albeit erroneously) that
the IPUC’s implementation plan is unlawful, such a claim is “by definition [an] implementation
claim[] and not [an] as-applied claim[].” (See Dkt. 48, p. 6.) Once again, Plaintiffs fail to cite to
3 Plaintiffs claim that “[t]he determination of what avoided cost ‘methodology’ is applicable to an
entire class of QFs and the determination of essential contracting provisions applicable to an entire
class of QFs are quintessential implementation questions.” (Dkt. 48, p. 5.) Tellingly, Plaintiffs fail to cite to any legal authority supporting this bold assertion, presumably because there is none.
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any legal authority supporting their position that a simple allegation, regardless of whether it is
factually accurate, dictates whether a particular challenge is deemed to be an as-applied or an as-
implemented challenge. (See id.) They cannot do so because, as the authority discussed above in
Section A.1, supra, shows, whether a claim is an as-applied or as-implemented challenge is
dependent upon the nature of the action taken by the state commission and the type of relief sought.
Here, as thoroughly discussed above, the gravamen of Plaintiffs’ claim is that the IPUC, in
ruling on Idaho Power’s Petition and refusing to grant Plaintiffs 20-year contracts with published
avoided cost rates, failed to adhere to its own PURPA implementation plan. (See Dkt. 2, ¶¶ 13,
27, 44-58; Dkt. 29, pp. 1-2; see also Exs. 10, 12.) Such a claim is unequivocally an as-applied
claim over which this Court lacks subject matter jurisdiction. E.g., Greensboro Lumber, 643
F.Supp. at 1374; Exelon, 766 F.3d at 388. Therefore, Idaho Power’s motion should be granted.
B. Plaintiffs Failed to Timely Exhaust Their Administrative Remedies and Neglected to Address This Failure in Their Response Plaintiffs’ Response fails to properly address Idaho Power’s argument regarding Plaintiffs’
failure to exhaust their administrative remedies and, as such, that Response fails to comply with
Local Rule 7.1. Despite acknowledging that Idaho Power made arguments addressing both the as-
applied challenge and the failure to exhaust administrative remedies, Plaintiffs address only the
as-applied argument in their Response because they state “[they] have addressed the second
argument fully in their Response Brief to Idaho Power’s Motion for Summary Judgment and in
their Reply Brief to Idaho Power’s Response to Plaintiff’s Motion for Summary Judgment” and,
since “those arguments are squarely before the court, they will not be repeated [in Plaintiffs’ instant
Response].” (Dkt. 48, § 1, p. 1.)
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Plaintiffs’ refusal to address both of Idaho Power’s arguments in their Response violates
Local Rule 7.1(c)(3).4 According to this rule, a party’s response brief “must contain all of the
reasons and points and authorities relied upon by the responding party.” L.R. 7.1(c)(3). This rule
fosters efficiency and thoroughness and holds parties to the page limitations imposed by Local
Rule 7.1. By refusing to comply with this basic rule, Plaintiffs improperly force Idaho Power and
this Court to waste time reviewing multiple documents to locate missing arguments. Such a tactic
is not appropriate, nor should it be condoned. As such, because Plaintiffs improperly fail to address
Idaho Power’s failure to exhaust administrative remedies argument in their Response, this Court
should treat that unaddressed argument as conceded or deem this failure to “constitute a consent
to…the granting of [Idaho Power’s] motion….” See L.R. 7.1(e)(1) (stating that “if an adverse
party fails to timely file any response documents required to be filed under [Local Rule 7.1], such
failure may be deemed to constitute a consent to…the granting of said motion….”); see also
Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.D.C. 2014) (holding that the court may treat
unaddressed arguments as conceded when party in opposition only addresses certain arguments).
Although this failure is sufficient justification for this Court to grant the instant motion on
this argument, see L.R. 7.1(c)(3), (e)(1), for this Court’s convenience, Idaho Power will address
the arguments raised in Plaintiffs’ other briefs in this Reply. According to Plaintiffs’ Response
Brief to Idaho Power’s Motion for Summary Judgment (Dkt. 47) and Reply Brief to Idaho Power’s
Response to its Motion for Summary Judgment (Dkt. 46), it appears that Plaintiffs are maintaining
that Idaho Power’s failure to exhaust administrative remedies argument fails because (1) the IPUC,
by determining Plaintiffs’ QF status, acted without jurisdiction to do so and, thus, Plaintiffs may
4 Plaintiffs did the same thing in their Reply Brief to Idaho Power’s Response to its Motion for Summary Judgment. (See Dkt. 46.) Despite Idaho Power having raised five arguments in its Response to Plaintiffs’ Motion for Summary Judgment, (see Dkt. 38), Plaintiffs address only three
of these arguments in their Reply and direct this Court and Idaho Power to other documents it filed
to find their positions to the remaining two arguments. (See Dkt. 46, § 1, p. 1.) By doing so, Plaintiffs exceeded the ten (10) page limitation for reply briefs set forth in Local Rule 7.1(b)(3).
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attack the IPUC’s lack of jurisdiction at any time and under any circumstances; and (2) there is no
analogous state statute of limitations applicable to Plaintiffs’ current action. (See Dkt. 46, § II, pp.
1-3; Dkt. 47, § III, pp. 9-14.)
Plaintiffs’ first argument can be dealt with swiftly, as Idaho Power has already shown that,
contrary to Plaintiffs’ assertion, the IPUC did not determine Plaintiffs’ QF status. (See Section
A.2, supra; see also Exs. 10, 12.) Thus it did not intrude upon FERC’s exclusive jurisdiction or
exceed its own jurisdiction. Instead, the IPUC has jurisdiction to issue the declaratory orders that
it did under Title 61 of the Idaho Code and the Idaho Uniform Declaratory Judgments Act of 1933.
See e.g., I.C. §§ 10-1201 et seq.; Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho
10, 12 (1986); Harris v. Cassia County, 106 Idaho 513, 516-17 (1984); see also IPUC Order No.
33667, pp. 5-6; IPUC Order No. 29480, p. 16.
As for Plaintiffs’ second argument, there is indeed a time period within which they were
required to appeal the IPUC’s orders and their failure to do so results in a failure to timely exhaust
their administrative remedies and a corresponding lack of jurisdiction in this Court to consider
their instant lawsuit. According to Plaintiffs, the 42-day time period set forth in Idaho Appellate
Rule 14(b) within which a party must appeal an adverse IPUC decision is not a “statute of
limitations” because it is not found in Idaho Code § 5-201 et seq. and because filing such an appeal
“does not constitute the commencement of a ‘civil action’” and, therefore, it is not analogous to
any other Idaho statute of limitations and does not apply. (See Dkt. 47, § III, pp. 9-14.) Plaintiffs’
argument is contrary to case law addressing this issue.
A district court lacks subject matter jurisdiction over a PURPA enforcement action if the
plaintiff fails to timely exhaust its administrative remedies by petitioning FERC to bring an
enforcement action before suing in federal court. See e.g., N.Y. State Elec. & Gas Corp. v. Saranac
Power Partners, LP, 117 F.Supp.2d 211, 246-47 (N.D.N.Y. 2000) (“NYSEG”) (PURPA
enforcement actions not filed within the state limitations period for challenging agency orders are
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time-barred); Niagara Mohawk Power Corp. v. FERC, 306 F.3d 1264, 1269-70 (2d Cir. 2002) (a
district court lacks subject matter jurisdiction if a plaintiff fails to exhaust its administrative remedy
by petitioning FERC to bring an enforcement action prior to suing in federal court); I.A.R. 21 (the
failure to file a timely notice of appeal is jurisdictional and requires automatic dismissal of the
appeal); see also 16 U.S.C. § 824a-3(h)(2)(B).
In NYSEG, the Northern District of New York addressed the statute of limitations
applicable to a PURPA enforcement action brought under Section 210(h), just like Plaintiffs’
instant action. (See Dkt. 2, ¶¶ 1-4.) In that case, the Court held that, because Congress did not
include a statute of limitations in PURPA, the most closely analogous state limitations period
should apply and govern which, according to the Court, was the statute addressing the time to
challenge an agency action. NYSEG, 117 F.Supp.2d at 246-47. Because the plaintiff in NYSEG
failed to comply with that time period, the Court held that the claim was time-barred. Id.
Here, the time period within which a party must challenge an adverse IPUC decision is 42
days from the date of that decision. See I.A.R. 14(b). Plaintiffs failed to petition FERC to bring
an enforcement action within this 42-day time period and, therefore, that enforcement action was
time-barred which, in turn, means Plaintiffs failed to timely exhaust their administrative remedies
and, as such, this Court lacks jurisdiction over Plaintiffs’ instant lawsuit. See e.g., NYSEG, 117
F.Supp.2d at 246-47; Niagara Mohawk, 306 F.3d at 1269-70; I.A.R. 21. Consequently, Idaho
Power’s motion should be granted.
CONCLUSION
Based upon the foregoing arguments, and those set forth in Idaho Power’s moving papers,
Idaho Power respectfully requests that this Court dismiss Plaintiffs’ First Amended Complaint in
its entirety.
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DATED this 14th day of December, 2018.
ANDERSEN SCHWARTZMAN
WOODARD BRAILSFORD, PLLC /s/ Steven B. Andersen
Steven B. Andersen
Attorneys for Defendant-Intervenor Idaho Power Company
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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of December, 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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