20181214IPC Reply in Support of MSJ.pdf

DEFENDANT-INTERVENOR’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [DKT. 39]
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 FOR SUMMARY JUDGMENT [DKT. 39]
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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 for Summary Judgment
[Dkt. 39].
A. The IPUC Did Not Determine or Reclassify Plaintiffs’ QF Status, Refuse to
Recognize Energy Storage Facilities as QFs or Deprive Plaintiffs of Any Rights to Which They Are Entitled Under PURPA by Adopting a New PURPA Implementation Plan That Allows It to Make QF Eligibility Determinations In their Response to Idaho Power’s Motion for Summary Judgment, Plaintiffs continue to
regurgitate the same fundamentally flawed arguments that they assert in their other pleadings and
motions - namely, that in ruling upon Idaho Power’s Petition for Declaratory Order (“Petition”),
the Idaho Public Utilities Commission (“IPUC”) determined Plaintiffs’ Qualifying Facility (“QF”)
status, thereby intruding upon the exclusive jurisdiction of the Federal Energy Regulatory
Commission (“FERC”) and denying Plaintiffs rights to which they claim they are entitled under
the Public Utility Regulatory Policies Act of 1978 (“PURPA”). (See Dkt. 47, §§ II, IV, pp. 1-9,
14-16.) More specifically, Plaintiffs argue that the IPUC intruded upon FERC’s exclusive
jurisdiction to make QF status and eligibility determinations by allegedly adopting a new PURPA
implementation plan that allowed it to “reclassify” Plaintiffs’ QF status from energy storage QF
to solar QF and actually making such a “reclassification.” (Id.) Similarly, Plaintiffs contend that
the IPUC impermissibly refused to recognize their energy storage QF status and that such a QF is
distinct from its energy source by improperly inquiring into the primary energy source powering
their facilities to determine their eligibility for PURPA benefits. (Id.) Plaintiffs’ arguments are
not supported by the facts or the law and, instead, are directly contrary to them.
As evidenced by the IPUC’s two orders at issue in this case, the IPUC did not “reclassify”
Plaintiffs’ QF status, did not refuse to recognize energy storage QFs as a distinct QF class and did
not adopt a new PURPA implementation plan that authorizes it to make QF status determinations.
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(See Ex. 10, pp. 10-12; Ex. 12, pp. 2-3.) In fact, the IPUC explicitly rejected Plaintiffs’ arguments
to the contrary in its Final Order on Reconsideration:
[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; see also Ex. 10, pp. 10-12.) As the IPUC’s orders show, it
expressly acknowledged Plaintiffs’ self-certified energy storage QF status and did not make, alter
or reclassify that status in ruling upon Idaho Power’s Petition. (Id.)
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
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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; also Dkt. 47, p. 15 [“Idaho Power states the obvious in
that ‘the setting of this rate [avoided cost rate], is left to the IPUC, as is the determination of the
length of any contract and other terms thereof.’”].)
Pursuant to the above authority, in determining what contract terms and rates a particular
QF is eligible for under its PURPA implementation plan, the IPUC is entitled to evaluate the
energy source powering the particular QF and to differentiate among QFs using different energy
sources. E.g., 18 C.F.R. § 292.304(c)(3)(ii). Consistent with this authority and with FERC’s
holding in Luz Dev. & Fin. Corp., 51 FERC ¶ 61,078 (1990), in ruling upon Idaho Power’s Petition
and evaluating the rates and contract terms for which Plaintiffs are eligible, the IPUC looked to
and based its opinion on the primary energy source powering Plaintiffs’ facilities which, as they
concede, is solar.1 (See Exs. 10, 12; also Dkt. 37, Stipulated Fact [“SF”] 1.) That is all the IPUC
1 Plaintiffs claim that Idaho Power’s quotes from Luz are “deceptively out of context” because other portions of Luz “make[] clear that regardless of the magnitude and regardless of the
composition of renewable energy input(s) to a storage facility, the storage facility is nevertheless
a QF.” (Dkt. 47, pp. 2-7, emphasis in original.) This is a distinction without a difference and is irrelevant since, as already noted, the IPUC assumed Plaintiffs’ QF status. (See Exs. 10, 12.)
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did in this case which, under the law discussed above, is well within its granted, and exclusive,
authority.
Despite this fact, Plaintiffs continue to argue that only FERC may look at a facility’s
primary energy source “to determine [its] eligible status as a QF” and that the IPUC “has no role
in making any determination as to a project’s ‘eligibility under PURPA.’” (Dkt. 47, pp. 6-7.) Such
an argument misstates not only the IPUC’s authority, but it also misstates and/or shows a
fundamental misunderstanding of the exclusive jurisdiction reserved to FERC as it relates to
determining an entity’s QF status or eligibility. For example, as discussed in the preceding
paragraphs, the IPUC undeniably does have the authority to make “eligibility” determinations
under PURPA as to the avoided cost rates and contract terms a particular QF is eligible for under
the IPUC’s PURPA implementation plan. And, as the IPUC’s orders at issue in this case establish,
those are the only “eligibility” determinations that the IPUC made relating to Plaintiffs. (See Exs.
10, 12.)
These “eligibility” determinations are 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;
Plaintiffs also argue that FERC’s use of the term “primary energy source” does not mean a single dominant source but, rather, means “any combination” of renewable energy sources and, by focusing on the fact that Plaintiffs’ facilities are fueled primarily by solar power, the IPUC
improperly re-defined the phrase “primary energy source.” (Dkt. 47, pp. 4-5.) This argument is
non-sensical and inapposite as such term referenced by Plaintiffs is only relevant to determine QF status by FERC. As already discussed, the IPUC has the express authority to consider and differentiate between QFs that are powered by different technologies, and, therefore, regardless of whether the IPUC re-defined any particular phrase, which it did not, it was nevertheless allowed
to evaluate and base its ruling regarding the appropriate avoided cost rate and purchase terms
eligibility on the fact that Plaintiffs’ facilities are primarily powered by solar energy. E.g., 18 C.F.R. § 292.304(c)(2)(iii).
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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.
Understandably, when a state commission such as the IPUC makes one of those limited
determinations or grants itself or the utilities under its purview the authority to do so, it intrudes
upon FERC’s jurisdiction. Id. The IPUC, however, did not do either of these things in its orders
pertaining to Plaintiffs. (See Exs. 10, 12.)
Nor did the IPUC deny Plaintiffs the full avoided cost rates or any other benefits to which
they are allegedly entitled under PURPA. Plaintiffs’ argument to the contrary is based upon one
out-of-context sentence from Independent Energy Products, supra. (See Dkt. 47, p. 6.) In
particular, Plaintiffs allege that:
Simply put, “What the state may not do, however, is to intrude into the Commission’s [FERC] exclusive jurisdiction to make QF status
determinations by denying to certified QF the full avoided cost rates
to which they are entitled.” [Indep. Energy, 36 F.3d at 859.] Which is exactly what the Idaho Commission did here. (Id.) This contention is fatally flawed and Plaintiffs’ quotation of that one sentence from
Independent Energy Products is misleading. For example, that case involved a state commission’s
adopted program under which utility companies were authorized to (1) monitor the compliance of
the QFs from which they purchased electric energy to ensure that those QFs were in compliance
with federal operating and efficiency standards; and (2) suspend payment of the avoided cost rate
specified in the parties’ executed PURPA contract and replace it with a lower “alternative” avoided
cost rate if the utility determined that a QF was not complying with the federal standards. Indep.
Energy, 36 F.3d at 852-53. As the Ninth Circuit correctly held, such a program usurps FERC’s
exclusive jurisdiction to make QF status determinations because it allows the utility companies to
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effectively decertify any QF that they deem to be out of compliance with federal standards and, in
turn, deny them the full avoided cost rates already agreed to in their contracts. Id. at 852-59.
When the single sentence relied upon by Plaintiffs is analyzed in the context of the entire
Independent Energy Products case, it is clear that neither that case, nor the specific sentence relied
upon by Plaintiffs, assists them or supports their current arguments. Rather, that case supports
Idaho Power’s position because, not only did the IPUC not do anything remotely similar to what
was at issue in Independent Energy Products, but there also is not yet a signed contract between
Plaintiffs and Idaho Power that either Idaho Power or the IPUC improperly modified so as to
deprive rights already agreed to and vested in Plaintiffs. Thus, the IPUC did not intrude upon
FERC’s exclusive jurisdiction, nor did it exceed its own. Instead, it acted entirely consistent with
the authority expressly granted to it under PURPA and FERC’s regulations by merely determining
what avoided cost rates and contract terms Plaintiffs are eligible for under its PURPA
implementation plan and, as such, Idaho Power’s motion should be granted.
B. The IPUC Did Not Unilaterally or Permanently Eliminate the Entire Class of
Energy Storage QFs From PURPA Eligibility Plaintiffs also allege that, through its orders, the IPUC effectively eliminated the entire
class of energy storage QFs from eligibility under PURPA by refusing to recognize them as a
distinct QF class which, in turn, will thwart PURPA’s goal of “uniform federal authority over the
determination of QF status” and “will surely result in a balkanization of energy storage QFs’ status
across the country.” (Dkt. 47, § II.B, pp. 7-9.) While these arguments do not merit much attention,
three points are worth mentioning. First, as already thoroughly discussed above, the IPUC did not
refuse to recognize energy storage QFs as a distinct QF class. (See Section A, supra; see also Exs.
10, 12.) Second, pursuant to the Form 556 currently located on FERC’s website, through which a
facility can seek QF certification or make its own self-certification, facilities can still seek
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certification under PURPA as an energy storage QF if they so desire. Third, because FERC retains
exclusive jurisdiction to determine whether a certain facility qualifies as a QF under PURPA and
complies with all requirements necessary to remain certified as such, and nothing in the IPUC’s
orders alters this, PURPA’s “uniformity goal” will not be thwarted.
While each state may ultimately treat energy storage QFs differently by providing them
with different avoided cost rates and contract terms than other states, this is true for any other type
of QF as well. This is so because, under PURPA and FERC’s regulations, each state is given the
exclusive authority and substantial latitude to determine and value these items and to assure that
the retail electric customers of the utility are not harmed and remain neutral to the transaction and
costs of PURPA. See e.g., Allco Renewable Energy Ltd. v. Mass. Elec. Co., 875 F.3d 64, 67 (1st
Cir. 2017); Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 384-85 (5th Cir. 2014); Power Res.
Grp., 422 F.3d at 238; Portland Gen. Elec., 854 F.3d at 695; Idaho Power Co., 155 Idaho at 786-
89; CPUC, 133 FERC ¶ 61,059, at P 24; 16 U.S.C. §§ 824a-3(a)(2), (b)(1), (d); 18 C.F.R. §§
292.304(a)(1)(i), (a)(2), (b)(2), (c)(1), (c)(2), (c)(3)(ii), (e)(2)(iii). Had Congress desired
uniformity in the rates and contract terms that states provide to QFs, it would not have granted
them the authority and latitude that it did to decide these items and, instead, would have set these
rates and terms itself. For these reasons, Plaintiffs arguments lack merit and Idaho Power’s motion
should be granted.
C. Plaintiffs’ Arguments on the Inapplicability of Idaho Power’s Collateral
Estoppel, Claim Preclusion and Statute of Limitations Arguments Are Incorrect and, According to Applicable Law, They All Apply and Defeat Plaintiffs’ Claim According to Plaintiffs, Idaho Power’s collateral estoppel, claim preclusion and statute of
limitations arguments fail because, by allegedly determining Plaintiffs’ QF status, the IPUC acted
without jurisdiction to do so and, as such, under “black letter law” that Plaintiffs fail to identify or
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cite, “concepts such as res judicata, claims preclusion and/or issue preclusion and statute of
limitations are irrelevant.” (Dkt. 47, § III.A, pp. 9-10.) Additionally, with respect to Idaho Power’s
statute of limitations argument, Plaintiffs also claim that there is no analogous state statute of
limitations that applies and that it would be impossible for Plaintiffs to comply with the limitations
period identified by Idaho Power and the deadlines set forth in FERC’s enforcement scheme. (Id.,
§ III.B, pp. 10-14.)
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,
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 a result, Idaho Power’s collateral estoppel, claim
preclusion and statute of limitations defenses all apply. And, for the reasons set forth in Idaho
Power’s moving papers relating to its collateral estoppel and claim preclusion defenses, neither of
which Plaintiffs address in their Response, Idaho Power’s motion should be granted on these
grounds.2
Idaho Power’s motion should also be granted on Idaho Power’s statute of limitations
argument because, contrary to Plaintiffs’ contention, there is indeed a time period within which
2 Other than arguing that Idaho Power’s collateral estoppel and claim preclusion defenses do not
apply because the IPUC lacked the jurisdiction to issue the rulings that it did, Plaintiffs do not
address, let alone substantively analyze, these defenses in their Response. (See Dkt. 47, § III.A, pp. 9-10.) Thus, the substance of Idaho Power’s arguments are unchallenged.
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Plaintiffs were required to appeal the IPUC’s orders and their failure to do so results in their claim
being time-barred. To avoid this result, Plaintiffs argue that 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.B pp.
10-14.) Plaintiffs’ argument is contrary to case law addressing this issue.
In N.Y. State Elec. & Gas Corp. v. Saranac Power Partners, LP, 117 F.Supp.2d 211, 246-
47 (N.D.N.Y. 2000) (“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 comply with this
limitations period in any state, federal or administrative forum. Specifically, not only have
Plaintiffs to date failed to appeal either of the IPUC’s orders in any state court in Idaho, but the
first attempt they made to challenge them was through their December 14, 2017 enforcement
petition to FERC, which was already two months after the limitations period had expired. (Dkt.
37, SF 13, 14.) Therefore, Plaintiffs’ claim is time-barred.
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Additionally, it is not impossible for Plaintiffs to comply with this 42-day limitations
period while also giving FERC the 60 days to which it is entitled to evaluate whether or not to
bring an enforcement action at a QF’s request. To the contrary, Plaintiffs could have (and should
have) filed their state court appeal and/or their FERC enforcement action request within that time
period, which would then trigger FERC’s 60-day response time. Finally, because the IPUC’s
decisions did not deal with the federal question of QF status, but were limited to the exclusive state
determination as to the proper avoided cost rate and purchase terms, such review and appeal could
only be made in the state jurisdiction. Consequently, for the reasons discussed above, Plaintiffs’
lawsuit and the claim asserted therein, are not only time-barred, but are also barred as an improper
collateral attack on final orders that have preclusive effect. Therefore, Idaho Power’s motion
should be granted.
D. Conclusion
Based upon the foregoing arguments, and those set forth in Idaho Power’s moving papers,
Idaho Power respectfully requests that this Court enter summary judgment in its favor on
Plaintiffs’ operative First Amended Complaint
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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