20050627Answer or Petition to Intervene.pdf

Peter J. Richardson ISB 3195
RICHARDSON & O'LEARY PLLC
99 East State Street
PO Box 1849
Eagle, Idaho 83616
Telephone: [phone]
Fax: [phone]
peter(fYri chrdsonando eary. com
Attorneys for Exergy Development Group of Idaho LLC
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iDAHO PUBLICUTILfTIES COHr1fSSIO1'1
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
IDAHO POWER COMPANY FOR AN ORDER)
TEMPORARILY SUSPENDING IDAHO
POWER'S PURP A OBLIGATION TO ENTERINTO CONTRACTS TO PURCHASE
ENERGY GENERATED BY WIND-
POWERED SMALL POWER PRODUCTION
FACILITIES
CASE NO. IPC-005-
ANSWER AND/OR
ETITI ONTO INTERVENE
OF EXERGY DEVELOPMENT
GROUP OF IDAHO LLC
COMES NOW Exergy Development Group of Idaho LLC by and through its attorney
of record, Peter J. Richardson, and pursuant to Rule 57 of the Rules of Procedure issued by the
Idaho Public Utilities Commission ("Commission ) and hereby lodges its Answer to Idaho
Power Company s ("Idaho Power" or the "Company ) above captioned Petition. In support
hereof Exergy says as follows:
Exergy files this Answer out of concern that the Commission may take substantive action
on Idaho Power s Petition at its Decision Meeting scheduled for tomorrow afternoon, June 28
2005. Exergy is concerned that this Commission may accept Idaho Power s unsubstantiated
assertions without first obtaining or allowing input from vitally interested and affected parties.
Exergy specifically requests that the Commission not take subsequent action until all interested
ANSWER AND/OR PETITION TO INTERVENE OF EXERGY
DEVELOPMENT GROUP OF IDAHO-
and affected parties have and an opportunity to comment. However, should the Commission
does take substantive action, then this pleading should be considered in full as an Answer as well
as a Petition to Intervene. Should the Commission decide only procedural questions at tomorrow
afternoon s meeting without unilaterally suspending the current avoided cost rates for wind, then
Exergy asks that this Answer be disregarded and considered as a simple petition for intervention.
NEITHER PURPA NOR THE FERC's REGULATIONS (18C.R. PART 292) AUTHORIZE
A STATE TO SUSPEND ELECTRIC UTILITY PURCHASE OBLIGATIONS UNDER
PURP A SECTION 210
Idaho Power s Petition asks this Commission to issue an order "temporarily suspending
Idaho Power s obligation, under ~~ 201 and 210 of the Public Utility Regulatory Policies Act
1978 ("PURP A")" Petition p. 1. While charged with implementing PURP A, this Commission
cannot repeal it. The federal government has completely preempted the field with respect to
mandating utilities ' purchase of power under PURP A. FERC v. Mississippi, 456 S. 742
(1982). Idaho Power s petition requests relief not authorized under federal law and this
Commission lacks jurisdiction to repeal a federal statutory requirement.
THE COMMISSION CANNOT CHANGE
RATES WITHOUT FIRST FINDING
THE NEW RATES ARE IN THE PUBLIC INTEREST
While FERC preempts this Commission s authority with respect to a utility s obligation
to purchase, PURP A specifically delegated to the states the power to implement that obligation
by administratively determining avoided cost rates. Those rates must be just and reasonable and
in the public interest. 18 C.R. ~ 292.304(a)(i) The rates must also be non-discriminatory
against qualifying facilities and small power production facilities. 18 C.R. 292.304(a)(ii). A
suspension" of Idaho Power s obligation to purchase would de facto set the avoided cost rate
for this utility at zero without the benefit of a record upon which to base that finding.
definition it would not meet the just and reasonable standard.
ANSWER AND/OR PETITION TO INTERVENE OF EXERGY
DEVELOPMENT GROUP OF IDAHO- 2
III.
A STAY OF IDAHO POWER'S PURP A
OBLIGATION WITHOUT A HEARING AND OPPORTUNITY
FOR INTERVENORS TO BE HEARD
IS A VIOLATION OF BOTH SUBSTANTIVE AND
PROCEDURAL DUE PROCESS
There are many potential PURP A developers who are relying on the predictability and
stability of this Commission s decisions regarding QF power sales to Idaho Power. They will be
irreparably harmed by a unilateral suspension of Idaho Power s obligation to purchase because
many have made substantial investments in turbine orders to be able to respond to rapidly
escalating steel prices and the looming expiration of the federal investment tax credit. Literally
millions of dollars of investment will be lost if this Commission suspends the existing avoided
cost structure. For that reason alone, this Commission must not act without first giving those
affected parties an opportunity to be heard.
IDAHO POWER'S PETITION
IS AN ILLEGAL COLLATERAL
IT ACK ON FINAL COMMISSION ORDERS
Idaho Power had the opportunity to petition this Commission for reconsideration of the
last avoided cost order that set the rates of which it now complains. It did not do so. Asking this
Commission to suspend those rates undermines the validity of that order through a collateral
attack disguised as a concern over wind integration issues. "The legislature has afforded the
orders of the Commission a degree of finality similar to that possessed by judgments made by a
court of law.Utah-Idaho Sugar Co. v. Intermountain Gas 100 Idaho 368, 597 P.2d 1058
(1979). Collateral attacks on final Commission orders are prohibited by Idaho Code ~ 61-625.
ANSWER AND/OR PETITION TO INTERVENE OF EXERGY
DEVELOPMENT GROUP OF IDAHO- 3
The Commission, is of course, permitted to change, modify or alter its final orders. It
may do so, however, only:
upon notice to the public utility affected, and after opportunity to be heard as
provided in the case of complaints
Idaho Code ~ 61-624.
Thus the statute sets forth a mandatory process for amending, altering or rescinding a
final order of the Commission. Suspension of a party s right to a benefit conferred by that order
is tantamount to altering the order itself and is therefore prohibited by Idaho law.
ETITI ON TO INTERVENE
Exergy Development Group of Idaho, LLC, is an Idaho limited liability company in the
business of, inter alia, developing wind, and other renewable resource electric generating
projects, for sale to electric utilities under PURP A. As such it is vitally interested in the outcome
of this proceeding and seeks an order from this Commission granting status as a party with all of
the rights appurtenant thereto.
Correspondence and pleadings relating to Exergy s participation in this matter should be
addressed to Mr. Richardson and Mr. James T. Carkulis at the address noted above.
Wherefore it is respectfully requested that this Petition to Intervene of Exergy
Development Group of Idaho be granted.
DATED this 27 day of June 2005.
RICHARDSON & O'LEARY PL C
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this day, June 27 2005, I caused a true and correctcopy of the foregoing ANSWER AND/OR PETITION TO INTERVENE OF EXERGY
DEVELOPMENT GROUP OF IDAHO LLC to be served by the method indicated below, andaddressed to the following:
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
POBox 83720
Boise I D 83720-0074
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Barton L. Kline
Idaho Power Company
PO Box 70
Boise ID 83707-0070
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John R Gale
Idaho Power Company
PO Box 70
Boise ID 83707-0070 .
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Monica Moen
Idaho Power Company
PO Box 70
Boise ID 83707-0070
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Scott Woodbury
Idaho Public Utilities Commission
424 W Washington Street
Boise ID 83702
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Signed:
Nina M. urtis
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OREGON ICIP
CERTIFICATE OF SERVICE -