20141028final_order_no_33155.pdf

Office of the Secretary
Service Date
October 28.2014
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE COMPLAINT )
AND PETITION OF IDAHO POWER )CASE NO.IPC-E-12-25
COMPANY FOR A DECLARATORY )
ORDER REGARDING THE FIRM ENERGY )
SALES AGREEMENT AND GENERATOR )
INTERCONNECTION AGREEMENT WITH )
NEW ENERGY TWO,LLC.)
_________________________________________________________________________________________
)
IN THE MATTER OF THE COMPLAINT )
AND PETITION OF IDAHO POWER )CASE NO.IPC-E-12-26
COMPANY FOR A DECLARATORY )
ORDER REGARDING THE FIRM ENERGY )
SALES AGREEMENT AND GENERATOR )ORDER NO.33155
INTERCONNECTION AGREEMENT WITH )
NEW ENERGY THREE,LLC.)
In November 2012,Idaho Power Company filed two separate “Complaints and
Petitions for Declaratory Order”regarding two Power Purchase Agreements (PPAs)between
itself and New Energy Two and New Energy Three,respectively.Idaho Power generally alleged
in its complaints that the New Energy projects (collectively “New Energy”)breached their
respective PPAs by failing to supply power to the utility.Rather than file an answer to the
consolidated complaints,New Energy filed a Motion to Dismiss for Lack of Subject Matter
Jurisdiction.In March 2013,the Commission issued interlocutory Order No.32755 denying
New Energy’s Motion to Dismiss.New Energy subsequently filed a Motion with the Idaho
Supreme Court requesting a permissive interlocutory appeal pursuant to Idaho Appellate Rule
12.The Court granted the Motion.
On June 17,2014,the Supreme Court issued its opinion in Idaho Power Company v.
New Energy Two,156 Idaho 462,328 P.3d 442 (2014).The Court held that the Commission has
jurisdiction to determine whether events of force majeure had occurred that excused New
Energy’s performance under its PPAs with Idaho Power.In particular,the Court declared that
the Commission “has authority to interpret contracts where the parties have agreed to permit the
Commission to do so.”Id.at 463,328 P.3d at 443.The Court also stated that the Commission
has the statutory authority “to determine whether a regulated utility has an obligation under
PURPA to purchase power from an applicant.”Id.at 465,328 P.3d at 445 (emphasis omitted).
ORDER NO.33155 1
Following issuance of the Remittitur,the Commission directed New Energy to file its answer to
the complaints by October 3,2014.The Commission also encouraged the parties to “explore
whether settlement [of this matter]is possible.”Order No.33126 at 3.
On October 8,2014,Idaho Power filed a “Motion and Stipulation”that was also
signed by counsel for New Energy.In their Stipulation,the parties agreed to resolve their
dispute and avoid further litigation.Based upon our review of the record,the Motion and
Stipulation,we grant the Motion and approve the Stipulation as set out in greater detail below.
THE MOTION AND STIPULATION
On October 7,2014,the parties executed a Settlement Stipulation.The Stipulation
recites that given the passage of time and the current status of this case,the parties decided to
resolve their dispute.In the Stipulation they agree to:(1)terminate the two PPAs;(2)request
that the Commission dismiss the two cases;and (3)that delay liquidated damages under the
PPAs shall be forfeited “and directed to customers pursuant to Order No.32625.”Stipulation at
¶4 (citing PPA §sS 5.3-5.6 and 5.8).
The parties recommend that the Commission approve the Stipulation in its entirety
pursuant to Commission Rule 274.The parties believe that approval of the Stipulation “is in the
public interest and that all of the terms and conditions are fair,just and reasonable.”Stipulation
at ¶5.The parties urge the Commission to approve the Stipulation and grant the Motion without
material change or modification.Finally,they agree that neither party shall appeal a
Commission Order approving the Stipulation or any issue resolved by the Stipulation.Id.at ¶6.
DISCUSSION AND FINDINGS
Rule 276 provides that the Commission “will independently review any settlement
proposed to it to determine whether the settlement is just,fair and reasonable,in the public
interest,or otherwise in accordance with law or regulatory policy.”IDAPA 31.01.01.276.The
proponents of a settlement carry the burden of showing that the proposed settlement is
reasonable.Id.In cases where the disagreement is essentially a private dispute between two
parties,the Commission may summarily accept the settlement stipulation.Rule 274,IDAPA
31.01.01.274.When reviewing a proposed settlement the Commission may accept,reject or
modify settlement provisions.Rule 276.
After reviewing the record in this matter including the joint Motion and Stipulation,
we find that the proposed settlement is reasonable and in the public interest.The Stipulation
ORDERNO.33155
represents a reasonable compromise of the positions held by the parties.Also,through the
Stipulation,further litigation is avoided and ratepayers will receive the benefits of liquidated
damages pursuant to the terms of the Stipulation and Order No.32625.
ORDER
IT IS HEREBY ORDERED that the Motion submitted by the parties is granted.The
Commission approves the Stipulation and accordingly dismisses Case Nos.IPC-E-12-25 and
IPC-E-12-26.
IT IS FURTHER ORDERED that Idaho Power apply the delay liquidated damages
provided for in the terminated PPAs and the Stipulation,in a manner consistent with Order No.
32625.
THIS IS A FINAL ORDER.Any person interested in this Order (or in issues finally
decided by this Order)or in interlocutory Orders previously issued in these Case Nos.IPC-E-12-
25 and IPC-E-12-26 may petition for reconsideration within twenty-one (21)days of the service
date of this Order with regard to any matter decided in this Order or in interlocutory Orders
previously issued in this case.Within seven (7)days after any person has petitioned for
reconsideration,any other person may cross-petition for reconsideration.See Idaho Code §61-
626.
ORDER NO.33155 3
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this t?
day of October 2014.
PAUL KJELLANDE&P4kESIDENT
,
MACK A.REDFORD,COMMISSIONER
MARSHA H.SMITH,COMMISSIONER
ATTEST:
Jean D.Jewell
COmmission Secretary
O:IPC-E-12-25 IPC-E-12-26 dh6
ORDERNO.33155 4