20130305order_no_32755.pdf

Office of the Secretary
Service Date
March 5,2013
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.32755
INTERCONNECTION AGREEMENT WITH )
NEW ENERGY THREE,LLC.
______
)
On November 9 and 21,2012,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.In the 12-25 case.Idaho
Power alleged that New Energy Two’s proposed anaerobic digester at Swager Farms failed to
meet its scheduled commercial operation date of October 1,2012.In the 12-26 case,Idaho
Power alleged that New Energy Three’s proposed anaerobic digester at the Double B Dairy did
not meet its scheduled operation date of December 1,2012.Idaho Power asserted in both
complaints that the qualifying facilities (QFs)have “failed to take the necessary steps required to
bring the facilit[ies]online and operational by the dates required in [their power purchase
agreements (PPAs)]including,...failing to take steps required to secure the interconnection of
[their]proposed facilit[iesj to Idaho Power’s system.”Complaints at 3.
On December 4,2012,the Commission issued a Notice of the Complaints and
Petitions and ordered that the two cases be consolidated into a single proceeding.Order No.
32692.The Commission directed the Commission Secretary to serve copies of the complaints
on the respondents.On December 27,2012,New Energy Two and New Energy Three
(collectively “New Energy”)filed a “Motion to Dismiss for Lack of Subject Matter Jurisdiction.”
Idaho Power filed an answer to the Motion,and New Energy filed a reply to the answer.Rules
56-57.As outlined below,the Commission denies the Motion to Dismiss.
ORDER NO.32755 1
BACKGROUND
A.Interconnection and the PPAs
The background for these cases is taken primarily from the two complaints and is
summarized below.In October 2009,New Energy initiated discussions with Idaho Power to
begin the interconnection process for two anaerobic digester projects to be located at Swager
Farms and Double B Dairy.’Under the federal Public Utility Regulatory Policies Act (PURPA),
QFs are obligated to pay the costs of constructing the necessary interconnection facilities (or
transmission upgrades)between the QF project and the purchasing utility’s system.18 C.F.R.§
292.308.2
Following initial discussions,New Energy submitted a small generator
interconnection request to Idaho Power for each project.Both QF projects executed
interconnection Facility Study Agreements with Idaho Power in late October 2009.Order No.
32692 at 2.Idaho Power subsequently prepared and submitted separate Study Reports for each
project to New Energy.
In May 2010,Idaho Power and New Energy entered into two separate PPAs for each
of the biogas projects.3 Initially each biogas project was projected to sell 1.2 MW of power to
the utility.The PPAs contained avoided cost rates which were in effect prior to the issuance of
Order No.31025 (March 16,2010),and contained 1 5-year operating terms.The scheduled
commercial operation date (COD)for Swager Farms was October 1,2012,and the COD for
Double B was December 1,2012.On July 1,2010,the Commission approved the Swager Farms
and the Double B Dairy PPAs in Order Nos.32026 and 32027,respectively.
About the time Idaho Power submitted the PPAs for approval,Idaho Power and New
Energy continued their discussions regarding interconnection.In January 2011,New Energy
requested that the interconnection capacity for each of its projects be increased from 1.2 MW to
Double B subsequently authorized New Energy Three to act on its behalf in negotiating with Idaho Power.
2 Typically the interconnection process has three primary steps.First,a QF submits a small generator
interconnection (GI)request to the utility and the parties execute an Interconnection Facilities Study Agreement.
Second,once the Study Agreement is executed,the utility prepares a GI “Study Report”outlining the necessary
construction for interconnection.Finally,if the interconnection Study Report (including proposed routing,estimated
costs,and a construction schedule)is acceptable to the QF,then the parties execute a “Generator Interconnection
Agreement”(GIA)and the QF pays the utility so the utility can begin construction of the interconnection facilities.
The interconnection process and the GIA are separate and distinct from the PPA obligations to sell and purchase
QF power.In other words,the QF transaction requires the construction of both the interconnection facilities and the
QF’s generating plant.
ORDER NO.32755 2
2.0 MW.The parties subsequently executed new Facility Study Agreements and Idaho Power
then prepared a new Facility Study Report for each project.Drafts of the two Study Reports
were provided to New Energy.In late April 2011,Idaho Power issued its final Facility Study
Reports estimating that constructing the transmission interconnection for Swager Farms’2 MW
interconnection would cost approximately $1.71 million.4 Idaho Power’s final Facility Study
Report for Double B’s 2.0 MW capacity estimated that interconnection would cost
approximately $376,000.In May 2011,New Energy advised Idaho Power that Exergy
Development would be assisting New Energy with its two QF projects.Order No.32692 at 3.
The parties then had protracted discussions and communications leading up to Idaho Power
preparing the draft “Generation Interconnection Agreements”(GIA5)for each QF.
On May 9,2012,Idaho Power sent a draft GIA to New Energy/Exergy for the Double
B project and advised it that failure to submit all of the requested items and the executed GIA
“will cause the Generator Interconnection request to have been deemed withdrawn.”Double B
Complaint at ¶49.On June 19,2012,Idaho Power sent Double B a final GIA to be executed
and returned to Idaho Power no later than July 20,or “your Generation Interconnection
Application will be deemed withdrawn.”Id.at ¶53.Idaho Power insisted that the GIA was not
returned and that Idaho Power subsequently issued a deficiency notice that the GIA has been
deemed withdrawn and that the project has been removed from Idaho Power’s interconnection
queue.On August 28,2012,Idaho Power refunded Exergy’s interconnection deposit for the
Double B project.Id.at ¶54-5 5.
On March 22,2012,Idaho Power sent the draft GIA to Swager Farms.Swager Farms
at ¶58.In April 2012,Exergy asked that Idaho Power “revisit”the interconnection at a lower
capacity of 0.8 MW.Id.at ¶59.The parties executed a “Re-Study”Feasibility Study
Agreement which estimated an interconnection cost for the reduced capacity of $225,000.Id.at
¶61.On September 14,2012,Idaho Power sent the final GIA to Swager Farms at the lower 0.8
MW interconnection.Id.at ¶66.The cover letter for the Swager Farms GIA stated that Idaho
Power “must have the executed GIA and funding no later than October 1,2012,in order to
complete construction by this date.”Id.(emphasis original).In an e-mail dated September 20,
2012,Idaho Power warned Exergy that if the GIA and the required funding is not received by
The final Study Report also noted that interconnection costs for the smaller 1.2 MW interconnection would cost
approximately $575,000.
ORDER NO.32755 3
October 1,2012,“it will not be possible to complete the required interconnection work before
the end of the year 2012.”Id.at ¶68.Idaho Power alleged that Swager Farms did not execute
the GIA and did not pay for the interconnection.
B.Force Majeure
On September 28,2012,Swager Farms and Double B provided a joint “Notice of
Force Majeure”to Idaho Power.In accordance with Section 14 of their respective PPAs,the QF
projects notified the utility that they could not perform under their respective Agreements
because of “the occurrence of a Force Majeure event.”Swager Complaint at Tab 56;Double B
Complaint at Tab 36.More specifically,the QFs alleged that the Commission’s generic PURPA
investigation (GNR-E-1 1-03)and other “pending proceedings”caused the force majeure event.
They insisted that the Commission’s investigation regarding the ownership of renewable energy
credits (REC5)and the issue of “curtailment”caused lenders to be “unwilling to lend in Idaho
pending the outcome of these proceedings.”Id.Thus,with “no financing available,...it [is]
impossible for [the QFs]to perform [their]obligation”under the PPAs.Id.at ¶4.
THE COMPLAINTS AND PETITIONS
In its Complaints and Petitions,Idaho Power alleged that Swager Farms and Double
B failed to meet their obligations under their PPAs of providing power to Idaho Power by
October 1,2012,and December 1,2012,respectively.Swager Complaint at ¶2,Double B
Complaint at ¶2.Idaho Power maintained that the Commission has the authority to issue
declaratory orders pursuant to the Uniform Declaratory Judgments Act,citing Idaho Code §10-
1203.Swager at ¶76,Double B at ¶63 citing Utah Power &Light Co.v.Idaho PUC,112 Idaho
10,12,730 P.2d 930,932 (1987).
Idaho Power maintained that the Commission has jurisdiction over this matter
because:(1)the parties have agreed to submit disputes under the PPA to the Commission;(2)the
dispute requires an interpretation of the PPAs approved by the Commission;(3)the Idaho
Supreme Court allows the Commission to interpret contracts where parties agree to allow the
PUC to settle a dispute;(4)the Commission has authority over the generator interconnection
process;and (5)the allegations of force majeure pertain to Commission proceedings.Swager at
¶f 76,89,Double B at ¶J 63,75.Idaho Power asserted that it and New Energy “agreed to the
Commission’s jurisdiction regarding any and all disputes under the [PPA].”Swager at ¶79,
ORDER NO.32755 4
Double B at ¶65.Idaho Power relies on Section 19.1 of the PPAs executed by both Idaho Power
and the QFs which provides:
Disputes —All disputes relating to or arising under this Agreement,including,
but not limited to,the interpretation of the terms and conditions of this
Agreement,will be submitted to the Commission for resolution.
Id.(Swager &Double B Tab 1 at p.24)(emphasis added).Idaho Power asserted that the parties’
agreement in Section 19.1 above —to submit all disputes involving contract interpretation to the
Commission —falls within an exception to the “general rule”that generally the interpretation of
contracts is a matter for the courts.Swager at ¶77,Double B at ¶63,citing Ajion Energy v.
Idaho Power Co.(“Ajion IV”),111 Idaho 925,929,729 P.2d 400,404 (1986);Bunker Hill Co.
v.Washington Water Power Co.(“Bunker Hill I”),98 Idaho 249,252,561 P.2d 391,394
(l977).’
Given that the QF projects have failed to meet their scheduled operation dates,Idaho
Power claimed that they are in material breach of their respective PPAs.Idaho Power also points
to Section 5.4 of the respective PPAs that upon a material breach by New Energy,Idaho Power
may terminate the PPAs at any time.Swager at ¶86,Double B at ¶72.Consequently,Idaho
Power requested that the Commission issue an Order declaring that Idaho Power may terminate
the PPAs due to the breach and recover delay damages.Id.
In summary,the utility requested that the Commission find and declare:
1.That the Commission has jurisdiction “over the interpretation and
enforcement of the [PPAs]and the GIA[s]”;
2.That New Energy/Exergy’s “claim of force majeure does not ...excuse
[the QFsj failure to meet the amended Scheduled Operation Date for the
[PPAs]”;
3.That New Energy/Exergy have failed to place Swager Farms and Double
B in service by their respective scheduled commercial operation dates of
October 1,2012,and December 1,2012;
4.That Idaho Power may terminate the PPAs if Swager Farms and Double B
failed to cure their defaults under their respective PPAs by December 30,
2012,and March 1,2013;
5.That under the terms of the PPAs Idaho Power is entitled to an award of
liquidated damages;and
Idaho Power also noted that New Energy’s force majeure notice specifically refers to Section 19.1 of the PPAs.
ORDER NO.32755 5
6.Award any further relief to which Idaho Power is entitled.
Swager Farms Complaint at 37;Double B Complaint at 27-28.
NEW ENERGY’S MOTION TO DISMISS
On December 27,2012,New Energy filed a timely “Motion to Dismiss for Lack of
Subject Matter Jurisdiction.”New Energy advanced two primary arguments.First,New Energy
maintained that the Commission does not possess the necessary jurisdiction to interpret and/or
enforce contracts.In particular,New Energy noted the Idaho Supreme Court has stated the
“general rule”is that the
construction and enforcement of contract rights is a matter that lies in the
jurisdiction of the courts and not the public utilities commission.This is true
notwithstanding that the parties are public utilities or that the subject matter of
the contract coincides generally with the expertise of the commission.If the
matter is a contractual dispute,it should be heard by the courts.
Lemhi Telephone Co.v.Mountain Slates Tel.&Tel.Co.,98 Idaho 692,696,571 P.2d 753,757
(1977);Bunker Hill Co.v.Washington Water Power Co.(“Bunker Hill II”),101 Idaho 493,494,
616 P.2d 272,273 (1980).
Although New Energy acknowledged that the Idaho Supreme Court has held
“PURPA was intended to confer upon state regulatory commissions responsibilities not
conferred under state law,”it argued that “PURPA provides no independent basis of authority to
interpret executed QF contracts.”Motion at 7-8 quoting Afion Energy v.Idaho Power Co.
(“Ajion 1/111”),107 Idaho 781,785,693 P.2d 427,431 (1984).Consequently,New Energy
asserted that the interpretation of the PPAs is a matter governed by state contract law “and each
particular state’s laws govern the proper forum for such contract disputes.In Idaho,the
Commission simply does not have ongoing jurisdiction over any contract disputes.”1d at 8.
New Energy also conceded that the Supreme Court recognizes exceptions to its
general rule that the Commission does not have jurisdiction over contract disputes.Motion at 9-
10.In Afton IV,the Court reiterated the exception to the general rule is that the Commission may
“interpret an imprecise contract because ‘the parties agreed to let the PUC settle this dispute and
there is substantial evidence in the record to support the Commission’s decision.”111 Idaho
at 929,729 P.2d at 404,citing Bunker Hill I,98 Idaho at 249,561 P.2d at 391.6 However,New
6 The lineage of the Afton cases is sometimes confusing.4/ion I was issued in January 1984.Idaho Power
subsequently petitioned for rehearing and the case was re-argued.In July 1984,the Court issued a subsequent
ORDER NO.32755 6
Energy noted the A/ion IV Court found that the QF contract “between Afton and Idaho Power
does not fall within any of the exceptions [to the general rulej.Idaho Power and Afton have not
agreed to allow the Commission to interpret the contract.”Id.
Second.New Energy asserted it has not consented to the Commission’s jurisdiction to
interpret and enforce the two PPAs.In particular,New Energy insisted the dispute resolution
provision in each PPA does not confer jurisdiction upon the Commission.Although Section
l9.1 of each PPA requires that all disputes be submitted to the Commission,New Energy
argued that the Commission “has consistently disavowed the ability of the parties to unilaterally
confer jurisdiction”on the Commission.Motion at 10.More specifically,New Energy relies on
two prior Commission Orders cautioning PURPA parties “that jurisdiction may not be conferred
upon the Commission by contractual stipulation.”Motion at 10-11,citing Order Nos.21359 at
1;24674 at 4.Consequently,New Energy urged the Commission to decline jurisdiction and
grant its Motion to Dismiss Idaho Power’s Complaints and Petitions for Declaratory Order.
Motion at 12.
IDAHO POWER RESPONSE
On January 10,2013,Idaho Power filed a response to the Motion to Dismiss.
Although Idaho Power conceded that the “general rule”normally requires that the interpretation
and enforcement of a contract is a matter for the courts,it asserted that the Court has recognized
exceptions to the general rule.More specifically,Idaho Power maintained that the Supreme
Court in Afton IV allowed the Commission to interpret a contract because “the parties have
agreed to submit a dispute involving contract interpretation to the Commission.”Response at 5
citing 111 Idaho at 929,729 P.2d at 404;Bunker Hill 1,98 Idaho at 252,561 P.2d at 394.
Idaho Power also pointed out that the Court created another exception to the general
rule in McNeal v.Idaho FUC,142 Idaho 685,132 P.3d 442 (2006).In McNeal,the Idaho
Supreme Court found that the Commission had authority to interpret an interconnection
agreement between two telecommunications carriers.After citing the general rule that contract
interpretation and enforcement are normally matters for the courts,the Idaho Supreme Court held
that the Commission does have authority to interpret and enforce interconnection agreements
opinion (4/ion 11)at which time Afton petitioned for rehearing.Finally,in December 1984,the Court withdrew
4/ion II and issued a third opinion (Ajion III)that modified the Court’s Ajion I opinion.Consequently,the opinion
is often cited as “A/ion I/Ill.”See 4/ion IV,Ill Idaho 927 nI,729 P.2d 402 nI.
Supra,p.5.
ORDER NO.32755 7
between telecommunications carriers.Response at 4 citing McNeal,142 Idaho at 689,132 P.3d
at 446.Like the Commission’s authority under the federal Telecommunications Act to interpret
interconnection agreements,Idaho Power insisted that PURPA grants the Commission “the
jurisdiction and authority to interpret the force majeure clause in the [PPAs].”Response at 5.
Idaho Power also asserted New Energy had agreed in the PPAs to submit all contract
disputes to the Commission.In particular,the utility reiterated that Section 19.1 of the PPAs
provides that “all disputes relating to or arising under this Agreement,including,but not limited
to,the interpretation of the terms and conditions of this Agreement,will be submitted to the
Commission for resolution.”Id.Idaho Power also insisted that Section 7.7 of each PPA
provides that the Commission will have continuing jurisdiction over the Agreement.Id.
Idaho Power next argued that there is a statutory basis for the Commission’s
jurisdiction over this dispute.In particular,Idaho Power insisted that Idaho Code §61-501
provides the Commission with the authority to supervise utilities and to do “all things necessary
to carry out the spirit and intent”of the Public Utilities Law.In addition,Idaho Code §§61-502
and 61-503 provides the Commission with jurisdiction over contracts affecting rates and the
power to investigate a single contract,respectively.“The [PPAs]at issue are utility contracts
which affect rates as defined under §6 1-502 and which the Commission has specific authority to
investigate under §6 1-503.”Response at 6-7.
Finally,Idaho Power asserted “PURPA itself grants the Commission jurisdiction.
.“Id.at 7.Idaho Power declared that our Supreme Court has stated that “it is clear that PURPA
was intended to confer upon state regulatory commissions responsibilities not conferred under
state law.”Id.quoting Afton I/Ill,107 Idaho at 784-85,693 P.2d at 430-3 1.Consequently,
Idaho Power insisted that “the present dispute between a utility and [New Energy]over a
PURPA matter is seemingly precisely what FERC envisioned when it promulgated 18 C.F.R.§
292.401(a).”Id.Combining the federal authority with the specific state statutory authority
“creates an explicit grant of authority to the Commission to interpret a PURPA contract.”Id.at
8.
NEW ENERGY REPLY
On January 16,2013,New Energy filed a reply to Idaho Power’s response.New
Energy takes issue with Idaho Power’s reliance on the exceptions to the general rule set out in
the McNeal case.More specifically,New Energy distinguishes the McNeal case which is
ORDER NO.32755 8
premised upon the federal Telecommunications Act.In McNeal,the Supreme Court cited
Southwestern Bell Telephone Co.v.PUC of Texas,208 F.3d 475 (5th Cir.2000),for the
proposition that the Telecommunications Act grants state commissions the authority to interpret
and enforce the provisions of interconnection agreements that state commissions have approved.
New Energy Reply at 2.However,New Energy asserts that Idaho Power does not cite to any
FERC or PURPA case law allowing state commissions to decide and enforce disputes under
PURPA.New Energy argues that Idaho Power has not cited to any PURPA case “because there
are none.”Reply at 3.
While it recognizes that the PPAs contain language “to the effect that disputes would
be submitted to the Commission for resolution,”New Energy reiterates that the Commission’s
prior Orders have declined to exert jurisdiction.Id.at 6.Consequently,New Energy urges the
Commission to grant its Motion to Dismiss and “defer the common breach of contract claims to
the proper forum for resolution.”Id.at 7.
COMMISSION FINDINGS AND DISCUSSION
In its Motion,New Energy asked us to dismiss Idaho Power’s Complaints and
Petitions for Declaratory Order arguing that the Commission does not have the jurisdiction to
resolve disputes regarding PPAs.It is well settled that the Commission exercises limited
jurisdiction and nothing is presumed in favor of its jurisdiction.Utah Power &Light Co.v.
Idaho PUC,107 Idaho 47,52,685 P.2d 276,281 (1984).The Commission may determine
whether it possesses jurisdiction over a particular matter.Id.However,once jurisdiction is
clear,the Commission is allowed all powers necessary to enable it to carry out its
responsibilities.Washington Water Power Co.v Kooienai Environmental Alliance,99 Idaho
875,879,591 P.2d 122,126 (1979).
Both parties recognize and we agree that the general rule is that “[gjenerally,the
construction and enforcement of contract rights is a matter which lies in the jurisdiction of the
courts and not in the public utilities commission....If the matter is a contractual dispute,it
should be heard by the courts.”Ajion IV,111 Idaho at 928,729 P.2d at 403 (emphasis added);
Lemhi Telephone,98 Idaho 692,696,571 P.2d 753,757 (1977);McNeal,142 Idaho 685,132
P.3d 442 (2006).However,the Supreme “Court has recognized exceptions to this [general]
rule.”4/ion IV,111 Idaho at 924,729 P.2d at 404.In McNeal,the Court explained that it has
“been careful to use words such as ‘generally’and ‘normally’[when stating the general rule]and
ORDER NO.32755 9
also,to provide for exceptions to the norm.”142 Idaho at 689,132 P.3d at 446 (emphasis
added).More specifically,the Court held that one exception to the general rule is where “the
parties agreed to let the PUC settle th[e]dispute A/Ion IV,111 Idaho at 929,729 P.2d at
404 quoting Bunker Hill I,98 Idaho at 242,561 P.2d at 394.New Energy declared that it has not
consented to allowing the Commission to resolve this contract dispute,while Idaho Power
believes that the exception to the general rule is applicable in this instance.
Based upon our review of the pleadings,the underlying record,and the case law,we
find that the “consent”exception (where parties agree to let the Commission settle a contractual
dispute)is controlling in this instance.More specifically,we find that the QFs and Idaho Power
have expressly agreed in their PPAs to submit disputes arising under their respective PPAs to the
Commission for resolution.As pointed out by Idaho Power,each PPA contains a provision
granting the Commission jurisdiction over this matter.Section 19.1 of each PPA provides:
Disputes —All disputes related to or arising under this Agreement,including,
but not limited to,the interpretation of the terms and conditions of this
Agreement,will be submitted to the Commission for resolution.
Swager at Tab 1,Double B at Tab 1 (emphasis added).Unlike the parties in Aflon IV,we find
that New Energy and Idaho Power have expressly agreed that “[a]ll disputes related to or arising
under this Agreement ...will be submitted to the Commission for resolution.”PPA at §19.1.
New Energy Two and New Energy Three signed their respective PPAs containing Section 19.1
on May 21,2010.We further find this provision of the PPA to be clear and unambiguous.“An
unambiguous contract will be given its plain meaning.”Shawver v.Huckleberry Estates,140
Idaho 345,361,93 P.3d 685,692 (2004).In this case,the dispute between the parties is “related
to or arising under this Agreement.”In addition,New Energy’s force majeure notice specifically
refers to Section 14 of the PPAs —clearly relating to the PPAs.Swager at Tab 56,Double B at
Tab 36.Moreover,each PPA provides in Section 20.1 that “This Agreement is subject to the
jurisdiction of those governmental agencies having control over either party of this Agreement.”
Swager at Tab 1,Double B at Tab 1.
We further find that there is a statutory basis for our jurisdiction in this matter.Just
as in the case where QFs may bring complaints against utilities under PURPA (Afton ]/JIJ,107
Idaho at 781,693 P.2d at 427),the Commission is authorized under Idaho Code §61-621 to hear
ORDER NO.32755 10
complaints made by public utilities.8 As the Idaho Supreme Court noted in Afton 1/111.Section
61-612 “gives the Commission jurisdiction to hear complaints against public utilities alleging
violations of rules,regulations or any provision of laws:I.C.§6 1-502 gives the Commission
jurisdiction to determine reasonable rates,including rates collected under contracts;and I.C.§
6 1-503 gives the Commission power to investigate a single contract 107 Idaho at 784,693
P.2d at 430.The PPAs at issue in this case directly affect Idaho Power’s rates through the annual
Power Cost Adjustment (PCA).Idaho Code §61-502,Kootenai,99 Idaho at 880,591 P.2d at
l27.The United States Supreme Court also noted in FERC v.Mississippi.PURPA and the
[FERC]implementing regulations simply require the [state regulatory]authorities to adjudicate
disputes arising under [PURPA].Dispute resolution of this kind is the very type of activity
customarily engaged in by the Mississippi [Public Utilities]Commission 456 U.S.742,
760,102 S.Ct.2126.2138 (1982)(emphasis added);A/ion i/ill,107 Idaho at 789.693 P.2d at
435 (emphasis original).
New Energy also relies on two prior Orders of this Commission to support its
argument that the Commission does not have jurisdiction in this matter.In its reply,New Energy
concedes that “While the instant parties do have language in their Agreements to the effect that
disputes would be submitted to the Commission for resolution,the Commission has already
disavowed the ability of the parties to unilaterally confer jurisdiction on [the Commission].”
Reply at 6.In particular,New Energy refers to a 1993 Order where the Commission cautioned
contracting parties regarding the Commission’s jurisdiction.Order No.24674 in Case No.IPC
E-92-32.In that case,the parties (Idaho Power and Glenns Ferry Cogeneration)had executed a
PPA that contained identical language to the dispute resolution provision at issue in this case.In
reviewing the language in the Glenns Ferry PPA,the Commission
reminds the parties that jurisdiction may not be conferred on the Commission
by contractual stipulation.The authority and jurisdiction of the Commission
is restricted to that expressly and by necessary implication conferred upon it
by enabling statutes.The nature and extent of the Commission jurisdiction to
resolve actual disputes will be determined by the Commission on an
Idaho Code §61-621 states:“Any public utility shall have a right to complain on any grounds upon whichcomplaintsareallowedtobefiledbyotherparties
The Idaho Supreme Court in AJon I/I/I observed:“Contracts entered into by public utilities with [QFs]ordecisionsbyutilitiesnottocontractwith[QFs]have a very real effect on the rates paid by consumers both at presentandinthefuture.”107 Idaho at 789.693 P.2d at 435 (emphasis added).
ORDERNO.32755 11
individual case-by-case basis notwithstanding [the dispute resolution
provision]of the Agreement.
Order No.24674 at 4 (emphasis added).Despite expressing concern about the language,the
Commission approved the Glenns Ferry contract including the dispute resolution provision.Id.
We find New Energy’s reliance on this prior case is misplaced.As noted above,the
Commission stated that the nature and extent of our jurisdiction “will be determined ...on an
individual case-by-case basis.”In the Glenns Ferry case,the Commission did not foreclose
exercising jurisdiction;it stated that the scope of its jurisdiction “to resolve actual disputes will
be determined ..on an individual case-by-case basis.”For the reasons outlined above,the
Commission finds in this particular case that it has jurisdiction to resolve this contract dispute
pursuant to the consent exception to the “general rule.”
In addition and without addressing the merits of the case,the Commission also notes
that New Energy alleges that the occurrence of the force majeure event concerned this
Commission’s generic PURPA investigation and possibly other PURPA proceedings.Because
New Energy’s force majeure allegation arises from Commission proceedings,we find that the
Commission is well-suited to review these allegations.Finally,we note that because “regulatory
bodies perform legislative as well as judicial functions in their proceedings,they are not so
rigorously bound by the doctrine of stare decisis that they must decide all future cases in the
same way as they have decided similar cases in the past.”McNeai v.Idaho PUC,142 Idaho at
690,132 P.3d at 447;Washington Water Power Co.v.Idaho PUC,101 Idaho 567,579,617 P.2d
1242,1254 (1980).
In summary,the Commission finds in this particular case that it has jurisdiction to
resolve the contract dispute under the consent exception to the general rule.Having found
jurisdiction in this matter,New Energy Two and New Energy Three should file their
consolidated answer (if any)to the Complaints and Petitions within 14 days of the service date of
this Order.
ORDER
IT IS HEREBY ORDERED that New Energy Two and New Energy Three’s Motion
to Dismiss for Lack of Subject Matter Jurisdiction is denied.
IT IS FURTHER ORDERED that New Energy Two and New Energy Three file their
answer (if any)to the Complaints and Petitions within 14 days of the service date of this Order.
ORDER NO.32755 12
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this
dayofMarch2Ol3.
PAUL KJELA R,PRESIDENT
MACK A.REDFORD,CQMMISSIONER
MARSHA H.SMITH,COMMISSIONER
ATTEST:
Jeâp D.JeweI,
Commission secretary
O:IPC-E-I 2-251PC-E-12-26 dh3
ORDER NO.32755 13