20111213Answer to Motion for Summary Judgment.pdf

2011 DEC 13 AM 10: 39
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Corp.
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De~JrHb~tilS,
Utilities Coinission
ashington Street
93702
Answer of Avista Corporation to Motion for Summary Judgment
IPUC Case No. IPC-E-1l-15
Dear Ms. Jewell:
Please find enclosed for filing an original and seven copies of the Answer of A vista
Corporation to Grand View Solar PV II, LLC's motion for summar judgment in the above-
referenced proceeding. Please let me know if you have any questions regarding this filing.
Sincerely,~
Michael G. Andrea
Senior Counsel
Enclosures
Michael G.Andrea (ISB No. 8308)
Senior Counsel
A vista Corporation
1411 East Mission, MSC-23
Spokane, W A 99202
Phone: [phone]
Facsimile: [phone]
REeF:
20 il DEC 13 AM ¡Od! 0
Attorney for A vista Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
GRAND VIEW SOLAR PV II, LLC
Complainant,
v.
)
)
) NO. IPC-E-1l-15
)
) ANSWER OF A VISTA
) CORPORATION TO MOTION FOR
) SUMMARY JUDGMENT
)
)
IDAHO POWER COMPANY
Defendant.
Pursuant to the Idaho Public Utilities Commission's ("Commission") Rules of
Procedure 57.03, intervenor Avista Corporation ("Avista") hereby submits its answer to
Grand View Solar PV II, LLC's ("Grand View") motion for sumar judgment
("Motion") fied on November 29,2011, in the above-captioned proceeding.
In its Motion, Grand View challenges a provision, or the Commission's potential
approval of a provision, in Idaho Power Company's ("Idaho Power") power purchase
agreement ("PP A") that, in effect, states that ownership of environmental attributes
(sometimes referred to as "renewable energy credits" or "RECs") wil be determined in
accordance with applicable law. Grand View further requests a declaratory order from
the Commission requiring Idaho Power to expressly disclaim any ownership interest in
RECs for Grand View's project.
Page - 1 ANSWER OF A VISTA CORPORATION
The provision of the PP A that is at issue does not assign ownership to either
Grand View or Idaho Power; rather, the provision states, in effect, that ownership of
RECs wil be determined in accordance with applicable law. Such language merely puts
paries on notice of what would occur if a dispute arose regarding ownership of RECs
even in the absence of such language-that is, if a dispute arses as to ownership of RECs
during the term of the PP A resolution of that dispute will be governed by applicable law.
Grand View also argues that Commission approval of the provision at issue would
constitute a taing in violation of the United States and Idaho Constitutions and would
violate the Dormant Commerce Clause of the United States Constitution. The
Commission has not approved the PPA and, therefore, Grand View's constitutional
arguents are premature. In any event, the provision at issue is not preempted by
PURP A and approval by the Commission would not violate any provision of the United
States or Idaho constitutions.
In requesting as par of its Motion a declaratory order requiring Idaho Power to
expressly disclaim ownership ofRECs generated or associated with Grand View's
project, Grand View is attempting to resolve in favor of Qualifying Facilities the long-
standing issue of ownership of RECs generated by or associated with Qualifying
Facilities in Idaho. To the extent that Grand View seeks a declaratory order that may
well resolve the issue of ownership of RECs generated by or associated with Qualifying
Facilities in Idaho, resolution of that issue necessarly wil necessarily require resolution
of many issues that are not appropriately resolved on sumar judgment. i To the extent
i Many of those issues were raised, but not resolved, in IPUC Case No. A VU-E-09-04. For
example, developers of Qualifying Facilties have previously argued that the Commission lacks jurisdiction
to determine that utilities own the RECs generated by or associated with Qualifying Facilties in Idaho.
That issue remains unresolved. In this case, however, Grand View seeks an order from the Commission
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that Grand View seeks a declaratory order from the Commission resolving the issue of
ownership of RECs in the State of Idaho, such request for declaratory order should be
properly made and noticed to ensure that there is a full and fair airing of the issues by all
interested paries?
As discussed herein, Grand View's Motion should be denied in its entirety. Even
assuming, without conceding, that Grand View was correct that the language in the PP A
that is at issue is in some way improper, Grand View's request for an order requiring
Idaho Power to expressly disclaim ownership of RECs associated with Grand View's
project is not properly raised and should be denied.
I. Background
A. Legal Background
The Federal Energy Regulatory Commission ("FERC") has determined that the
ownership of RECs is not controlled by the Public Utility Regulatory Policy Act of 1978
("PURP A,,).3 Rather, FERC has stated: '''States, in creating RECs have the power to
determine who owns the REC in the initial instance and how they may be sold or
traded(.)"4 Finally, FERC has held that "a state may decide that a sale of power at
wholesale automatically transfers ownership of the state-created RECs, (but) that
requirement must find its authority in state law, not PURPA."s
Ownership of RECs generated by or associated with Qualifying Facilities is not
settled in Idaho. In 2004, Idaho Power fied a petition with the Commission requesting a
that effectively concludes that Qualifying Facilties own such RECs without any discussion of the
Commission's jurisdiction to determine such ownership rights.
2 See Commission's Rules of Procedure 101-102 (setting forth procedure for petitions for
declaratory order).3 American Ref-Fuel Co., et al., 105 FERC ir 61,004, P 23 (2003), order on reh 'g, 107 FERC ir
61,016 (2004).4 Id
5 Id atP 24.
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declaratory order to determine the ownership of the marketable environmental attributes
associated with a Qualifying Facility when Idaho Power entered into a long-term, fixed
rate contract to purchase the energy produced by such project.6 In Order No. 29480, the
Commission found that "the issue presented by Idaho Power in its Petition d(id) not
present an actual or justiciable controversy in Idaho and (wa)s not ripe for a declaratory
judgment by this Commission.,,7
After the Commission issued Order No. 29480, Idaho Power filed an application
with the Commission in Case No. IPC-E-04-16 requesting approval of a Firm Energy
Sales Agreement between Idaho Power and J.R. Simplot Company ("Simplot
Agreement,,).8 Idaho Power argued that by filing the Simp lot Agreement it had presented
the Commission with a real case or controversy and, therefore, the issue of ownership of
RECs that the Commission declined to address in Order No. 29480 was now ripe.9 In
Order No. 29577, the Commission found that the regulatory landscape had not changed
and again declined to address the issue of ownership of RECs associated with Qualifying
Facilities.
10
In Case No. A VU-E-09-04, A vista fied a petition for a declaratory order to
resolve the issue of REC ownership in Idaho. However, that petition was withdrawn and,
therefore, the issue was not resolved in that proceeding. Accordingly, the issue of
ownership ofRECs associated with Qualifying Facilities remains unsettled in the State of
Idaho.
6 IPUC Case No. IPC-E-04-02.
7 Order No. 29480 at 16. The Commission did note that Idaho Power could negotiate the sale and
purchase of RECs, but the cost of such RECs could not be recovered as PURP A costs. ¡d. at 16-17.
Nevertheless, the Commission declined to directly address the issue of ownership of RECs raised by Idaho
Power's petition. See id.8 Order No. 29577 at i.
9 ¡d. at 3.
10 ¡d. at 5-6.
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B. Summary of Current Proceeding
On August 2, 2011, Grand View filed a complaint against Idaho Power in which it
alleges that Idaho Power violated PURPA, FERC's regulations and orders, and the
Commission's orders by, among other things, insisting on "language in the PPA that it
may be amended to account for subsequent changes in law relating to REC ownership."
Complaint ir 19; see also irir 15-28, Prayer ir 1. It appears that Grand View is specifically
taing issue with the following language in the PP A with Grand View:
Under this Agreement, ownership of Green Tags and Renewable Energy
Certificates (RECs), or the equivalent environmental attributes, directly associated
with the production of energy from the Seller's Facility sold to Idaho Power will
be governed by any and all applicable Federal or State laws and/or any regulatory
body or agency deemed to have authority to regulate these Environmental
Attibutes or to implement Federal and/or State laws regarding same.
See Motion at 5-6.
In its Complaint, Grand View fuher requested that the Commission issue a declaratory
judgment that Grand View "is entitled to a PP A with a clause in which Idaho Power
explicitly disclaims ownership of the environmental attributes." Complaint at 2, Prayer ir
2.
On September 6, 2011, Idaho Power filed an answer ("Answer") to Grand View's
Complaint. In its Answer, Idaho Power stated:
Contrar to Grand View's allegations, Idaho Power has not proposed language for
the PURP A contract that purorts to allocate ownership to either the QF or the
utilty and its customers. Instead, Idaho Power has proposed language that states
the ownership of environmental attributes wil be determined by the applicable
federal or state laws and/or the appropriate regulatory body or agency deemed to
have authority to regulate environmental attibutes or to implement federal and/or
state laws regarding the same.
Answer at 2.
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Idaho Power fuher stated:
Idaho Power does not believe PURP A, nor this state's implementation thereof,
requires it to disclaim any possible legal claim that it may have to the
environmental attributes associated with its purchase of power from a PURP A
Qualifying Faculty ("QF") for the next 20 years. In fact, such a disclaimer has
potentially costly consequences for Idaho Power's customers should the
Legislatue or other legal body determine some time during the proposed 20-year
term of the contract that the environmental attributes from the purchase ofQF
power in Idaho are in fact owned by the purchasing utility and its customers.
Answer at 1.
Avista's petition to intervene ("Petition") was fied on September 12, 2011. On
September 22,2011, the Commission issued Order No. 32362 granting Avista's Petition.
On November 29,2011, Grand View fied its Motion. In its Motion, Grand View
argues: (1) Grand View retains the RECs associated with its Qualifying Facility because
it is not compensated for those RECs; (2) the provision at issue is a reopener clause that
violates section 21O(e) ofPURPA and FERC's implementing regulations and orders; (3)
Commission approval of the provision at issue would constitute a taking; (4) Commission
approval of the provision would violate the Dormant Commerce Clause of the United
States Constitution; and (5) Grand View is being coerced into giving Idaho Power its
RECs. Grand View further requests that the Commission issue a declaratory judgment
that requires Idaho Power to disclaim ownership of all RECs associated with Grand
View's project. As discussed herein, Grand View's Motion should be denied.
II. Argument
In its Motion, Grand View challenges a provision, or the Commission's approval
of a provision, in Idaho Power's PP A that, in effect, states that ownership of RECs will
be determined in accordance with applicable law. In its Motion, Grand View fuher
Page - 6 ANSWER OF AVISTA CORPORATION
requests a Commission order requiring Idaho Power to expressly disclaim any ownership
interest in RECs for Grand View's project.
The provision of the PP A that is at issue does not assign ownership to either
Grand View or Idaho Power; rather, it merely states, in effect, the unemarkable
proposition that ownership of RECs wil be determined in accordance with applicable
law. The languge at issue is nota reopener, is not preempted by PURP A, and does not
violate any provision ofthe United States or Idaho constitutions. Finally, the fact that
applicable law wil be applied to determine ownership of RECs clearly does not
constitute coercion and, therefore, Grand View's coercion argument does not merit
fuher discussion herein.
A. Contrary to Grand View's Motion, Ownership of RECs is Currently
Unsettled in Idaho.
Grand View's first argument, and an underlying premise throughout its Motion, is
that Grand View is the default owner ofRECs generated or associated with Grand View's
project. E.g., Motion at 22 (stating, without authority, "Grand View clearly owns the
RECs for which Idaho Power wil not pay and which no law transfers to Idaho Power.").
Grand View is incorrect. As discussed above, ownership of RECs generated by or
associated with Qualifying Facilities is curently unsettled in Idaho and, therefore, it is
not at all clear that Qualifying Facilities are necessarily the default owners of any ör all
RECs that are or may be generated or associated with such Qualifying Facilities. 1 1
11 Although there are several potential outcomes to the issue of ownership ofRECs in Idaho, one
possible outcome that canot be discounted is that at some point the State ofIdaho, by legislative action for
example, could create RECs and clarify that all RECs generated by or associated with Qualifying Facilties
are automatically transferred to the utilties that purchase the energy from such Qualifying Facilities--ven
where utilties already have power purchase agreements with the Qualifying Facilties. This is precisely
what occured in Connecticut. See In re Riley Energy Corp., 2004 WL 3160409 (Conn. DPUC 2004).
Page - 7 ANSWER OF A VISTA CORPORATION
As noted above, FERC has held that "a state may decide that a sale of power at
wholesale automatically transfers ownership of the state-created RECs, (but) that
requirement must find its authority in state law, not PURP A.,,12 States therefore are
empowered to determine that RECs generated by or associated with Qualifying Facilities
transfer-at no cost in addition to the price paid for energy and capacity~to the utilities
that purchase the energy and capacity from such Qualifying Facilities.13
Grand View argues that, because Qualifying Facilities are not compensated for
RECs and no law conveys them to Idaho utilities free of additional charge, Qualifying
Facilities retain legal title to their project's RECs. Grand View selectively cites decisions
of the Oregon and Montana public utility commissions for the proposition that Qualifying
Facilities are entitled to be compensated for RECs separately from capacity and energy. 14
To the extent that Grand View is arguing that states do not have the authority to
determine that RECs generated by or associated with Qualifying Facilities transfer to
utilities automatically, and without additional separate compensation above the avoided
cost rates, with the sale of energy to such utilities, Grand View is demonstrably
incorrect. IS Moreover, it is clear that states that have not yet determined the appropriate
12 American Ref-Fuel Co., et a/., 105 FERC ir 61,004, PP 23-24 (2003).
Bid.
14 See generally Motion at 13-16.
15 See, e.g, ¡d.; In re The Riley Energy Corp., 2004 WL 3160409 (Conn. DPUC 2004);
Wheelabrator Lisbon, Inc. v. Connecticut Dep 't of Pub. Uti/. Control, 531 F.3d 183, 186 (2d Cir. 2008). It
is worth noting that Grand View misstates the issues raised by Avista's rehearing in Idaho Wind Partners
1, LLC, 136 FERC ir 61,174 (2011). Specifically, Grand View states in the "Legal Background" section of
its Motion that in that case "A vista requested FERC rule that the QF owns the RECs in a PURP A contract
only if it is expressly allowed under state law or under the terms of a PURP A contract." Motion at 9.
Grand View reiterates this misstatement in a parenthetical following its citation to the Idaho Wind Parers
proceeding on page 15 which mischaracterizes the FERC order as: "(rejecting Avista's attempt to have
FERC deem the utility the default owner ofRECs in PURPA contracts entered into in state's (sic) without
an express ownership rule)." That is patently incorrect. In its rehearing in that case, Avista noted that the
issue of ownership ofRECs is an issue for the States to decide in the first instance and requested that FERC
clarify that it did not preempt any such State determination. Avista DID NOT in any way request in that
proceeding that utilties be deemed the default owner of RECs or that FERC decide the issue of ownership
Page - 8 ANSWER OF A VISTA CORPORATION
disposition of RECs may later determine that, even under preexisting contracts with
Qualifying Facilities that were entered before RECs were created by the State, the
utilities own the RECs generated or associated with such Qualifying Facilities.
16
In fact, some states have determined that RECs generated by or associated with
Qualifying Facilities transfer automatically to the utilities that purchase the energy and
capacity from such Qualifying Facilities.17 For example, in In re The Riley Energy
Corp.,18 the Connecticut Light and Power Company ("CL&P") requested that the
Connecticut Department of Public Utility Control ("DPUC") issue a declaratory ruling
regarding the ownership of RECs under a pre-existing power purchase agreement entered
under PURP A. The power purchase agreement predated and therefore did not
contemplate ownership of RECs, but provided for the sale of the entire net electric output
of the facility. Importantly, in reaching its conclusion that the RECs transferred to the
utility under the applicable state law, the DPUC expressly noted that "the environmental
attibutes of renewable energy are not properly part of avoided costs set pursuant to
PURPA.,,19 Notwithstanding the fact that the Qualifying Facility was not separately
ofRECs. Grand View's characterization of Avista's rehearing in Idaho Wind Partners 1, LLC, 136 FERC
ir 61,174 (20 II), and citations to that case in its Motion are incorrect and misleading.16 See, e.g., In re The Riley Energy Corp., 2004 WL 3160409 (Conn. DPUC 2004) (holding that,
under Connecticut law, the RECs generated or associated with a Qualifying Facilty transferred to the
utilty that purchased the energy under a preexisting contract that did not contemplate the existence of
RECs).l7E.g., In re The Riley Energy Corp., 2004 WL 3160409 (Conn. DPUC 2004); Wheelabrator
Lisbon, Inc. v. Connecticut Dep 't of Pub. Uti/. Control, 531 F.3d 183, 186 (2d Cir. 2008) (affrming
decision of Connecticut Deparent of Public Utility Control requiring transfer ofRECs to electric utilty
under electricity purchase agreements and noting that "(t)he energy conveyed in the (PURPA) Agreement
possesses certin renewable energy attibutes that, since the signing of the Agreement, have become
independently tradable commodities known as 'renewable energy credits' ('RECs')."); In re the Ownership
of Renewable Energy Certifcates ("RECs''), 389 N.J.Super. 481, 484, 913 A.2d 825, 826 (2007)
(affirming Board of Public Utilties' decision that renewable energy certificates issued on pre-existing
contracts for the sale of electricity to public electric utility belonged to utility rather than the producer and
stating that RECs are a commodity).182004 WL 3160409 (Conn. DPUC 2004).
19 Id.
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compensated for the RECs, the DPUC found that, under the power purchase agreement
and state law, the RECs transferred to the utilty as par of the electrical output purchased
by the utilty?O The DPUC ordered the Qualifying Facility to provide the utility not only
all future RECs, but also any existing RECs and the proceeds from any prior REC sales
made by the Qualifying Facility.21 It follows that, contrary to Grand View's underlying
premise, Qualifying Facilities are not necessarily the default owners of any and all RECs
generated by or associated with their projects.
Whether the State of Idaho does or does not currently have law that vests
ownership of environmental attributes to a utility in an Idaho PURP A contract (see
Motion at 15-16) is of no moment. What is important is that the State of Idaho may
determine that ownership ofRECs generated by or associated with a Qualifying Facility
vests with the utilty that purchases the energy and capacity from such Qualifying
Facility.
B. The Provision of the PP A Providing that Ownership of RECs Wil Be
Determined In Accordance With Applicable Law Is Not a Reopener
and Is Not Preempted by PURPA.
Grand View argues that the provision in the PP A that states that ownership of
RECs wil be determined in accordance with applicable law is a reopener clause that
subjects Grand View to ongoing regulation and changed circumstances and, therefore,
approval of such provision by the Commission is preempted by section 21 O( e) of
PURPA. Motion at 16-20. Grand View's characterization of the provision at issue as a
reopener clause is incorrect. To be sure, if the ownership of RECs generated or
associated with Grand View's project is disputed, even in the absence of such provision,
20 Id.
21id.
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the ownership of such RECs will be governed by and determined in accordance with
applicable federal or state laws and/or any regulatory body or agency deemed to have
authority to regulate such RECs or to implement federal or state laws regarding same.
The provision of the PP A at issue does nothing more than put all parties on notice of that
fact.
As discussed above, ownership of RECs generated by or associated with
Qualifying Facilities is not settled in Idaho. If and to the extent new law or orders clarfy
curent law or otherwse settle the issue of ownership of RECs, ownership of RECs wil
be governed by such applicable law. That fact, however, does not constitute a reopener
that is in any way prohibited or preempted by PURP A.
C. Grand View's Arguments that Commission Approval of the Provision
of the PP A that States that Ownership of RECs Wil Be Determined in
Accordance With Applicable Law Would Violate the United States
and Idaho Constitutions Are Premature and Are Not Properly Raised
in this Proceeding.
Grand view argues that Commission approval of the provision of the PP A that
states that ownership of RECs wil be determined in accordance with applicable law
would (i) constitute a takings under the Fifth Amendment ofthe United States
Constitution and Aricle 1 Section 14 of the Idaho Constitution, and (ii) would violate the
Dormant Commerce Clause of the United States Constitution. Motion at 20-30. The
Commission has not yet approved the provision of the PPA. Moreover, this proceeding is
a complaint proceeding against Idaho Power. Grand View's arguments that Commission
approval of the PP A would constitute a taing or would violate the Dormant Commerce
Page - 11 ANSWER OF A VISTA CORPORATION
Clause are premature and are not appropriately raised in this proceeding.22 To the extent
that Grand View seeks a declaratory order from this Commission, such request should be
properly requested and noticed.23
Even assuming arguendo that such arguments are appropriately raised by Grand
View, such arguments are without merit. As a threshold matter, Grand View's
constitutional arguments are based on the premise that Grand View is necessarily the
default owner of the RECs generated by or associated with its Qualifying Facility. As
discussed above, that premise is incorrect~wnership of such RECs is curently
unsettled in Idaho. To be sure, to the extent that there are RECs generated by or
associated with Qualifying Facilities in Idaho, or the State ofIdaho at some point creates
such RECs, the State has the power to also determine that utilities wil own such RECs.24
Such determination would not constitute a taking.
25
Commission approval of a provision of a PP A that merely states that ownership of
RECs wil be determined in accordance with applicable law does not constitute a
taking.26 In any event, a determination of a taking in this case necessarily involves a fact-
specific inquiry that makes such a determination inappropriate on a motion for sumar
22 See Re Alternative Operator Services, 95 P.U.R. 4th 411 (1988) (Commission fmding that it had
not been presented with a controversy that would necessitate discuss and, therefore, declining to render an
advisory opinion).23 See Commission Rules of Procedure i 0 I-i 02 (providing for petitions for declaratory orders).
24 See American Ref-Fuel Co., et al., 105 FERC ir 61,004, PP 23-24 (2003); In re The Riley Energy
Corp., 2004 WL 3160409 (Conn. DPUC 2004); Wheelabrator Lisbon, Inc. v. Connecticut Dep't of Pub.
Util. Control, 531 F.3d 183,186 (2d Cir. 2008).25 See Wheelabrator Lisbon, Inc. v. Dep't of Pub. Util. Control, 283 Conn. 672, 699-700, 931 A.2d
159 (2007) (stating: "The trial cour concluded in the present case that the transfer of the certificates to the
utilty did not constitute an unconstitutional taking of propert from the plaintiff because the certificates
were not the plaintiffs propert. We have concluded that the trial cour correctly determined that it was
within the jurisdiction of the deparent to determine the ownership of the certificates and that the
deparent reasonably concluded that the utilty owned them. Accordingly, we agree with the trial court
that the department's decision could not constitute an unconstitutional taking under the state constitution
because no property owned by the plaintif had been taken." (Emphasis added.).26 See generally Id.; Lingle v. Chevron us.A. Inc., 544 U.S. 528 (2005) (discussing takings and in
particular regulatory takings).
Page - 12 ANSWER OF AVISTA CORPORATION
judgment.27 Finally, such provision does not discriminate against interstate commerce
and, therefore, Grand View's Dormant Commerce Clause argument is without merit.28
III. Conclusion
F or the forgoing reasons, A vista respectfully requests that the Commission deny
Grand View's Motion.
Respectfully submitted this 12th day of December 2011.
AVISTA CORPORATION
u
27 See Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 332
(2002) (stating that a takings claim in the regulatory context requires a fact specific inquir); see also Beus
v. Beus, 151 Idaho 235,254 P.3d 1231 (2011) (quoting J.R. Simplot Co. v. Bosen, 144 Idaho 611,613, 167
P.3d 748, 750 (2006), for proposition that '''Summar judgment can only be granted when there are no
genuine issues of material fact. "').28 See, e.g., Dep 't of Revenue of Ky. v. Davis, 543 U.S. 328, 338-39 (2008) (setting forth protocol
for Dormant Commerce Clause analysis).
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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of December 2011, true and correct copies of
the foregoing Answer were delivered to the following persons via E-mail, postage
prepaid regular, or postage prepaid overnight maiL.
Jean Jewell
Idaho Public Utilities Commission
472 W. Washington St.
Boise, ID 83702
Email: jean.jewell(êpuc.idaho.gov
Peter Richardson
Gregory M. Adams
Richardson & O'Leary
515 N. 27th St.
PO Box 7218
Boise, ID 83702
Email: peter(êrichardsonandoleary.com
greg(êrichardsonandoleary.com
Donovan E. Walker
Jason B. Wiliams
Idaho Power Company
1221 West Idaho Street
POBox 70
Boise, ID 83707
Email: dwalker(êidahopower.com
jwiliams(êidahopower .com
Michael G. Andrea
Page 1-CERTIFICATE OF SERVICE