20130723Petition for Reconsideration.pdf

Benjamin I. Otto (ISB No. 8292)
710 N 6'h Street
Boise,ID 83701
Ph: [phone]x12
Fax [phone]
[e-mail]
Attorney for the Idaho Conservation league
IN THE MATTER OF THE
APPLICATION OF IDAHO POWER
COMPANY FOR AUTHORITY TO
MODIFY ITS NET METERING
SERVICE AND TO INCREASE THE
GENERATION CAPACITY LIMIT.
-! : ji j---.
?i;1J_'r. 2:j F;i I: c2
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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CASE NO. IPC-E-12-27
IDAHO CONSERVATION LEAGUE'S
PETITION FOR RECONSIDERATION
The Idaho Conservation League ('ICL"), pursuant to I.C. S 61-626 and IDAPA 31.01.01.331 -
332 submits this Petition for Reconsideration. In Order 32846, the Commission, contrary to legal
standards and state policy, reduced ICL's witness's hourly rate by over 58olo and recalculated ICI's
intervenor funding award. Because this decision does not align with the plain language or prior
Commission and Supreme Court interpretations of the intervenor funding statue, I.C. S 61-
617A,ICL urges the Commission to reconsider and award ICL's full intervenor funding request.
ICL is prepared to provide further briefing or argument if the Commission so desires, otherwise
our argument rests on these written comments. See IDAPA 31.01.01.331.03.
I. Grounds for Reconsideration
Reconsideration is appropriate when a Commission Order "is unreasonable, unlawful,
erroneous or not in conformitywith the law[.]" IDAPA 31.01.01.331.01.Idaho Code empowers
the Commission to award intervention costs "to encourage participation at all stages of all
proceedings . . . so that all affected customers receive full and fair representation in those
proceedings." I.C. S 6l-617A. To be eligible for an award intervenors must demonstrate five
factors: (a) material contribution; (b) costs are "reasonable in amount"; (c) significant hardship;
ICL Petition for Reconsideration
IPC-E-t2-27
(d) recommendations differ materially from the Staff; and (e) the issues concern the general body
of consumers.Id.Idaho law declares intervenor funding awards represent "the policy of this state
to encourage participation at all stages of all proceedings . . . so that all affected customers receive
full and fair representation[.]" Id.; Idaho Fair Share v. Idaho Public Utilities Comm'n,l 13 Idaho
959,963,751 P.zd lO7 , 110 ( 1988).t By reducing ICL's expert witness's hourly fee by 58% the
Commission did not conform to the factors in the intervenor funding law, which provides costs
must be "reasonable in amount", nor act in conformity with the declared policy of Idaho to
encourage full and fair representation in regulatory proceedings. Because Order 32846 does not
conform to applicable law, the Commission should reconsider and award ICL the entire
intervenor funding request as detailed in Attachment A.
II. Argument
The Commission abused their discretion by reducing ICL's expert witness's hourly rate
without balancing this with the qualifications of the expert or the number of hours expended.
The statute provides the Commission discretion as to whether and to what extent to grant any
award. I.C. S 6L-617A. This discretion is reviewed for abuse. Building Contractors Ass'n of
Southwestern ldaho v. Idaho Public Utilities Comm'n,151 Idaho 10,253 P.3d 684,691
(2011)(BCA). Similar to the award of attorney fees under I.C. S 12-121, an abuse of discretion
review asks whether the Commission: ( I ) "perceived the issue as one of discretio n"; (2) "acted
within the outer boundaries of its discretion and consistently with the legal standards applicable
to the specific choices available to it"; and (3) "reached its decision by the exercise of reason."
Bingham v. Montane Resource Associates, I 33 Idaho 420, 427, 987 P.2d 1035, 1042 ( I 999).
The decision to award intervention costs is discretionary, but bounded by five factors the
Commission shall consider. I.C.S 6l-617A; IDAPA 31.01.01.165; BCA,253P.3d 691. The
I Overruled on other grounds by /.n. Simplot Co. Inc. v. Idaho State Tax Comm'n,120 Idaho 849,
862, 820 P .2d t206, t2L9 (t991).
ICL Petition for Reconsideration 2
rPC-E-t2-27
Commission found ICL met four of the five standards: (a) material contribution to the decision;
(b) recommendations that differed materially from the Staff; (c) addressed issues concerning the
general body ofratepayers; and (d) financial hardship absent an award. Order 32846 at 18.
However, the Commission found ICL's expert witnesses hourly rate unreasonable and applied a
58.33o/o discount. Id.But the applicable legal standard asks whether the request is "reasonable in
amount". IDAPA 31.01.01.162.03. ICL's request, while based on a relatively high hourly rate, is
reasonable in amount because it covers a relatively small number of hours in light of the
procedure and complexity of the case. [CL's request covers 31 hours including supporting ICL's
initial review, presentation at public workshops, and settlement negotiations, as well as directly
producing testimony and assisting during the technical hearing.
Recognizing ICL's expert witness Mr. R. Thomas Beach charged a relatively high rate ICL
used several means to ensure the overall amount would be reasonable. First, ICL considered
other experts, but there are very few experts in the country well versed in conducting cost/benefit
analysis for net metering programs. With his extensive background, Mr. Beach could assist ICL in
relatively few hours compared to other experts. Further, Mr. Beach's analpical model had been
accepted by other state Commissions. Second, ICL choose to address only one of several issues
raised in this proceeding. But all of these issues raised affected the interests of ICL and our
membership. By limiting our testimony to only the cosVbenefit issues ICL risked relying on other
parties to address issues that were essential to full and fairly representing our interests. Third, ICL
carefully designed our fee agreement to limit the number of hours Mr. Beach would incur by, for
instance, requiring explicit authorization to proceed to testimony after attempting to resolve the
issue through settlement. By only adjusting the hourly rate, without considering the relatively
few hours expended, the Commission did not conform to the legal standard to determine
whether ICL's request \ilas "reasonable in amount."
ICL Petition for Reconsideration
IPC-E-12-27
By reducing ICL's expert witness's hourly rate, the Commission also undercuts the poliry
of Idaho to encourage full and fair representations in all proceedings. I.C. S 61-617A; Idaho Fair
Share,75l P.2d at 110. This case involved a highly complex proposal to create wholly new rate
schedule for a unique set of customers. Idaho Power's proposal was a relatively novel issue not
just in Idaho, but in most of the United States. Reviewing the proposal to understand its impact
on ICL's interests and then developing a substantive response required technical expertise that is
in short supply. Intervenors like ICL can only ensure full and fair representation of our interests
in this type of highly complex and novel proceeding by incurring expert witnesses costs.
Recognizing that hourly rates vary by location and qualifications, ICL deployed the cost control
methods described above with an eye to the legal standard that expert witness fees be "reasonable
in amount". A new standard based on an arbitrary hourly rate will chill ICL's ability to fully and
fairly our interests and thereby undercut Idaho policy enshrined in I.C S 6l-617A. Instead, the
Commission can uphold state poliry and accurately apply the "reasonable in amount" standard
by acknowledging ICL's full request is based on a balance of hourly rate to the hours expended.
III. Conclusion
The Commission abused their discretion, and did not conform to the applicable legal
standard, by reducing ICL's witness's hourly rate without considering the hours expended in
relation to the complexity of the case. By limiting the hours, ICL incurred a reasonable total.
Awarding all of ICL's intervention costs is consistent with the applicable legal standards and an
exercise in reasoned discretion. Bingham,987 P.2dat1042. By doing so the Commission will
uphold "the policy of this state to encourage participation at all stages of all proceedings . . . so
that all affected customers receive full and fair representation[.]" I.C. S 6l-617A.
Respectfully submitted this 23rd day of )uly 2013,
ICL Petition for Reconsideration
rPC-E-t2-27
4
Benjamin I. Otto
Idaho Conservation League
ExhibitA
Hours for ICL's expert witness R. Thomas Beach
211412013 RTB Review ldaho Po\,6r IRP; prepare cosVbenelit analysis of NEM.
211512013 RfB Prepare cosVbenelit analysis ol NEM. Beview ldaho Pow6r GRC data on marginal
transmission costs.
2l19l2o'13 RTB Conler with B€n Otto on NEM analysis. Revise analysis to reflecl correct marginal
transmission costs.
212812013 RTB Confer with Ben Otto on noxt steps, discovery responses. Ssnd him confidentiality signature.
SUBTOTAL:
For professional services rendered
l.lath PMr NFM ara.
4l3ol2013 RTB Confor wlth Ben Otto on tostlmony. R€vlow tortmony tEmplato; analysb of ldaho Pofler NEM cGts
and benefits.
5l4lm13 RTB Draf, tsstlmony on co6b and b€nefiB of solar PV br ldaho Ponsr.
5/52013 RTB Drat tes0mony send drafi to Bon Otto. Wod( on tablos and numb€rs. Revise capadty nluo of solar.
d6n013 RTB Ravl€w lnltlal edf,B to tgstlmonlr; s€nd r€vlslons to B6n Otb.
5nl2o13 RTB Revlow llnal tostmony; s€nd note to Ben otto. Modify Table 2. Revlav Clty of Bolse draft tostlmdy.
5/1412013 RTB Confer u,lth Ben Otto on fil6d tostlmon)r; r€vl€w.
SUBTOTAL:
For professlonal seMcas r€ndor€d
Hrs/Flale Amount
3.00 900.00
3OO.oo/hr
3.50 1,050.00
3OO.oo/hr
1.25 375.00
300.oo/hr
o.25 75.00
300.00/hr
2,ztO0.0Ol
8.00
HIs/Rab
$2,400.00
Amount
1.00 3m.00
3{rc.qYhr
4.50 1,350.00
3@.fiYhr
3.50 1,050.00
3o0.(xyh
1.50 /t50.00
300.OOhr
1.50 ,t50.00
3m.mftr
1.00 3m.00
3m.00hr
13.O0 3,900.001
6/4/2013 RTB
6/5/2013 RTB
6/102013 RTB
6/11/2013 RTB
Confur with Ben Otb on crcss topics. Reviow rabuttal b6for€ c8ll.
Call on cross topi6. Roviow r€buttal bobm call. Rovis^, CPUC oxc$s gen ordor.
Pr6par. fur headng in Bolse. Rovlowlilod tastfrnory. Sond CPUC excess generatbn orderto B6n
Otto.
Attend hearing in Boi8e. T6stify. Assist in cros8€xamination of IPC witnesses. Confor with Ben Otto.
't3.00
HrCRat6
0.75
300.fl)/hr
1.75
3(X).fivhr
2.25
3fi).fi)/hr
525
300.m/hr
10.m
13,900.00
Arnount
225.@
525.00
675.00
1,575.00
s3,m0.00
5.66
4.OO
462.80
s512.46
For profeseional eervbas t€ndor€d
Additbnal Chaige6:
Meals/Meetings
Parking/Tolls
Travel E)eonses
Total cGts
Total amount of this bill
ICL Petition for Reconsideration
rPC-E-t2-27
J3,512.44
Exhibit A
CERTIFICATE OF SERVICE
I certiff that on the 23rd day of |uly 2013,1delivered true and correct copies of the
foregoing PETITION FOR RECONSIDERATION OF THE IDAHO CONSERVATION LEAGUE
to the following persons via the method of service noted:
Hand delivery:
Jean Jewell
Commission Secretary (Original and seven copies)
Idaho Public Utilities Commission
427 W. Washin$on St.
Boise, lD 83702-5983
Electronic Mail:
Lisa D. Nordstrom
Regulatory Dockets
Matt Larkin
Greg Said
Idaho Power Company
P.O. Box 70
Boise,Idaho 83707
lnordstrom@idahopower. com
[e-mail]
mlarkin@idahopower. com
[e-mail]
PowerWorks. LLC
Chris Aepelbacher, Project Engineer
5420W. Wicher Road
Glenns Ferry, Idaho 83623
[e-mail]
Pioneer Power. LLC
Peter I. Richardson
Richardson & O'Leary
515 N.27 th St
Boise,Idaho 83702
peter@richardsonandoleary. com
John Steiner
24597 Collett RD
Oreana, Idaho 83650-5070
[e-mail]
ICL Petition for Reconsideration
rPC-E-12-27
City of Boise
R. Stephen Rutherford
City of Boise City, Idaho
P.O. Box 500
Boise, ID 83701-0500
BoiseCityAttorney@cityofboise. org
Iohn R. Hammond,lr.
Batt Fisher Pusch & Alderman, LLP
P.O. Box 500
Boise,ID 83701
[e-mail]
Idaho Clean Energy Association
Dean |. Miller
McDevitt & Miller, LLP
P.O. Box 2564-83701
Boise,Idaho 83702
[e-mail]
Snake River Alliance
Ken Miller
Clean Energy Program Director
Snake River Alliance
P.O. Box 1731
Boise,ID 83701
kmiller@snakeriveralliance. org
Benjamin I. Otto
Certificate of Service