20171027Memo in Support of Motion to Dismiss.pdf

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C. Tom Arkoosh, ISB No. 2253
ARKOOSH LAW OFFICES
802 W. Bannock Street, Suite 900
P.O. Box 2900
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
IN THE MATTER OF IDAHO POWER
COMPANY'S APPLICATION FOR
AUTHORITY TO ESTABLISH NEW
SCHEDULES FOR RESIDENTIAL AND
SMALL GENERAL SERVICE
CUSTOMERS WITH ON-SITE
GENERATION
RECE IVED
?$l1OCT 27 Pl{ h: 07
i,, r r ir? i${ry#rfifi 18 t' o *
David H. Arkoosh, ISB No. 8742
Law Office of David Arkoosh
PO Box 2817
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attomeys for Idaho Clean Energy Association
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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Case No. IPC-E-17-13
IDAHO CLEAN ENERGY
ASSOCIATION'S MEMORANDUM
IN SUPPORT OF MOTION TO
DISMISS
The Idaho Clean Energy Association ("ICEA"), by and through its attorneys, C. Tom
Arkoosh of Arkoosh Law Offices and David H. Arkoosh of Law Office of David Arkoosh, and
in accordance with Rules of Procedure 56 and 256, hereby moves the Commission for an Order
dismissing this case with prejudice because Applicant Idaho Power Company ("ldaho Power" or
the "Company") has failed to satis$ the conditions precedent to it applying to the Commission
for other relief. See IDAPA 31.01.01.056.03 and 31.01.01.256.
BACKGROUND
In November 2012,ldaho Power applied to the Commission for authority to modify its
net metering service. Following technical and public hearings and upon its review of the record
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS - Page I
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and relevant testimony, on July 3,2013, the Commission issued Order No. 32846, (l) declining
to cap net metering capacity and instead directing the Company to periodically report on its net
metering service; (2) declining to modifu the net metering pricing structure or move residential
and small general service net metering customers into new classes; (3) requiring the Company to
issue a per kWh credit for excess generation, with the credits to expire only when the customer
ends service; and (4) approving Exhibit 8, which resolved parties' concerns about
interconnection language proposed in proposed Schedule 72. While testimony was lengthy on
both sides of the issue, the Commission "advise[d] the Company that it would enhance
consideration of future major program-specific changes if it informed and obtained feedback
from its customers and other stakeholders before proposing them." Order at 5. The Company's
2013 Application further requested that the Commission create a separate rate class and place
those customers onto a different schedule than general residential and small general service
classes. In response, the Commission found that changing energy charges "should not he
examined in isolation but should be fully vetted in a general rate proceeding." Order at 13.
On July 27, 2017, Idaho Power filed its Application in this case, requesting that the
Commission establish new schedules for residential and small general service customers with on-
site generation. Among the requests in its Application, Idaho Power requests further proceedings
in front of the Commission by which it can come to "better understand the unique benefits and
costs these customers may add to the overall system." Application at 14.
RELEVANT LAW
"ln Idaho, 'res judicaro means that in an action between the same parties upon the same
claim or demand, the former adjudication concludes parties and privies not only as to every
matter offered and received to sustain or defeat the claim but also every matter which might and
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS - Page 2
should have been litigated in the first suit." Magee v. Thompson Creek Mining Co., 152 Idaho
796,202,268 P.3d 464, 470 (2012) (internal quotations omitted); Idaho Code $ 6l-625. Res
judicata applies to decisions of Idaho administrative agencies. Magee, 152 Idaho at 202,268
P.3d at 470 (2012).
For purposes of applying the doctrine of res judicata, the "sameness" of a cause of action
"is determined by examining the operative fact underlying the two lawsuits." Formers Nat'l
Bank v. Shirley, 126 Idaho 63, 69,878 P.2d 762,768 (1994) (internal citation and quotations
omitted).
The Court in Ticor Title Co. v. Stanion held that res judicata serves three fundamental
purposes:
(1) it preserves the acceptability dispute against the corrosive that would follow if
the same matter were twice litigated to inconsistent results;
(2) it serves the public interest in protecting the courts against the burdens of
repetitious litigation; and
(3) it advances the private interest in repose from the harassment of repetitive
claims.
Ticor Title Co. v. Stanion, 144 Idaho 119,123,157 P.3d 613,617 (2007).
ARGUMENT
Idaho Power's Application Presents the Same Set of Operative Facts as its
2012 Application.
ln 2012,Idaho Power brought to the Commission the issue of pricing for consumers with
on-site generation. In its Application, it complained that, "Between 2002 and2010, installed net
metering capacity steadily increased from 39 kilowatts ("kW") to just under 1,000 kW in 2010.
Since 2070, growth has increased dramatically, rising by nearly 1,500 kW over two years." 2012
Application, at l.
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS - Page 3
1.
In 2017, Idaho Power is returning with the same complaint, namely:
In recent years, the number of customers choosing to install on-site generation
and to take bi-directional services from Idaho Power has increased notably. The
rates currently charged to net metering customers were not designed to reflect the
value of the bi-directional service being provided to them by the grid nearly every
hour of every day, nor do they accurately reflect any potential benefits of on-site
generation. These unnecessary inaccuracies in pricing could result in unfair cost
shifting between customers who choose to install on-site generation and those
who do not.
2017 Application, at l-2.
In both instances, Idaho Power complains, in essence, that an increasing number of
customers are installing on-site generation and that the current rate structure charged to these
customers does not reflect the economic realities of what Idaho Power delivers to them. While
Idaho Power has changed its description of the rate of growth of adoption of on-site generation
from "dramatically" to "notably," it is referring to the same type of production and the same rate
as it was in 2012. This, the rate for on-site generation customers of Idaho Power, brings to the
Commission the same set of operative facts as are contained in Idaho Power's 2012 Application.
2. The Commission Has Previously Decided the Issue Idaho Power Presents.
The Commission has previously decided, in 2013, the issue that Idaho Power presents
here. The Commission's 2013 Order refused to establish a new rate class and different schedule
for residential and small general service customers outside of a general rate proceeding. In other
words, where Idaho Power asked whether the Commission would change rates in response to its
concerns of increased customers with on-site generation, but outside of a general rate
proceeding, the Commission answered in the negative, stating that the matter "should not be
examined in isolation but should be fully vetted in a general rate proceeding" 2013 Order at 13.
The issue brought in Idaho Power's Application has been decided.
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS - Page 4
3. Idaho Power Has Not Met the Conditions Precedent Set by the Commission for its
Consideration of a New Rate Class.
Idaho Power has not met the condition set by the Commission's 2013 Order with regard
to considering this matter a second time. In issuing its 2013 Order, the Commission set clear
conditions precedent to its giving any new consideration to major program-specific changes,
including establishing a new rate class, instructing Idaho Power to take different approach,
namely, by "inform[ing] and obtain[ing] feedback from its customers and other stakeholders
before proposing them." 2013 Order at 5. The Commission also advised Idaho Power that it
should bring the matter in a general rate proceeding. ln its Application,ldaho Power has not
shown that it has informed or obtained feedback in any meaningful way from its customers and
other stakeholders or brought such that this new Application is ready for consideration apart from
what the Commission found in its 2013 Order.Idaho Power held a workshop in2016, and two
meetings in2077, with stakeholders and industry representatives. As described in the testimony
of Aschenbrenner, pp. 15-24,ldaho Power's purpose in these gatherings was to announce its
purpose and solicit feedback from attendees regarding Idaho Power's intent. It does not appear
from the testimony that Idaho Power's intended to craft a consensus. Further, it makes no sense
to even file the Application as Idaho Power did in light of the Commission's 2013 Order, given
that it stated unequivocally that it would not consider the matter absent a general rate case, its
second condition precedent to the matter of rates for on-site generation customers. Idaho Power
has not shown that it has satisfied these conditions prior to bringing this matter back to the
Commission for its consideration.
In Idaho Power's answer to Request No. 13 of ldaho Power Company's Response to Vote
Solar's First Set of Data Requests to ldaho Power Company, see Attachment t hereto, Idaho
Power appears to desire to adopt this approach:
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS - Page 5
The Company has recommended that, in order to establish a methodology that
determines the appropriate amount of costs and accurately reflects their utilization
of the grid, the Commission establish a formal process by which a comprehensive
review of the compensation structure for customers with on-site generation can be
analyzed and vetted collaboratively with interested parties. Idaho Power believes
this would best be done through a collaborative process where stakeholders and
other utilities can participate.
ALTERNATIVE RELIEF
Given the Commission's previous mandate of public and industry input, the resolution of
net metering costs and benefits may best be set by the same process used in the solar integration
Case No. IPC E-14-18, see Attachment 2 hereto. Therefore, this motion seeks such alternate
relief similar to the attached in timeline, methodology, source of inputs, and technical group to
study the costs and benefits of net metering, and would request a settlement conference to
discover whether the parties can agree upon such a concept.
REQUESTED RELIEF
For the foregoing reasons, ICEA asks the Commission for an Order granting this Motion
to Dismiss the case with prejudice on the grounds provided above; or, alternatively, for a process
similar to that set forth in Case No. IPC-E-I4-18.
DATED,n,r 2Z*day of October,2017
LAW OFFICE OF DAVID ARKOOSH
David H. Arkoosh
Attorney for Idaho Clean Energy Association
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS - Page 6
I HEREBY CERTIFY that on tn" -#abv of October ,2Ol7,l served a true and correct
copy of the foregoing document(s) upon the following person(s), in the manner indicated
Original and 7 copies to:
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, lD 83702
Copies to:
Sean Costello
Deputy Attorney General
Idaho Public Utilities Commission
472 W. Washington (83702
P.O. Box 83720
Boise, ID 83720-0074
Lisa D. Nordstrom
Idaho Power Company
PO Box 70
Boise, ID 83707
Timothy E. Tatum
Connie Aschenbrenner
Idaho Power Company
PO Box 70
Boise,ID 83707
Matthew A. Nykiel
Idaho Conservation League
P.O. Box 2308
102 E. Euclid, #207
Sandpoint, ID 83864
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IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
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Eric L. Olsen
ECHO HAWK & OLSEN, PLLC
505 Pershing Ave., Ste. 100
P.O. Box 6l l9
Pocatello, Idaho 83205
Anthony Yankel
12700 Lake Avenue, Unit 2505
Lakewood, OH 44107
Elias Bishop
Auric Solar, LLC
23r0 s. 1300 w.
West Valley City, UT 84119
Preston N. Carter
Deborah E. Nelson
Givens Pursley LLC
601 W. Bannock St.
Boise, ID 83702
Kelsey Jae Nunez, LLC
Sierra Club
920 N. Clover Drive
Boise, ID 83703
Zack Waterman
Idaho Sierra Club
503 W. Franklin St.
Boise, lD 83702
Michael Heckler
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IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
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Abigail R. Germaine
Deputy City Attorney
Boise City Attorney's Office
105 N. Capitol Blvd.
P.O. Box 500
Boise, ID 83701-0500
David H. Arkoosh
Law Office of David Arkoosh
P.O. Box 2817
Boise,ID 83701
David Bender
Earthjustice
3916 Nakoma Road
Madison, WI 53711
Briana Kobor
Vote Solar
360 22nd Street, Suite 730
Oakland, CA94612
John R. Hammond, Jr.
Fisher Pusch LLP
101 S. Capitol Blvd., Suite 701
P.O. Box 1308
Boise, ID 83701
Snake River Alliance
Electronic Service Only
NW Energy Coalition
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Ryan B. Frazier
Brian W. Burnett
Kirton McConkie
50 East Temple, Suite 400
P.O. Box 45120
Salt Lake City, UT 841I I
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Intermountain Wind and Solar, LLC
1952 West 2425 South
Woods Cross, UT 84087
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David H.
IDAHO CLEAN ENERGY ASSOCIATION'S MEMORANDUM IN SUPPORT OF MOTION
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