20180810Brief on Reconsideration.pdf

gEARTHJUSTTcE ALASKA CALIFORNIA FLORIDA MIO.PACIFIC NORTHEAST NORTHERN ROCKIES
NECEIVEI)
NoRrHWEsr RocKy MouNrAr t I lSflJ5'1U D.?ilNgNgrsNAL
rlAugust 9,2018
By Federal Express and Electronic Mail
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
472 W est Washington Street
Boise, ID 83702
Re: Case No. IPC-E-17-13, Vote Solar's Petition for Reconsideration
Dear Ms. Hanian
Enclosed, please find for filing in the above-referenced case the original and seven copies
of Vote Solar's Brief on Reconsideration.
Please contact me if you have any questions. Thank you for your attention to this matter.
Sincerely,
Al Luna, Earthjustice
Litigation Assistant, Clean Energy
Earthjustice
1625 Massachusetts Avenue N.W., Suite 702
Washington, D.C. 20036
(202) 797-s2s9
aluna@e arthj u st i c e. o rg
Enclosures
WASHINGTON, DC OFFICE 1625 MASSACHUSETTS AVENUE, SUITE 702 WASHINGTON, DC 20036
T:202.667.4500 F:202.667.2356 [e-mail] WWW.EARTHIUSIICE.ORG
David Bender, WI Bar # 1046102 (Pro Hac Vice)
Earthjustice
3916 Nakoma Road
Madison, WI 5371I
[phone], ext 5228
dbender@earthj ustice. org
IN THE MATTER OF THE APPLICATION OF
IDAHO POWER COMPANY FOR
AUTHORITY TO ESTABLISH NEW
SCHEDULES FOR RESIDENTIAL AND
SMALL GENERAL SERVICE CUSTOMERS
WITH ON-SITE GENERATION
11[CEIVEil
2ilIfi f,UG l0 Al{ 9: 33
T
lll-Ir/
,{tuit$sloN
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
)
)
)
)
)
)
)
)
CASE NO. IPC-E-1]-13
VOTE SOLAR'S BRIEF ON
RECONSIDERATION
Pursuant to the Idaho Public Utilities Commission's ("Commission") June 28, 2018,
Order No. 34098 in this docket, Vote Solar respectfully submits this Brief on Reconsideration.
Order No. 34098 granted Vote Solar's May 29,2018, Petition for Reconsideration, which asked
the Commission to reconsider the scope of Schedules 6 and 8 and to limit those new customer
classes to only those customers with generation who export electricity. Order No. 34098 granted
reconsideration and provided that parties could file a brief "discussing whether a customer's
ability to export energy should determine if the customer should be included in new Schedules 6
and 8." Order No. 34098 at 3. For the reasons set forth in Vote Solar's Petition for
Reconsideration, and as further described below, only those customers who export energy should
be included in the new Schedules 6 and 8.
Vote Solar's Brief on Reconsideration
Idaho Power Company Has Not Demonstrated A Sufficient Difference In
Load Patterns To Distinguish Residential and Small Business Customers
With Generation Who Do Not Export and Therefore Justify Including Those
Customers In a New Class.
A. A New Customer Class Is Only Justified Through An Adequate
Evidentiary Showing Of Difference In Cost of Service, Quantity of
Electricity Used, Conditions of Service, or Time, Nature And Pattern Of
Use.
To justify a new customer class, Idaho Power Company ("lPC" or "Company") must
demonstrate a sufficient diff'erence between customers based on "factors such as cost of service,
quantity of electricity used, differences in conditions of service, or the time, nature and pattern of
tse." Idaho State Homebuilders v. Washinglon Water Power,l07 Idaho 415,420,690 P.2d 350,
355 (1984); see also Building Contractors Ass'n. of Sw. Idaho, Inc. v. Idaho Pub. Util. Comm'n,
128 Idaho 534, 539,916 P.2d 7259, 1264 (1996). IPC must make that demonstration through
sufficient competent evidence in the record. Washington Water Power Co. v. Idaho Pub. Util.
Comm'n, 107 Idaho 567 , 5J5, 617 P.2d 1242, 1250 (1980) (Commission findings must be based
on "competent and substantial evidence") (citing Boise Water Corp. v. Idaho Pub. Util. Comm'n,
97 Idaho 832, 555 P .2d 163 (197 6); Hartwig v. Pugh, 97 ldaho 236, 542 P .2d 70 (197 5); Oregon
Shortline R. Co. v. Pub. Util. Comm'nof ldaho,47 ldaho482,484,276P.970,971(1929);
Baltimore & Ohio R. Co. v. Aberdeen & Rockfish R. Co.,393 U.S. 87,92 (1968)).
B. IPC Has Not Demonstrated A Significant Difference In Cost, Quantity,
Condition or Time, Nature and Pattern of Use By Residential and Small
Business Customers Who Do Not Export Generation.
IPC initially identified "two underlying rationales" for separating customer-generators
from non-generating residential and small business customer classes: (l) an alleged "subsidy'' to
generating customers through net metering; and (2) a "fundamentall-v distinct" load service
requirement and usage characteristics for selt--generating customers. Order No. 34046 at 5 (May
9,2018) (''Final Order") (summarizing IPC's Application). Both rationales relied on customer
I.
2
Vote Solar's BrieI on Reconsideration
exports. The "subsidy" claim relied on industry literature that looks to the level of credit
customers receive on their bill for exported electricity. See Direct Testimony of Timothy E.
Tatum, Ex. 5 at 2 of 5 (defining the "subsidy" as the "credit on fnet metering customers'] bill
when their rooftop panels generate excess power and sell it back to the utility"), 3 of 5
(purporting to "quantify[] the subsidy" based on the value of exports compared to the credit
provided).1 Similarly, the evidence of different load shapes relied exclusively on net metering
customers who export. Hr'g Tr. at 758:2-12.
IPC did not introduce substantial evidence related to a "subsidy" or the loads, usage, or
impacts on the grid from customers who self-generate but who do not net meter by exporting
electricity to the Company's distribution system. In fact, IPC denied even having such evidence.
And you don't have any load data for what a load shape for that type of
customer with battery storage and no exports looks like; is that right?
I do not, no, and I'm not aware of the Company having any such customer
to evaluate.
Right, and so the Commission has no data to compare a load shape of a
storage with a solar customer to an average or other non-generating
customer's load shape?
I don't know if they do or not, but the Company doesn't possess that and
we haven't presented it in this case, because we don't possess it.
Hr'g Tr. at349:16-350:2; see also Idaho Power Company's Answer to Vote Solar's Petition for
Reconsideration at 6 (June 5,2018) ("IPC Answer") (confirming that, to IPC's knowledge, "all
R&SGS customers whose on-site generation systems are connected in parallel to Idaho Power's
system have exported excess energy to the grid"). Since IPC has no load and usage data lor
customer-generators who do not export, IPC is necessarily unable to make the required showing
I IPC later largely abandoned the subsidy allegation and relied almost exclusivell on an alleged difference in load
shapes (time, nature, and pattern of use). See Surrebuttal 'lestimony of Timothy E. Tatum at 4:4- l5 (The
Company's evidence is based on load service requirements and usage characteristics and not the cost to serve): Hr'g
Tr. ar 257 : I 9-258 :9, 261 :5 -9, 21 5 :9 - I 6, 530: 1 0- I 6.
o
A
o
A
-)
Vote Solar's Brief on Reconsideration
that such customers have sufficiently distinct load and usage characteristics to justity excluding
them from the general residential and small general service classes.
Furthermore, to the extent there is any evidence in the record related to the loads of
customer-generators exclusive of their export tlows. that evidence compares the loads of bi-
directional customer-generators when their exports are removed from their load shape. Hr'g Tr.
at770:1-771:15; see also id. at775:23-776:9. This is not evidence of the load shapes or usage of
customers who do not export, but as the only theoretical proxy actually indicates that those loads
"overlap" with those of non-generating customers. Hr'g Tr. at770:1-771:.15. Therefore, even to
the extent the Commission were to look to evidence of bi-directional customer-generators after
their export flows have been stripped from load data, those data actually show no distinguishing
load and usage characteristics that could justify a new class to include non-exporting customers.
IPC's Answer to Vote Solar's Petition for Reconsideration suggests that non-exporting
customer-generators have different loads and usage because they "still require a variety of
services from the utility" including "in-rush current requirements for starting motor loads . . .,
supplemental services when solar is not available at night, and frequency services to maintain
power quality" IPC Answer at 3 (quoting Hr'g Tr. at 598:17-600:15) (internal quotation marks
omitted). However, those energy services are not distinguishing and, therefore, cannot be used
to create a new class to include such customers. IPC's use of the phrase "still require" is telling:
non-generating customers have those same loads and uses. The criteria for separating customers
from an existing class is a di/Jbrence betu'een customers. Idaho State Homebuilders, 107 [daho
at 420. IPC's argument highlights lhe similarities. nol the differences, between non-exporting
self-generating customers and the rest of the residential and small general service classes.
4
Vote Solar's Brief on Reconsideration
II.The Commission's Findings And Reasoning Contained In the Final Order
Do Not Support Including Non-Exporting Self-Gencrating Customers In
Schedules 6 and 8.
Consistent with the lack of record evidence to justify excluding non-exporting customer-
generators from the existing residential and small business classes due to load shape or costs, the
Commission's findings, conclusions, and reasoning were limited to customer-generators who
export electricity.
The Commission defined the new customer class as "a class of customers that uses the grid to
both import and export energy" based on a finding of a "fundamental difference between, as
an example, a residential customer with no on-site generation and one that can both import
energyfrom, and export il to,the Company's grid using the same infrastructure." Final
Order at 16-17 (emphasis added).
a
a
a
a
a
The Commission also explicitly ref'erred to the new class as "bi-directional" customers, and
noting that they "push energy back to the grid', with the Company having limited control
over the use and distribution of this somewhat unpredictable resource. Id. at l7-18.
The Commission explicitly distinguished exporting customer-generators from "a class of
customers that uses the grid for standard energy import" and "purely offset[s] its own energy
usage outside of the grid." Id. at 16-18.
To the extent the Commission also considered customer revenue collection, and whether
customer-generators pay "their fair share of fixed costs," that analysis was also limited to the
effects of "netting," "mask[ing]" 2 consumption through exports, and whether "customers
with on-site generation are dif1brentiating themselves by exporting." Id. at 17.
The Commission found "bi-directionality" to be the distinguishing feature, leading to the
"load and usage characteristics" such as "demand and load factors, excess net-energy
exportation in the spring and summer, and more volatility in contributions to the Company's
peak(s)" to justify a new customer class. 1d at 18. Those distinguishing characteristics are
"tied to a load that includes an export component." Id. at 19.
Just as the record contains no evidence ofdifferent load and usage characteristics ofnon-
exporting customcr-gencrators, the Commission's tindings and reasoning do not support
z "Masking" refers to monthly netting exports and imports through bi-directional flow. Hr'g Tr. at278:24-279:5.
283 :20 -284 :20, 3 45 :7 - I 6.
-)
Vote Solar's Brief on Reconsideration
separating non-exporting self--generating customers from the existing residential and small
business classes. Indeed, non-export self--generating customers are part of those larger classes
who "use[] the grid for standard energy import[s]" because their generation-like conservation
and efficiency measures-"purely offset[ ] ftheir] own energy usage outside of the grid." Final
Order at 16- I 8
The Commission Should Exclude Non-Exporting Customer-Generators
From The New Schedules 6 and 8.
For the reasons set forth above and in Vote Solar's Petition for Reconsideration, the
Commission should order IPC to exclude non-exporting self-generating customers from
Schedules 6 and 8. Those new customer classes should be limited to the "bi-directional"
customers for whom the Company provided load data in the record and that have the
distinguishing characteristics found by the Commission. No other outcome is justified by the
record.
Moreover, as Staff previously pointed out, limiting Schedules 6 and 8 to customers who
export will also help to narrow the scope of the forthcoming dockets related to costs, benefits,
rates, and rate design for customers in those classes. Staff Response to Vote Solar Petition for
Reconsideration at 2 (June 5,2078) ("Staff Response"). As noted above, there is no record on
load shapes and costs for non-exporting customer-generators. However, customers who do not
export inevitably have different load profiles, and likely have different costs, benefits, and
responses to rate design than customers who do export. Therefore. the focus of the future docket
on costs, benefits, rates, rate design, and compensation fbr customers in Schedules 6 and 8 will
benefit from a focus on only the unique costs and benefits of those customers w,ith exports.
StatTpreviously advocated that Schedules 6 and 8 should exclude only those customer-
generators who "are incapable of exporting energ)'to the grid" through the use ol"a Grid Tie
III.
6
Vote Solar's Brief on Reconsideration
Limited, Grid Inverter with Export Control, or similar device." Staff Response at 2 (emphasis
original). Vote Solar understands that most modern inverters are capable of preventing exports,
so a requirement to use such a device is unlikely to add equipment costs for customers.
However, the requirement may add uncertainty and administrative costs that outweigh any
benefit from the requirement. Market signals will ensure that any actual exports from customer-
generators outside Schedules 6 and 8 will be de minimls. Customer-generators opting out of
Schedules 6 and 8 will not receive credit for any exports-meaning that any electricity
incidentally delivered to the grid provides no value to the customer-generator and constitutes a
financial loss to the customer and a benefit to IPC. That financial disincentive will ensure any
actual exports from customers opting out of Schedules 6 and 8 are minimal. Nevertheless, to the
extent that IPC's meters are incapable of measuring only imports, excluding only customers
incapable of exports through the use of a device avoids any concern about intra-hour "masking"
of import energy flow.3
DATED this 9th day of August,2018
Respectfully submitted,
/s/ David Bender
David Bender (Admitted Pro Hac Vice)
Earthjustice
3916 Nakoma Road
Madison, WI 53711
[phone], ext. 5228
dbender@earthj usti ce. org
Counsel for Vote Solar
3lPC's Answer to Vote Solar's Petition for Reconsideration includes a discussion of testirnony at hearing related to
whether IPC's meters are capable of detecting use of grid-supplied electricity within a one-hour interv'al. See IPC
Answer at 5. The testimony IPC cites was related to a different issue and does not indicate uhether IPC's rneters are
capable of being set to record only inflows (i.e.. rvhether the inter-hourly "back and forth interaction" is a result of
being set to record bi-directional flo"vs or inherent regardless ofsettings).
7
Vote Solar's Brief on Reconsideration
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 9th day of August,20l8, served the fbregoing
VOTE SOLAR'S BRIEF ON RECONSIDERATION upon all parties of record in this
proceeding, via the manner indicated:
FedEx and Electronic Mail
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Diane.holt@puc. idaho. eov
(Original and seven copies provided)
Electronic Mail
IDAHO POWER COMPANY COMMISSION STAFF
Lisa D. Nordstrom
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, ID 83707
lnordstrom@ idahopower. com
dockets@ idahopower. com
Timothy E. Tatum
Connie Aschenbrenner
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, ID 83707
tlatqru @, i d aho po wplqe r:0
[e-mail]
IDAHO CONSERVATION LEAGUE
Nlatthew A. Nykiel
Idaho Conservation League
P.O. Box 2308
102 E. F.ucbd, #207
Sandpoint, ID 83864
mnykiel@idahoconservation. ore
Sean Costello
Deputy Attorney General
Idaho Public Utilities Commission
47 2 West Washington (837 02)
PO Box 83720
Boise, ID 83720-0074
Sean..idaho.gov
IDAHYDRO
Idahydro c/o C. Tom Arkoosh, and
Idaho Clean Energy Association c/o C. Tom
Arkoosh
Arkoosh Law Offices
802 W. Bannock Street. Suite 900
P.O. Box 2900
Boise, ID 83701
Tom. arkoosh@arkqqsh. co m
Erin.sh.con-r
8
Vote Solar's Brief on Reconsideration
IDAHO IRRIGATION PUMPERS
ASSOCIATION, INC.
ldaho Irrigation Pumpers Association, Inc
Eric L. Olsen
ECHO HAWK & OLSEN, PLLC
505 PershingAve., Ste. 100
P.O. Box 6119
Pocatello, Idaho 83205
[e-mail]
Idaho Irrigation Pumpers Association, Inc.
Anthony Yankel
12700 Lake Ave., Unit 2505
Lakewood, OH 44107
[e-mail]
AURIC LLC
Elias Bishop
Auric Solar, LLC
2310 S. 1300 W.
West Valley City, UT 84119
Elias. bishop@auricsolar. com
Preston N. Carter
Deborah E. Nelson
Givens Pursley LLC
601 West Bannock Street
Boise, ID 83702
prestoncarter@, givenspursley. com
den@ givenspursley. com
VOTE SOLAR
David Bender
Earthjustice
3916 Nakoma Road
Madison, WI 53711
d be nder@ earthj usti ce. o re
Briana Kobor
Vote Solar
360 22nd Street, Suite 730
Oakland. CA94612
[e-mail]
SIERRA CLTJB
Kelsey Jae Nunez
KELSEY JAE NUNEZ LLC
920 N. Clover Dr.
Boise, ID 83703
kel sey(@kel seyi aenunez. co m
Tom Beach
Crossborder Energy
2560 gth Street, Suite 213A
Berkeley, CA947l0
tomb
Zack Waterman
IDAHO SIERRA CLUB
503 W. Franklin St.
Boise, ID 83702
Zach.
Michael Heckler
3606 N. Prospect Way
Garden City, ID 83714
Michael.p.heckler@ email.com
CITY OF BOISE CITY
Abigail R. Germaine
Deputy City Attorney
Boise City Attorney's Office
150 N. Capitol Blvd.
P.O. Box 500
Boise, Idaho 83701 -0500
aqermaine@cityofboi se. ors
IDAHO CLEAN ENERGY
ASSOCIATION
Preston N. Carter
Deborah E. Nelson
Givens Pursley LLC
601 West Bannock Street
Boise. ID 83702
prestoncarter@ gi venspr"rrsley.com
den@ givenspurslev.co nr
9
Vote Solar's Brief on Reconsideration
SNAKE RIVER ALLIANCE AND NW
ENERGY COALITION
John R. Hammond Jr.
Fisher Pusch LLP
101 South capitol Blvd., Suite 701
PO Box 1308
Boise, Idaho 83702
[e-mail]
Snake River Alliance
[e-mail]
NW Energy Coalition
[e-mail]
INTERMOUNTAIN WIND AND SOLAR,
LLC
Ryan B. Fruzier
Brian W. Burnett
KIRTON McCONKIE
50 East South Temple, Suite 400
P.O. Box 45120
Salt Lake city, uT 84111
[e-mail]
bburnett@,kmclaw.com
Intermountain Wind and Solar, LLC
1952 West 2425 South
Woods Cross, UT 84087
doue@,imwindandsolar. com
/s/ Al Luna
Al Luna, Litigation Assistant
Earthjustice
Vote Solar's Brief on Reconsideration
t0