20180824Response Brief.pdf

gEARTHJUSTTcE ALAsKA cALTFoRNTA FLoRroA ,,o.ro.,r,a'{ f;fiEJ^VtE B-THERN RocKrEs
August 24,2018
NORTHWEST ROCKYMOUNTAIN WASHINGTON, D.C, INTFRNATIONAL, , : ii; i;,1 !: 59
'.' i '1'_ ..r1. j:
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 Solaros Response Brief on Reconsideration
Dear Ms. Hanian:
Enclosed, please find for filing in the above-referenced case the original and seven copies
of Vote Solar's Response Brief on Reconsideration.
Please contact me if you have any questions. Thank you for your attention to this matter.
S
Nick
Litigation Clean Energy
Earthjustice
1625 Massachusetts Avenue N.W., Suite 702
Washington, D.C. 20036
(202) 7e7-4303
nthorpe@earthj ustice. org
Enclosures
WASHINGTON, DC OFFICE 1625 MASSACHUSETTS AVENUE, SUITE 702 WASHINGTON, DC 20036
r:202.557.4500 F: ?02.667.2356 [e-mail] WWW.EARTHJUSIICE.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 OFIDAHO POWER COMPANY FOR
AUTHORITY TO ESTABLISH NEW
SCHEDULES FOR RESIDENTIAL AND
SMALL GENERAL SERVICE CUSTOMERS
WITH ON-SITE GENERATION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
)
)
)
)
)
)
)
)
CASE NO. IPC-E-17-13
VOTE SOLAR'S RESPONSE
BRIEF ON RECONSIDERATION
Vote Solar respectfully submits this Response Brief on Reconsideration responding to
new arguments and evidence proffered by Idaho Power Company ("ldaho Power" or
"Company") as well as comments made by Rocky Mountain Power ("RMP") and the Idaho
Irrigation Pumpers Association, Inc. ("IIPA").
The Idaho Public Utilities Commission's ("Commission") Order No. 34046, dated May
9,2018 ("Final Order"), in this docket was clear that the decision to separate net metering
customer-generators from the residential and small general service classes ("R&SGS") was
based on those customers' distinguishing characteristic of exporting electricity to the grid. Final
Order at 16-17 ("a class of customers that uses the grid to both import and export energy" and
the "fundamental difference between, as an example, a residential customer with no on-site
generation and one that can both import energy from, and export it to, the Company's grid using
the same infiastructure"), 17- l8 ("bi-directional" customers that "push energy back to the grid")
Vote Solar's Response Brief on Reconsideration
I
The Commission Should Not Countenance ldaho Power's Attempt to Relitigate
This Case With New Evidence Not Admitted At Hearing And Which No Party
Was Allowed To Test Through Discovery and Cross Examination.
It was Idaho Power's burden at hearing to produce sufficient competent evidence
showing that customer-generators have a sufficiently different characteristic from other R&SGS
customers based on cost of service, quantity of electricity used, differences in conditions of
service, or the time, nature and pattern of use.l To the extent Idaho Power met that burden, it did
so only based on customer-generators' unique attribute of exporting electricity to Idaho Power's
grid. Idaho Power failed to produce any evidence at hearing that non-exporting customer-
generators who consume all of their generation behind the meter to reduce purchases from the
company but do not export are sufficiently different from the wide array of diverse R&SGS class
customers to exclude them from the existing class.
As IDAPA 31.01.01.331.03 and332 make clear, reconsideration may be based on
briefing if the Commission determines that no additional fact finding is required, or it can be
based on additional evidence adduced through a further hearing. Vote Solar petitioned for
reconsideration on the limited question of whether-consistent with the Commission's original
findings and reasoning-Schedules 6 and 8 should be limited to bi-directional customers who
export. As Vote Solar's Petition for Reconsideration made clear, Vote Solar did not request that
the Commission take additional evidence. Vote Solar's Petition for Reconsideration at I n.1
(May 29,2018) ("Vote Solar Petition"); Commission Order No. 34098 at I (June 28,2018)
I Idaho State Homebuilders v. ll/ashington Water Power, 107 tdaho 415, 420, 690 P.2d 3 50, 355 ( l98a); see also
Application of Boise l,I/ater Corp. to Revise & lncrease Rates Chargedfor Water Sem^., 128 ldaho 534, 539,916
P.2d 1259,1264 (1996). Contrary to IIPA's Brief in Opposition (Aug. 10,2018) ("llPA Brief')" it was not Vote
Solar (or any other intervenor's) obligation to produce evidence about self-generating custorners' ability to export or
not export to the grid. (llPA Brief at 2). As the movant seeking to create new classes, Idaho Power had the burden
of proof and production to show that the customers it seeks to force into a new class meet the criteria for separate
class treatment. IIPA provides no legal authority for its mistaken attempt to shift the burden to Vote Solar and its
arguments are without merit.
2
I.
Vote Solar's Response Brief on Reconsideration
("Order Granting Reconsideration"). The Commission's Order Granting Reconsideration asked
for "briefing related to whether a customer's ability to export energy should determine if the
customer should be included in new Schedules 6 and 8." Order Granting Reconsideration at2.
The Commission specifically did not order additional hearings and did not find that the petition
presented issues of fact requiring admission of new evidence through a hearing. Id.;IDAPA
31.01.01.332.
Notwithstanding the limited scope of the request for reconsideration and the
Commission's request for briefs, rather than evidence, Idaho Power's August 10,2018
submission goes well beyond a "brief'and contains load data and analysis not previously
provided in this case. The Company concedes that the load analysis it offers is new. Idaho
Power Company's Opening Brief on Reconsideration at 4 (Aug. 10,2018) ("IPC Brief'). The
other parties are not able to conduct discovery into the new analysis and cannot test it through
cross-examination. The Commission should not countenance Idaho Power's attempt to backfill
the record with analysis it could have, but failed to introduce, in the company's direct case at
hearing. Idaho Power could have, but did not, address non-exporting customers in its application
and direct case. Its attempt to re-litigate this case through new evidence in a "brief'exceeds the
grant of reconsideration. The Commission should reject Idaho Power's arguments and evidence.
II.The Commission's Final Order Was Based On The Unique Ability to Export
and Not Fixed Cost Collection.
Even if the Commission were to consider Idaho Power's inappropriate post hoc altempt
to introduce new evidence through a "brief'on reconsideration, the Commission should still
reject the substance of Idaho Power's arguments as a revisionist interpretation of the
Commission's Final Order. The Commission separated bi-directional customers into a new class
based on those customers' expofis, not based on their ability to reduce their consumption and
3
Vote Solar's Response Brief on Reconsideration
"avoid paying the full fixed cost to serve them" as Idaho Power and RMP contend. IPC Brief at
2.
During the hearing in this case, Idaho Power failed to produce a cost of service study
supporting its argument that customers with distributed generation do not cover their costs. Nor
did Idaho Power show that any under-collection of costs, if it exists, is unique to customer-
generators, rather than common to many customers as a natural result of large heterogeneous
classes in ratemaking. The Commission-while "informed" by arguments regarding "cost
shifting or subsidization," Final Order at 16- l7-explicitly based its decision to create new
classes solely on the distinction of bi-directional flow. In fact, the Commission expressly found
that analyses about cost shifts "were incomplete," id. at 77, and "the cost of serving on-site
generation customers, when the true value of their interconnection is realized, may be less than
the cost of serving standard service customers," so postponed making any conclusions regarding
costs until after a separate docket to address issues regarding costs and benefits through a
"thorough, data-driven evaluation." Id. at22-23. Thus, the Commission's decision to separate
customers with generation was not based on cost shifts, but because "customers with on-site
generation are differentiating themselves by exporting energy to the Company's grid." Id. at 17.
Moreover, to the extent the Commission's Final Order addressed the concern that a two-
part rate fails to collect "the full fixed costs to serve" customers with low energy usage, IPC
Brief at 2, 13-17 , it recognized that those concerns apply to all customers with low energy usage
There is great diversity within the current R&SGS classes and, again, other
potential groups (such as cabin owners and other low-use customers or EE
adopters) may not be paying their fair share of f-rxed costs being recovered
through the variable rate. However, these customers do not export excess energy
to the Company's system, and they cannot "mask" their consumption
characteristics with net-energy use.
4
Vote Solar's Response Brief on Reconsideration
Final Order at 77 . Like other subgroups in the R&SGS classes that may have lower use of grid-
supplied electricity and lower revenues-e.g., those who are seasonal, those who heat with wood
stoves, those who switch to gas water heating, those who are efficient, those with smaller family
sizes, or those who work outside the home-a customer-generator who do not export "uses the
grid for standard energy import" and "purely offset[s] its own energy usage outside of the grid."
Id. at 16-18. The Commission distinguished such customers from those who export and ordered
the Company "to undertake a comprehensive customer fixed-cost analysis to determine the
proper methodology and'spread'of fixed costs as they relate to the Company's customers." 1d
at23. That is, contrary to the arguments made by Idaho Power and RMP on reconsideration, the
Commission recognized that the collection or spread of fixed costs was the basis for ordering a
broad analysis, while limiting the basis for separating customer-generators to the fact that those
customers export. Id.
Idaho Power's attempt to read the Commission's Final Order as separating customer-
generators based on their cost of service or recovery of fixed costs-as opposed to because of
their exports-misreads the Final Order. Therefore, Idaho Power's attempt to extend the Final
Order to non-exporting customers based on fixed cost collection arguments also fails.
III. Idaho Power's New Evidence Incorrectly Focuses On Average Loads Before and
After Generation Rather Than Whether the Loads of Non-Exporting
Generators' Loads Fall Within the Range of the Diverse R&SGS Classes.
Idaho Power's August 10, 2018, submission also uses the wrong metric when it alleges a
distinction between non-exporting customer-generators and the wide range of loads within the
diverse R&SGS classes. Idaho Power compares the loads of customer-generators before and
after they install generation. IPC Brief at 4-12, Attachments 1 and 2. There is, unsurprisingly, a
difference. There would also be a difference in loads before and after many customer changes-
before and after air conditioning, an electric vehicle purchase, or switching from electric to gas
5
Vote Solar's Response Brief on Reconsideration
water heating. But, that comparison is not relevant to creating a new customer class. The
Commission's decision to create Schedules 6 and 8 was due to the bi-directional flow from those
customer-generators distinguishing them from the range of loads within the diverse R&SGS
classes. Unlike the unique characteristic of exports, Idaho Power does not claim and cannot
show that the proxy load data Idaho Power submits for non-exporting customer-generators show
loads outside the broad range of loads within the R&SGS classes.2
Moreover, Idaho Power's implicit metric of differences between a customer's loads
before and after some change in consumption or equipment is unworkable as a basis to create
new classes. Such a metric has no logical end point. It could justify new classes for almost any
customer change, from air conditioning and electric vehicle purchases to increased family size
and appliance replacement. The Commission should retain its original metric based on the
unique attribute of exports and reject Idaho Power's attempt to invent an expansive and
unworkable basis for creating new customer classes.
IV. Parallel Connection Is Unrelated to Whether Non-Exporting Customers Should
Be Separated Into a New Class.
There is no dispute that customers with on-site generation connect in parallel to the
Company's system, are "grid-tied," and take service (and pay for it) from the Company when
their generation is not meeting the customer's full needs. IPC Brief at 17-251' Rocky Mountain
Power's Comments in Opposition of Vote Solar's Petition for Reconsideration at2-3 (Aug. 10,
2 To the extent that the Commission allows new evidence through reconsideration-despite limiting reconsideration
to briefing through Order No. 34098-Vote Solar incorporates the proffered reply testimony of Rick Gilliam filed
with Vote Solar's Notice of Motion for Leave filed on March 7, 2018. in this case. That testimony shows that when
exports are excluded, customer-generator loads are within the wide range of the diverse R&SGS classes. That is
consistent with Dr. Faruqui's testimony on the stand that, when expol'ts are excluded from customer-generator load
shapes, those loads overlap with the wide range of loads in the diverse R&SGS classes. Hr'g Tr. at770:l-771:15;
see also Final Order at I 7 ("There is great diversity with in the current R&SG S c lasses.").
6
Vote Solar's Response Brief on Reconsideration
2018) ("RMP Comments"). However, that fact is unrelated to whether parallel option customers
who do not export have the unique characteristic upon which the Commission based its decision
to create Schedules 6 and 8: bi-directional flow. Final Order al 16-19. The Commission's
reasoning and decision in this case should not be limited by prior tariff language using parallel
generation as the distinguishing characteristic.
V Idaho Power's Choice to Use Hourly Metering is Unrelated to Whether
Customer-Generators Have the Unique Characteristic of Bi-Directional Flow
Upon Which The Commission Based its Decision to Create Schedules 6 and 8.
Idaho Power explains how its current metering configuration only allows determination
of hourly net flow. IPC Brief at 25-27. Thus, Idaho Power argues, intra-hour bi-directional flow
cannot be detected with its current meter configurations. Id. at27. But, Idaho Power is only
correct that bi-directional flow cannot be detected if a customer is able to manage generation and
loads in every single hour, indefinitely, so that there is never an export. If an hourly export ever
exceeded the imports that hour, the net flow would register a negative value and the export
would be detectible. As Staff s Technical Brief points out, in practice, it is virtually impossible
that customers could size their generation and manage their loads so that they would have
undetectable exports even under the Company's current metering configuration. Staff s
Technical Brief in Response to Commission Order No. 34098 at 5-6 (Aug. 10,2018) ("Staff
Technical Briefl').
Moreover, an inability to detect bi-directional flow with Idaho Power's current meter
configuration does not mean limiting Schedules 6 and 8 to exporting customers "is not
enforceable" as the Company asserts. IPC Brief at 27 . Rather, it just means that something other
than the meter must be used. As Staff's Technical Brief points out, meters can be configured to
only record imports and there are devices other than meters to make exports impossible and.
therefore, any prohibition on exports "entbrceable." Staff Technical Brief at 3-4 (explaining
7
Vote Solar's Response Brief on Reconsideration
metering and export limiting devices to ensure against exports), 6 (grid-tie inverters make
exports impossible).
Furthermore, making a limitation on exports "enforceable" is not necessary, and concerns
about customers modifying their export limiting devices are also overblown. See RMP
Comments at 7. As Idaho Power acknowledges, customers intending not to export will limit the
size of their generation to prevent production greater than usage to avoid wasted generation.3
Customers who elect out of Schedule 6 or 8 by avoiding exports will not receive any credit for
exports under Schedules I andT so they will have no incentive or reason to export or remove an
export limiting device. Thus, while it is possible that a customer could install an export limiting
device and later remove it, there is no reason for the customer to do so. a Safety concerns related
to incidental customer exports, or islanding, are resolvable through interconnection standards. It
is not necessary that every interconnected parallel generator take and pay service under the same
tariffs to ensure safety.
VI. Safety Concerns Can Be Addressed Regardless of Which Schedule Customers
Take Service Under.
Vote Solar agrees with the Company and Staff that parallel operation of any generation
should comply with safety protections and interconnection requirements. However, there is no
reason that compliance with safety and interconnection standards-through Schedule 72 for
example-can only be accomplished when customers pay for their electricity service through
3 See, e.g.,lPC Brief, Attachment I at 3 (customers with export limiting devices will limit the size of their system).
In fact, the Company's analysis assumes customers still net hourly flows, sizing their system to avoid generation in
excess of "hourly energy needs." 1d. (emphasis in original). However, because export limiting devices prevent any
outflow, customers with export limiting devices would size their generation even smaller than the Company assumes
to avoid any export.
a Moreover, an export limiting device is no different than the many other customer equipment behind the meter that
could impact the Company's system but over which "[t]he utility does not have direct control." RMP Comments at
7. Rocky Mountain Power provides no authority for the implicit premise that the utility must control every aspect of
a customer's use behind-the-meter.
8
Vote Solar's Response Brief on Reconsideration
Schedules 6 and 8. Compliance with safety standards and taking service under Schedules I and
7 are not mutually exclusive.
Conclusion
For the foregoing reasons, and for the reasons set forth in Vote Solar's Petition for
Reconsideration and Brief on Reconsideration, new Schedules 6 and 8 must be limited to bi-
directional customer-generators who export electricity to the grid.
DATED this 24th day of August, 2018
Respectfully submitted,
/s/ David Bender
David Bender (Admitted Pro Hac Vice)
Earttrjustice
3916 Nakoma Road
Madison, WI 53711
[phone], ext. 5228
dbender@earthj ustice. org
Counsel for Vote Solar
9
Vote Solar's Response Brief on Reconsideration
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have on or befbre this 24th day of August, 2018, served the
foregoing VOTE SOLAR'S RESPONSE 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
47 2 West Washington Street
Boise, ID 83702
D i ane. ho lt[n)p r-rc. idalio. go v
(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
ttatum@idahopower. com
caschenbrenner@ idahopower. com
IDAHO CONSERVATION LEAGUE
MatthewA. Nykiel
Idaho Conservation League
P.O. Box 2308
102 E. Euclid, #207
Sandpoint, ID 83864
[e-mail]
Sean Costello
Deputy Attorney General
Idaho Public Utilities Commission
47 2 West Washington (837 02)
PO Box 83720
Boise, ID 83720-0074
S ean. co stello @,puc. idaho. go v
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(Oarkoosh. c om
[::[e-mail]
Vote Solar's Response Brief on Reconsideration
l0
IDAHO IRRIGATION PUMPERS
ASSOCIATION, INC.
Idaho 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
E I i as. b i shop@,auri c so lar. com
Preston N. Carter
Deborah E. Nelson
Givens Pursley LLC
601 West Bannock Street
Boise, ID 83702
prestoncarter@ givenspursley.com
den@ qivenspurslev.com
VOTE SOLAR
David Bender
Earthjustice
3916 Nakoma Road
Madison, WI 5371I
ustlce
Briana Kobor
Vote Solar
360 22"d Street, Suite 730
Oakland, CA94612
votesolar.
SIERRA CLUB
Kelsey Jae Nunez
KELSEY JAE NTINEZ LLC
920 N. Clover Dr.
Boise, ID 83703
kelsey@kel seyj aenunez. com
Tom Beach
Crossborder Energy
2560 grh Street, Suite 2l34
Berkeley, CA947l0
tomb@crossborderenersy. com
Zack Waterman
IDAHO SIERRA CLUB
503 W. Franklin St.
Boise, ID 83702
Zach. waterman @sierracl ub. orq
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 8370i -0500
aqermaine@cityo fboi se. ore
IDAHO CLEAN ENERGY
ASSOCIATION
Preston N. Carter
Deborah E. Nelson
Givens Pursley LLC
601 West Bannock Street
Boise, ID 83702
prestoncarter@ givenspurslev. com
den@givenspursley. com
Vote Solar's Response Brief on Reconsideration
ll
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
wwil
NW Energy Coalition
[e-mail]
INTERMOUNTAIN WIND AND SOLAR,
LLC
Ryan B. Frazier
Brian W. Burnett
KIRTON McCONKIE
50 East South Temple, Suite 400
P.O. Box 45120
Salt Lake ciry, uT 84111
[e-mail]
[e-mail]
Intermountain Wind and Solar, LLC
1952 West 2425 South
Woods Cross, UT 84087
doue@,imwindandsolar. com
/s/ Nick Thorpe
Nick Thorpe, Litigation Assistant
Earttrjustice
Vote Solar's Response Brief on Reconsideration
t2