20211229Response to ICIP and ICL Motions.pdf

DONOVAN WALKER
Lead Counsel
[e-mail]
December 29, 2021
VIA ELECTRONIC FILING
Jan Noriyuki, Secretary
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg 8,
Suite 201-A (83714)
PO Box 83720
Boise, Idaho 83720-0074
Re: Case No. IPC-E-21-41
In The Matter Of Idaho Power Company’s Application For Authority to
Proceed with Resource Procurements to Meet Identified Capacity
Deficiencies in 2023, 2024, and 2025 to Ensure Adequate, Reliable, and
Fair-Priced Service to its Customers
Dear Ms. Noriyuki:
Enclosed for electronic filing, please find Idaho Power Company’s Response to
ICIP’s and ICL’s Motions to Dismiss in the above matter. Please feel free to contact me
directly with any questions you might have about this filing.
Very truly yours,
Donovan E. Walker
DEW:cld
Enclosures
RECEIVED
2021 DEC 29 PM 2:30
IDAHO PUBLIC
UTILITIES COMMISSION
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 1
DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorney for Idaho Power Company

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF IDAHO POWER
COMPANY’S APPLICATION FOR
AUTHORITY TO PROCEED WITH
RESOURCE PROCUREMENTS TO MEET
IDENTIFIED CAPACITY DEFICIENCIES IN
2023, 2024, AND 2025 TO ENSURE
ADEQUATE, RELIEABLE, AND FAIR-
PRICED SERVICE TO ITS CUSTOMERS

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CASE NO. IPC-E-21-41

IDAHO POWER COMPANY’S
RESPONSE TO ICIP’S AND
ICL’S MOTIONS TO DISMISS

Idaho Power Company (“Idaho Power” or “Company”), in accordance with RP 56
and 256 hereby respectfully Answers and Responds to the Motion filed by the Industrial
Customers of Idaho (“ICIP”) on December 15, 2021, and the joinder by the Idaho
Conservation League (“ICL”) in ICIP’s Motion filed on December 22, 2021.1 As set forth
herein, ICIP’s Motion should be denied.
I. INTRODUCTION
On December 3, 2021, Idaho Power filed the Application in this matter seeking
authority to proceed with resource procurements to meet identified capacity deficiencies
in 2023, 2024, and 2025 in order to ensure adequate, reliable, and fair-priced service to

1 ICL provided no substantive argument or input other than, “we support the positions and facts asserted
by both of these intervenors [IdaHydro and ICIP].” Consequently, Idaho Power’s Response to both
IdaHydro and to ICIP’s Motions is meant to equally respond to ICL’s attempted joinder in the arguments
of those Parties.
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 2
its customers. On December 15, 2021, ICIP filed a Motion to Dismiss Idaho Power’s
Application. ICIP subsequently petitioned for intervention on December 17, 2021. ICL
filed on December 22, 2021, seeking to join in ICIP’s Motion and arguments. ICIP’s
Motion to Dismiss is based upon its allegations: 1) that Idaho Power’s Application is a
“duplication of proceedings” with ICIP’s previously filed Petition for an Order to Show
Cause, Case No. IPC-E-21-19 (“ICIP’s Petition”); 2) that Idaho Power has “unclean
hands” in seeking relief from the application of Oregon’s competitive procurement rules;
and 3) that “Idaho Power’s Substantive Arguments Also Fail”.
Idaho Power’s Application is clearly not the initiation of duplicate proceedings with
ICIP’s Petition for an Order to Show Cause. The allegation of “unclean hands” is false
and has no application to Idaho Power’s ability to lawfully seek waiver, relief, and/or
authority from its regulators. Whether or not “Idaho Power’s Substantive Arguments Also
Fail” is for the Commission’s determination in the proceedings initiated in this case.
Consequently, ICIP’s Motion to Dismiss should be denied.
II. RESPONSE TO MOTION TO DISMISS
A. Duplication of Proceedings - ICIP’s claim that Idaho Power’s Application
in IPC-E-21-41 is an impermissible duplication of proceedings to ICIP’s previously filed
Petition for an Order to Show Cause in IPC-E-21-19 is clearly, on its face, incorrect. They
are not duplicate proceedings. ICIP’s Petition asks, “That the Commission enter an Order
to Show Cause directing Idaho Power to show cause why the Commission should not
enter an order requiring it to comply with Idaho PUC Order No. 32475 and the Oregon
RFP guidelines (Rule 860-089-0010, et. seq.)”2 ICIP Petition, p 4. Idaho Power filed an

2 IPUC Order No. 32475 directs Idaho Power “to comply with RFP guidelines applicable in its Oregon
service area, should the Company commence an RFP process for a new supply-side resource prior to the
development of Idaho-specific RFP guidelines.”
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 3
Answer fully responding to ICIP’s Petition and by ICIP’s own admission IPC-E-21-19
“appears to be fully submitted for an Idaho Commission ruling”. ICIP’s Motion, p 3. Idaho
Power’s Answer provides the actual Request for Proposals (“RFP”) that was issued
pursuant to the Notice of Intent cited by ICIP in its Petition. This RFP is for a generation
resource for up to 80 MW of capacity to be online by Summer 2023. The Public Utility
Commission of Oregon’s (“Oregon Commission” or “OPUC”) resource procurement rules
only apply to resource acquisitions above 80 MW. OAR 860-089-0100(1)(a).3
ICIP’s Petition was based upon Idaho Power’s issuance of a Notice of Intent to
seek requests for proposals that was issued on May 21, 2021 (‘NOI”). This NOI was
followed by issuance of Idaho Power’s 2021 All Source Request for Proposals (RFP) for
Peak Capacity Resources on June 30, 2021, (“2021 RFP”). ICIP’s Petition was filed on
June 14, 2021, subsequent to the May issuance of the NOI, but prior to the June 30,
2021, issuance of the 2021 RFP. ICIP argued that Idaho Power by issuing the NOI had
initiated an RFP for approximately 480 MW of new capacity. ICIP Petition, p 2.
Idaho Power filed its Answer to ICIP’s Petition on July 2, 2021. Idaho Power
provided a copy of the 2021 RFP, issued on June 30, 2021, as Attachment 1 to its Answer
to ICIP’s Petition. The 2021 RFP, which the NOI gave prior notice of, seeks to acquire
resources for up to 80 MW of capacity to be online by Summer 2023, which is below the
threshold for applicability of the Oregon Commission’s resource procurement rules. In
the Company’s Answer to ICIP’s Petition it stated,
The 2021 RFP addresses only the identified capacity deficit
for Summer 2023, up to 80 MW, which is outside of the
applicability of the Oregon resource procurement rules.
Should additional RFPs or other procurements be necessary

3 “An electric company must comply with the rules in this division when it seeks to acquire generating or
storage resources or to contract for energy or capacity if any of the following apply: (a) The acquisition is
of a resource or contract for more than an aggregate of 80 megawatts and five years in length …” OAR
860-089-0100(1)(a).
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 4
beyond 2023 and 80 MW Idaho Power will comply with the
Oregon procurement rules, if applicable, or seek a waiver for
a particular acquisition or application of the procurement
rules.

Idaho Power Answer, Case No. IPC-E-21-19, p 3.
Consistent with Idaho Power’s statements in its Answer to ICIP’s Petition, on
December 3, 2021, Idaho Power filed its Application for Authority to Proceed with
Resource Procurements to Meet Identified Capacity Deficiencies in 2023, 2024, and 2025
to Ensure Adequate, Reliable, and Fair-Priced Service to its Customers. Case No. IPC-
E-21-41. This is not a duplicate proceeding to ICIP’s Petition. Idaho Power demonstrated
in its Answer to ICIP’s Petition that the procurement that ICIP was alleging to be in
violation of the OPUC’s procurement rules was exempt from said rules. Idaho Power’s
Application in IPC-E-21-41 is addressed toward the necessary future procurements
required to meet identified capacity deficiencies beyond the initial 80 MW identified in
Summer 2023. The OPUC rules provide for seeking waiver of the applicability of said
rules: “Upon request or its own motion, the Commission [OPUC] may waive any of the
Division 089 rules for good cause shown. A request for waiver must be made in writing
to the Commission [OPUC] prior to or concurrent with the initiation of a resource
acquisition.” OAR 860-089-0010(2). On December 9, 2021, Idaho Power filed an
Application for Waiver of Competitive Bidding Rules with the Oregon Commission. OPUC
Case No. UM 2210. Idaho Power’s Application in IPC-E-21-41 addresses three specific
requests for relief that address acquisitions beyond the initial 80 MW RFP for Summer
2023 and are not duplicates of ICIP’s Petition:
Idaho Power requests that the Commission issue an order:
(1) eliminating the IPUC requirement to comply with OPUC
Resource Procurement Rules; (2) authorizing Idaho Power to
move forward expeditiously with resource procurements to
meet identified generation resource needs in 2023, 2024, and
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 5
2025; and (3) affirming support and the continuation of the
state of Idaho’s system of public utility regulation under which
the interests of customers are best served by a vertically
integrated electric utility maintaining ownership of the
necessary generation, transmission and distribution utility
functions, with limited exceptions.

Idaho Power Application, Case No. IPC-E-21-41, p 34.
Additionally, the case cited by ICIP for authority on “duplication of proceedings”
does not support ICIP’s claims. ICIP cites to Curtis v. Citibank, N.A., 226 F.3d 133 (2d
Cir.2000) as its “black letter law” authority that “two actions on the same subject in the
same court, against the same defendant at the same time” is impermissible. ICIP Motion,
p 4. ICIP provides no support as to whether or how Idaho Power’s Application is a
duplicate of ICIP’s Petition. In fact, the Curtis case cited by ICIP, deals with a civil suit
where the plaintiff filed two consecutive complaints against the same party arising from
the same incident. Curtis v. Citibank, N.A., 226 F.3d 133, 136 (2d Cir.2000). The Court
of Appeals allowed additional claims made in the second complaint to proceed. Id., at
140-141.
Idaho Power’s Application seeking authority to proceed with required resource
acquisitions, beyond the 2021 RFP seeking up to 80 MW of capacity, is not a duplicate
proceeding to ICIP’s petition to show cause why Idaho Power’s NOI and 2021 80 MW
RFP are in compliance with the OPUC’s procurement rules. Idaho Power fully Answered
the ICIP Petition and clearly demonstrated that the 2021 RFP is exempt from the OPUC
procurement rules. The IPC-E-21-41 Application addresses additional required
procurements, and additional requests for relief that are not duplicates and not implicated
in the ICIP Petition. ICIP’s Motion to Dismiss should be denied.

IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 6
B. Unclean Hands - ICIP, just as it did in its Petition, again makes allegations
against Idaho Power based upon speculation, false and misleading statements, and its
premature assumption that Idaho Power is not compliant with the OPUC procurement
rules. ICIP alleges that Idaho Power is not allowed to seek waiver of the OPUC rules,
nor to seek that the Idaho Commission grant authority to the Company to proceed with
resource acquisitions outside of the OPUC rules because it has not in the past sought to
“challenge or seek amendments or ‘fixes’ to those requirements.” ICIP Motion, p 5. This
simply is not correct. Idaho Power’s Application in IPC-E-21-41, as well as its Application
to the OPUC in UM 2210, properly seeks authority and waiver at the proper time (prior to
or concurrent with the initiation of a procurement) without violation of applicable rules or
orders.
ICIP states numerous times that Idaho Power in its Answer to ICIP’s Petition stated
it intended to fully comply with and follow the OPUC procurement rules (ICIP Motion, p 2,
3, 5, 6, 7) and that this somehow should preclude Idaho Power from seeking waiver or
relief from their applicability and shows “unclean hands.” This is patently incorrect. ICIP
chooses to only repeat the first part of Idaho Power’s statement of intent to follow the
rules. What Idaho Power said in its Answer is,
It is Idaho Power’s full intent to comply with the requirements
of OAR 860-089-0010 et seq, the Resource Procurement
Rules required by the Oregon Commission, and prior [to] the
issuance of an RFP for a resource acquisition larger than
80 MW and longer than 5 years will commence the proper
proceedings and/or procedures to either comply with the
Oregon procurement rules or seek a waiver of their
applicability regarding a particular acquisition.

IPC’s Answer, Case No. IPC-E-21-19, p 2-3 (emphasis added). Idaho Power again
reiterated,
The 2021 RFP addresses only the identified capacity deficit
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 7
for Summer 2023, up to 80 MW, which is outside of the
applicability of the Oregon resource procurement rules.
Should additional RFPs or other procurements be
necessary beyond 2023 and 80 MW Idaho Power will
comply with the Oregon procurement rules, if applicable,
or seek a waiver for a particular acquisition or application
of the procurement rules.

Id., p 3 (emphasis added). The OPUC procurement rules themselves provide express
authority to seek waiver of their applicability for good cause shown by request made prior
to or concurrent the initiation of the procurement. Idaho Power has filed such waiver
request with the OPUC. Case No. UM 2210. Similarly, Idaho Power has asked the Idaho
Commission to eliminate its requirement that Idaho Power follow the OPUC procurement
rules, and for authority to proceed with resource acquisitions on an expedited basis to
meet near term identified capacity deficits needed to maintain adequate and reliable
service and keep the lights on in its service territory.
Idaho Power is not ignoring the OPUC rules, nor the IPUC’s direction to follow
them in Order No. 32475. Idaho Power is aware of these requirements and is proceeding
within said requirements and within its rights to seek modification of those requirements
from its regulators based upon current facts, circumstances, and conditions. This does
not represent “unclean hands” but is evidence of the opposite - of Idaho Power bringing
these present facts, circumstances, and conditions into the light and to its regulators for
determination of how to proceed in the public interest. ICIP’s Motion to Dismiss should
be denied.
C. Timing - Lastly, ICIP argues that “Idaho Power’s Substantive Arguments
Also Fail” and as support says that the Company could have initiated an RFP process
under the OPUC procurement rules and presumably had time to acquire those resources
in time to meet the identified capacity deficits. ICIP provides no support for the required
IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 8
time that it would take to go through the required steps, procedures, approvals, etc.
required of the OPUC procurement rules in relation to the time it takes to construct and
bring such resources online in comparison to the immediacy of the identified capacity
deficits in 2023, 2024, and 2025. Conversely, Idaho Power provided pages of information
regarding the unanticipated development of large capacity deficits, the long time period
required to go through the OPUC procurement process, the short time in which to develop
and bring such resources online, the continuing supply chain disruption from the global
pandemic which also is causing other contracted resources to potentially not meet time
deadlines, etc. Clearly, a drawn-out process that can take in excess of 18-24 months,
just to arrive at a short-list of bidders will not work to develop projects to meet capacity
deficits in 2023, 2024, and 2025. See IPC’s Application, p 13-15. Whether or not “Idaho
Power’s Substantive Arguments Also Fail” is for the Commission’s determination in the
proceedings initiated in this case. ICIP’s Motion to Dismiss should be denied.
III. CONCLUSION AND REQUEST FOR RELIEF
Idaho Power’s Application is clearly not the initiation of duplicate proceedings with
ICIP’s Petition for an Order to Show Cause. The allegation of “unclean hands” is false
and has no application to Idaho Power’s ability to lawfully seek waiver, relief, and/or
authority from its regulators. A procurement process that followed the timeline and
procedures set forth in the OPUC procurement rules would not allow enough time to
procure resources to meet the identified capacity deficits, and whether or not “Idaho
Power’s Substantive Arguments Also Fail” is for the Commission’s determination in the
proceedings initiated in this case.
Idaho Power respectfully requests that the Commission issue an order denying
ICIP’s Motion to Dismiss.

IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 9
Respectfully submitted this 29th day of December 2021.

DONOVAN E. WALKER
Attorney for Idaho Power Company

IDAHO POWER COMPANY’S RESPONSE TO ICIP’S AND ICL’S MOTIONS TO DISMISS - 10
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 29th day of December 2021 I served a true and
correct copy of the within and foregoing Idaho Power Company’s Response to ICIP’s and
ICL’s Motions to Dismiss upon the following named parties by the method indicated
below, and addressed to the following:

John Hammond
Deputy Attorney General
Idaho Public Utilities Commission
Po Box 83720
Boise, Idaho 83720-0074

Emailed to:
[e-mail]
Industrial Customers of Idaho Power
Peter J. Richardson ISB # 3195
Gregory M. Adams ISB # 7454
RICHARDSON ADAMS, PLLC
515 N. 27th Street
Boise, Idaho 83702

Emailed to:
[e-mail]
[e-mail]

IdaHydro
C. Tom Arkoosh
ARKOOSH LAW OFFICES
913 w. River Street, Suite 450
P.O. Box 2900
Boise, ID 83701

Emailed to:
[e-mail]
[e-mail]
Idaho Conservation League
Benjamin J. Otto
710 North 6th Street
Boise, ID 83701
Emailed to:
[e-mail]

________________________________
Christy Davenport, Legal Assistant