20210308Comments.pdf

C. Tom Arkoosh,ISB No.2253
ARKOOSH LAW OFFICES
802 W. Bannock Street, Suite LP 103
P.O. Box 2900
Boise,ID 83701
Telephone: [phone]
Facsimile: [phone]
Email : [e-mail]
Admin copy: [e-mail]
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Attorney for Wood Hydro, LLC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WOOD HYDRO, LLC,)
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Case No. IPC-E-20-28
Complainant.wooD HYDRO, LLC'S
COMMENTS
v
IDAHO POWER COMPANY,
Respondent/Cross-Complainant,
v
WOOD HYDRO, LLC,
Cross-Respondent,
ENEL GREEN POWER NORTH AMERICA,
[NC.,
Cross-Respondent,
v
CENTRAL RTVERS POWER US, LLC,
Cross-Respondent.
WOOD HYDRO, LLC'S COMMENTS - PAGE I
COMES NOW the Complainant, Wood Hydro, LLC ("Wood Hydro"), by and through its
counsel of record, C. Tom Arkoosh of Arkoosh Law Offices, and hereby submits the following
comments.
First, Wood Hydro has read and concurs in the comments of ENEL Green Power North
America, lnc., ("ENEL") and hereby adopts the same with the following additions and
clarifications.
Wood Hydro conducted repairs and upgrades of their facility preventing delivery of
electrical power from April through apart of July 2020. Idaho Power Company ("Idaho Power")
deemed this to be a "permanent curtailment" under the contract. The Complaint in this action
pointed out the following:
o ContractLanguage:
The contract provides for penalties only for "permanent curtailment." A curtailment of
less than four months is not "permanent" in a 30-year contract. The clear language of the contract
itself is not applicable to the circumstance before the Commission. This is the major reason for the
settlement between the parties. Idaho Power's reason for insisting upon the current 90/ll0 firm
energy delivery band was the realization that although previous contracts required a one-time
annual estimate, there existed no penalty for intermittent non-delivery ofpower in an older contract
of the type before the Commission, only for "permanent curtailment."
o Liquidated Damages:
The liquidated damages clause must meet both a prospective and retrospective test in order
to be enforceable. Prospectively, the actual damages must be difficult to ascertain. Retrospectively,
the liquidated damages must be a reasonable approximation of actual damages. The liquidated
WOOD HYDRO, LLC'S COMMENTS - PAGE 2
damages clause in the agreements before the Court meets neither of these criteria. Prospectively,
energy markets are available on a day-by-day, moment-by-moment basis, indicating how much
Idaho Power was or was not damaged from April to July 2020 from the non-delivery of power (if
the contract had an actual delivery amount versus an estimated amount). Retrospectively, because
there is an easy way to calculate what the damages were or were not, and the actual damages were
much less than the liquidated damages, the liquidated damages clause further fails to qualiff for
enforcement.
o Subject Matter Jurisdiction:
The other two parties in this matter have raised an interesting question regarding subject
matter jurisdiction of the Commission to enforce contracts. While based upon the actual language
of the contract Wood Hydro's Complaint conceded subject matter jurisdiction, as a maffer of law,
subject matter jurisdiction cannot be waived by the parties. Idaho State Ins. Fund By & Through
Forney v. Turner, 130 Idaho 190 (1997). Thus, the issue remains extant for all three parties.
o Idaho Energy Policy:
Through House Joint Resolution (HJR I 3) in 2007 , the ldaho Legislature adopted the 2007
Idaho Energy Plan ("Plan"). That Plan prioritized preferable resources going forward into the
future as conservation first, and renewables second. Atpage 4 of the Plan, the Legislature indicated
that, "the Idaho PUC should administer its responsibilities under the Public Utility Regulatory
Policy Act in a way that encourages the development of customer-owned renewable generation
and combined heat and power facilities."
To put a finer point upon it, the 2019 Legislature in House Concurrent Resolution (HCR
9) concluded that,
WOOD HYDRO, LLC'S COMMENTS _ PAGE 3
Now, therefore it be resolved by the members of the first regular session of the 65th
Idaho Legislature, House of Representatives and the Senate concurring therein, that
we recognize hydropower as our state's greatest renewable resource and further
recognize the immense benefit hydropower provides to our state as a carbon-free,
inexpensive electrical power source and as an economic driver for tourism,
recreation, and agriculture in Idaho.
The significance of Idaho's Energy Plan as it intersects the settlement in this case
demonstrates that in some instances the unwarranted penalization for these plants being offline for
repair and upgrade ranges from damaging to permanently putting hydropower offline in
contravention of the state's energy policy. The settlement in this case, however, not only treats
both sides fairly, but coincides exactly with the state's Energy Plan settled by the Legislature for
the benefit of Idaho citizens, thus Idaho ratepayers. Rejection of the settlement would do the
contrary.
CONCLUSION
Therefore, the Commission is respectfully requested to adopt, sanction, and ratifi the
current settlement currently before it in the interest of the parties and, as set forth in the State's
energy plan in the interest of ratepayers of the utility party.
DATED this 8th day of Marchz}zl.
ARKOOSH LAW OFFICES
C. Tom Arkoosh
Attorneys for Complainant
Wood Hydro, LLC
WOOD HYDRO, LLC'S COMMENTS _ PAGE 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 8m day of March2O2l,I served a true and correct copy
of the foregoing document upon the following named parties by the method indicated below, and
addressed to the following:
Idaho Public Utilities Commission
Commission Secretary
P.O. Box 83720
Boise,lD 83720-0074
Email: secretary@puc. idaho. gov
Hand Delivered
_U.S. Mail
_Overnight Mail
_FAXX Email
Idaho Power Company
Donovan E. Walker
Energy Contracts
Idaho Power Company
1221 West Idaho Street 183702)
P.O. Box 70
Boise,ID 83707-0070
Email : dwalker@.idahopower.com
Hand Delivered
_U.S. Mail
_Overnight Mail
_FAXX Email
dockets@ idahopower.com
energycontracts@ idahopower.com
Enel Green Power North America,Inc.
Gregory M. Adams
Richardson Adams PLLC
515 N.27ft Street
Boise,lD 83702
Email: [e-mail]
Hand Delivered
_U.S. Mail
_Overnight Mail
_FAXX Email
Central Rivers Power US, LLC
Preston N. Carter
Givens Pursley LLP
601 W. Bannock St.
Boise,lD 83702
Email: [e-mail]
Hand Delivered
_U.S. Mail
_Overnight Mail
_FAXX Email
C. Tom Arkoosh
WOOD HYDRO, LLC'S COMMENTS _ PAGE 5