20130204Response to Motion.pdf

DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
P0 BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NOS. 3366
FEBLiEII Supreme Court Crurt EnurJ on Ai S by:
Attorney for the Respondent on Appeal
Idaho Public Utilities Commission
IN THE SUPREME COURT OF THE STATE OF IDAHO
GROUSE CREEK WIND PARK, LLC and )
GROUSE CREEK WIND PARK II, LLC, )
)
Petitioners-Appellants, )
)
VS. )
)
IDAHO PUBLIC UTILITIES COMMISSION, )
)
Respondent-Respondent on Appeal, )
)
and )
)
IDAHO POWER COMPANY, )
)
Respondent-Intervenor/Respondent )
on Appeal. )
SUPREME COURT
DOCKET NO. 39151-2011
IPUC CASE NOS. IPC-E-10-61
IPC-E-10-62
IDAHO PUC'S RESPONSE TO
GROUSE CREEK WIND'S
MOTION TO EXPEDITE
ORAL ARGUMENT
COMES NOW the Idaho Public Utilities Commission ("Idaho PUC"), Respondent-
Respondent on Appeal, and pursuant to Idaho Appellate Rule 32(d), files this response to the
"Motion to Expedite" oral argument filed by Petitioners, Grouse Creek Wind Park and Grouse
Creek Wind Park II ("Grouse Creek"). While the Idaho PUC does not oppose the request to set
oral argument in August 2013,' the Idaho PUC does not agree with Grouse Creek's stated need
for expedited review.
The Idaho PUC understands that the Motion to Expedite only pertains to the scheduling of oral argument and does
not propose changing the standard briefmg schedule set out in I.A.R. 34(c). The court has ordered that Grouse
Creek's brief is due March 4, 2013.
IDAHO PUC'S RESPONSE TO
GROUSE CREEK WIND'S MOTION
TO EXPEDITE ORAL ARGUMENT
GROUSE CREEK'S MOTION
In its Motion, Grouse Creek indicates it will "suffer severe and irreversible economic
harm" if it has not started construction on its two wind farms before January 1, 2014. Motion at
14. The subject of this appeal is the Idaho PUC's Orders disapproving the two proposed power
purchase agreements for each wind farm. Id. at 11. In its Motion, Grouse Creek asserts that
absent expedited oral argument, there would not be sufficient time if it were to prevail for the
Commission to address the Court's opinion on remand and "adjust key contract terms and
conditions" so that Grouse Creek could then leek financing for "the [two wind farms] and start
construction" prior to the scheduled expiration of the federal production tax credits (PTC5) on
December 31, 2013. Id. at ¶ 5. In other words, Grouse Creek is not willing to "start
construction" until it first obtains and "close[s] construction financing." Affd. at 16.
IDAHO PVC STATEMENT
While the Idaho PUC does not dispute that "Grouse Creek 'must start construction'
before January 1, 2014" to be eligible for federal PTCs under the American Taxpayer Relief Act
of 2012 (the "fiscal cliff legislation")2, there is and has been no legal impediment to Grouse
Creek "starting construction" on its two wind farms prior to January 1, 2014. For example,
Grouse Creek could have started construction on its wind farms at any time after it filed its initial
Notice of Appeal in this matter on September 7, 2011, or after it filed its Amended Notice of
Appeal on October 19, 2012. R. at 536, 885. Moreover, Grouse Creek's Motion does not
disclose the amount it calculates to be 5% of the construction costs it suggests is necessary to
satisfy the IRS "safe harbor" requirement that construction has begun.
For the reasons set forth above, the Idaho PUC is not convinced that an expedited
hearing is required in this matter. Nevertheless, the Idaho PUC does not oppose Grouse Creek's
Motion to Expedite and set oral argument during the Supreme Court's August 2013 term.
2 H.R. 8, § 407(a)(3) at p. 70-71 (January 1, 2013) (providing for extension and modification of the production tax
credit for qualifying facilities "the construction of which begins before January 1, 2014"). Last viewed,
www.gpo.gov/fdsys/pkJBILLS. ii 2hr8eas/pdtYBILLS- 11 2hr8eas.12df.
IDAHO PUC'S RESPONSE TO
GROUSE CREEK WIND'S MOTION
TO EXPEDITE ORAL ARGUMENT 2
Respectfully submitted this 4" day of February 2013.
J444
Donald L. Ho eli, I
Deputy Attorney General
Attorney for the
Idaho Public Utilities Commission
0:Supreme Court:Response Grouse Creek Motion to Expeditedh
IDAHO PUC'S RESPONSE TO
GROUSE CREEK WIND'S MOTION
TO EXPEDITE ORAL ARGUMENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 4 " DAY OF FEBRUARY 2013,
SERVED THE FOREGOING RESPONSE TO GROUSE CREEK WIND'S MOTION FOR
EXPEDITED ORAL ARGUMENT, IN SUPREME COURT DOCKET NO. 39134-2011,
IPUC CASE NOS. IPC-E-10-61 AND IPC-E-10-62 BY E-MAILING A COPY THEREOF
TO THE FOLLOWING:
DONOVAN E. WALKER
IDAHO POWER COMPANY
P0 BOX 70
BOISE ID 83707-0070
E-MAIL: dwalker@idahoj,ower.com
RONALD L. WILLIAMS
WILLIAMS BRADBURY, P.C.
1015 W. HAYS STREET
BOISE, ID 83702
E-MAIL: [e-mail]