Docket No. EL24-54-000
I concur in today’s order because I agree this Commission should decline to take enforcement action. I write separately to state that I find persuasive the various arguments raised by the National Association of Regulatory Utility Commissioners (NARUC), the Public Trade Associations (made up of the American Public Power Association (APPA), the Large Public Power Council (LPPC), and the National Rural Electric Cooperative Association (NRECA)) and Salt River Project Agricultural Improvement and Power District (SRP), to wit, that the issues presented in the underlying Petition for Enforcement are state issues, which should be addressed at the state level, not at the federal level.[1]
For these reasons, I respectfully concur.
[1] See, e.g., NARUC Feb. 20, 2024 Motion to Dismiss at 3 (emphasis in original) (“Petitioners’ claims are matters clearly outside FERC’s jurisdiction. Petitioners raise as-applied challenges to SRP’s rates that are subject to exclusive state jurisdiction—not PURPA implementation challenges. Petitioners challenge SRP’s rate design as applied to retail customers with rooftop solar PV panels located behind-the-meter. Such challenges to retail rates are subject to exclusive state jurisdiction. Moreover, Petitioners have not established that they are entitled to PURPA rights for their behind-the-meter rooftop solar panels. Petitioners take service from SRP as residential customers, and there is no evidence in the record of this proceeding that they ever asked SRP to purchase from, or sell power to, them as qualifying facilities [(QF)] under PURPA.”); id. at 4 (“Both FERC and federal courts have found that questions concerning rate discrimination and the calculation of avoided costs under PURPA are as-applied issues subject to state jurisdiction. . . . The retail rate classifications SRP makes available to residential solar customers appear to provide for net metering of electricity for participating customers. Net metering has been an established feature of retail electric rates and state energy policy across the nation for decades.”); id. at 5-6; NARUC Mar. 17, 2024 Answer at 3-8 (footnote omitted) (“Petitioners assert that they are qualifying facilities entitled to PURPA, but PURPA concerns sales of power by small power production facilities to utilities. If a small power production facility is not selling any electricity to the utility, PURPA does not apply. Petitioners have not alleged that any such sale takes place here. Petitioners’ residences are connected to SRP’s distribution grid, and their roof-top power production facilities are located behind the distribution meter. The Commission has long held that the utility does not engage in any purchase of electricity from a generator that is connected behind the customer’s meter so long as the customer is an overall net consumer of electricity during a billing period.”); id. at 4-8; Public Trade Associations Feb. 12, 2024 Protest at 1-2 (“Petitioners present no case that SRP has failed to implement PURPA section 210, since Petitioners have not offered to sell power to, or requested to purchase power from, SRP under PURPA. Further, Petitioners have not demonstrated whether and to what extent they have power to sell to SRP subject to PURPA’s requirements. Nor does Petitioners’ claim that SRP’s retail rates are discriminatory under PURPA section 210 warrant Commission action. SRP’s sales rates as to Petitioners are a retail rate matter.”); id. at 9 (emphasis in original) (“[I]nstead of offering to sell energy, or requesting to purchase energy, under PURPA section 210, the Petitioners have chosen to participate in a retail sales program designed to balance SRP’s retail obligations and rate equity among customer classes, while integrating customer-owned facilities. The program was not designed to satisfy PURPA’s requirements.”); id. at 10-15; SRP Feb. 12, 2024 Motion to Dismiss and Protest at 2-3 (footnotes omitted) (“Both Congress and federal courts have made clear that disputes over whether a state regulator or a utility providing retail electric service has implemented PURPA ‘improperly,’ including technical, fact-bound determinations over how to calculate avoided costs, are subject to exclusive state jurisdiction. Here, Petitioners challenge SRP’s retail rates as applied to residential solar customers, which is outside the Commission’s jurisdiction under PURPA Section 210(h)(2). The Petition is an improper collateral attack on SRP’s 2019 retail rates; Petitioners could have participated in SRP’s 2019 price process and challenged those rates in state court under Arizona state law—but they failed to do so. Finally, PURPA does not apply to Petitioners or to the residential solar price plans they challenge.”); id. at 6-7 (“The Petition assumes that PURPA applies to Petitioners and their challenges. This assumption is erroneous. As Petitioners explain, they are residential customers who take retail electric service from SRP. They can choose to take residential service from SRP under four different available price plans, which variously provide for net metering of, or export revenue for, the solar panels on their rooftops. SRP’s 2019 price process did not establish . . . [QF] rates. The price plans at issue . . . are not SRP’s implementation of FERC’s PURPA regulations; they are residential retail rates. Nor have Petitioners asserted outside of the Petition that they are QFs or sought QF services from SRP.”).