Item E-6: Commissioner James Danly Concurring in Part and Dissenting in Part on Broadview Solar, LLC

Commissioner James Danly Statement
June 17, 2021
Docket No. QF17-454-007
Item E-6

The Commission’s order today upholds its prior ruling[1] that Broadview Solar, LLC’s (Broadview) facility satisfies the statutory 80 MW power production capacity limit even though Broadview’s own Form 556 filing shows that the facility has a power production capacity of approximately 155 MW.[2]  I dissent from the central holding in today’s order that the actual power production capacity of Broadview’s facility is irrelevant because the facility is designed so as to be capable of delivering no more than 80 MW to the point of interconnection at any particular time.  As I explained in my dissent to the March 2021 Order, not a single word of the Commission’s “for-delivery-to-the-utility” standard, which was adopted in the March 2021 Order, appears anywhere in the text of the Public Utility Regulatory Policies Act of 1978 (PURPA) establishing the 80 MW power production capacity limit.[3]  As I explained in my dissent to the March 2021 Order, not a single word of the Commission’s “for-delivery-to-the-utility” standard, which was adopted in the March 2021 Order, appears anywhere in the text of the Public Utility Regulatory Policies Act of 1978 (PURPA) establishing the 80 MW power production capacity limit.[4]  Nor, as I also explained, does this standard find any support in the Commission’s regulations or precedent.[5]  Nothing in today’s order causes me to revise my opinion on these issues.

I do, however, agree with the Commission’s rejection of NorthWestern Corporation’s argument that Broadview’s 50 MW battery storage system must be considered part of the Broadview facility’s power production capacity,[6] albeit for somewhat different reasons.  In my view, batteries (and other storage systems) cannot be included in determining the “power production capacity” of a facility because, by definition, batteries (and other storage systems) do not “produce” power but simply store it for delivery at a later time.  There is no more support in the statutory language of PURPA for Northwestern’s position that batteries must be included in a facility’s power production capacity than there is in the Commission’s position that it is a facility’s delivery capability, and not its actual power production capacity, that counts towards the statutory 80 MW limit.

For these reasons, I respectfully concur in part and dissent in part.