in-the-matter-of-xcels-request-to-issue-renewable-development-fund-cycle-4 ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1006
In the Matter of Xcel's Request to Issue Renewable
Development Fund Cycle 4 Requests for Proposals and
Petition for Approval of a Standard Grant Contract.
Filed May 18, 2015
Affirmed
Hudson, Judge
Minnesota Public Utilities Commission
File No. E-002/M-12-1278
David J. Zoll, Charles N. Nauen, Kristen G. Marttila, Lockridge Grindal Nauen, P.L.L.P.,
Minneapolis, Minnesota; and
Thomas Melone (pro hac vice), Ecos Energy LLC, Minneapolis, Minnesota (for relator
Minnesota Go Solar, LLC)
Michael C. Krikava, Thomas Erik Bailey, Kodi Jean Church, Briggs and Morgan, PA,
Minneapolis, Minnesota; and
Mara N. Koeller, Xcel Energy Inc., Minneapolis, Minnesota (for respondent Northern
States Power Company, d/b/a Xcel Energy, Inc.)
Lori Swanson, Attorney General, Anjali V. Shankar, Assistant Attorney General,
St. Paul, Minnesota (for respondent Minnesota Public Utilities Commission)
Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and
Stoneburner, Judge. ∗
∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HUDSON, Judge
In this certiorari appeal, relator challenges respondent public utility commission’s
denial, based on the recommendations of respondent utility, of relator’s application for a
renewable-development-fund (RDF) grant. Relator argues that respondent commission
(1) failed to follow the statutory funding directives of giving preference to the most cost-
effective proposals and strongly considering the benefits to Minnesotans, (2) failed to
address record evidence supporting relator’s application, and (3) did not accord relator
due process. We affirm.
FACTS
In 1994, to promote renewable energy, the Minnesota legislature established the
RDF to administer and distribute funds collected from the ratepayers of respondent
Northern States Power Company, d/b/a Xcel Energy. See Minn. Stat. § 116C.779 (2014).
The legislation requires Xcel to deposit funds into the RDF based on the volume of spent
nuclear fuel maintained in Xcel’s nuclear-power plants. Id., subd. 1. Respondent
Minnesota Public Utilities Commission (MPUC) approves grants for RDF funding after
recommendations by Xcel, which consults with an advisory board on those
recommendations. See id.
In 2012, after a legislative audit report recommended changes to the RDF
program, the Minnesota legislature amended the program’s governing statute. See 2012
Minn. laws. ch. 196, § 1, at 276–77; Minn. Stat. § 116C.779. The amended statute
provides that “[a] request for proposal [RFP] for renewable energy generation projects
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must, when feasible and reasonable, give preference to projects that are most cost-
effective for a particular energy source.” Minn. Stat. § 116C.779, subd. 1(h). It also
provides that, in selecting projects for proposed funding, Xcel “must strongly consider,
where reasonable, potential benefit to Minnesota citizens and the utility’s ratepayers.”
Id., subd. 1(f). Xcel must use an independent third-party expert, along with the advisory
board, to evaluate proposals submitted in response to an RFP. Id. The MPUC may
disapprove recommended projects, but it cannot modify those selections without Xcel’s
agreement. Id., subd. 1(e).
In 2013, in response to Xcel’s RFP for the fourth RDF funding cycle, relator Go
Solar, LLC, submitted a $7.4-million proposal for 20 one-megawatt solar projects at
separate locations on the electrical grid in southeast and southwest Minnesota. The
proposed project contemplated a long-term power purchase agreement (PPA) at Xcel’s
project-avoided cost, with a fixed production incentive from solar renewable-energy
credits over a 25-year term. It had stated goals of doubling Xcel’s solar generating
capacity and creating a template for a solar renewable-energy-credit program.
In the fourth funding cycle, Xcel received 46 proposals for energy-production
projects, including Go Solar’s project, and 18 proposals for research-and-development
(R&D) projects. The independent expert first reviewed and rated the proposals. The
independent expert gave Go Solar’s proposal the highest total overall score, ranking it
highest in terms of total jobs created and highest among energy-production projects for
potential benefit to Minnesota and ratepayers, which was weighted 10% for energy-
production projects and 40% for R&D projects. Go Solar asserts that it should have also
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been ranked first in cost-effectiveness because it provided the best value per RDF grant
dollar and was priced at avoided costs, which was lower than other solar-energy
proposals, which were priced at net-metering, or retail, prices. But the independent
expert used a different metric, total resource cost (TRC), and ranked Go Solar’s project in
the midrange of energy-production proposals for cost effectiveness.
The advisory board then reviewed a list of proposals, considering the independent
expert’s evaluation as well as qualitative factors, including diversity in location, project
types, and technology. Advisory board members noted that the independent expert rated
Go Solar’s proposal high in every area; that it was a large project; that its “[p]rice was
good”; and that its 25-year PPA was longer than typical 15-20 year PPAs. But advisory
group members also expressed concerns that the proposed four-month timeline to
negotiate PPAs was too short; that Go Solar was capable, but wished to negotiate one
PPA for the entire project; that its site locations were open, which added uncertainty; that
it was a “[g]ood, but very expensive project” and not suitable for RDF funding; and that
the solar renewable-energy-credit proposal was “interesting, but . . . need[ed] more
perspective.” The advisory group did not recommend Go Solar’s proposal to Xcel for
funding.
Xcel submitted an initial project selection report and two later supplemental
reports to the MPUC, noting its agreement with the advisory group’s concerns. Go Solar
filed a petition to intervene and requested a contested-case hearing, arguing that
significant issues not addressed in the selection process could be resolved only through a
contested-case hearing. The Minnesota Department of Commerce and other stakeholders
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also filed comments. After an audit corrected technical scoring errors, which did not
affect Go Solar’s proposal, Xcel filed reply comments with a selection-report summary
and supplements for the MPUC review. Those comments observed that Go Solar had
received the highest technical score of EP proposals, but also that
[the project w]as disfavored by the advisory group as it would
require too large of a portion of the funds anticipated to be
awarded to EP projects (over a third of available funds). The
energy price per kWh was high relative to other proposals and
the locations for constructing the facilities were still open,
which adds uncertainty. From prior experience, RDF
proposals that do not have specific sites identified or a very
clear plan to identify sites have significant project delays.
Further, the overall timeline proposed for the project was not
long enough based on the Company’s prior experiences
negotiating power purchase agreements for projects of the
scale proposed.
Xcel recommended funding for 13 EP projects, in amounts ranging from $310,310
to $5,000,000. It recommended reserve funding for nine EP projects and no funding for
24 EP projects, including Go Solar’s project.
The MPUC issued a decision approving Xcel’s recommended projects and some
of the reserve projects and denying Go Solar’s contested-case-hearing request. The
MPUC found that the RFP had notified bidders that selections would be based both on
the independent expert’s technical score and the advisory group’s subjective
recommendations, which it deemed a reasonable approach “because it gave Xcel the
necessary leeway to select a diverse mix of unique and innovative projects.” The MPUC
found that the selected projects were likely to further RDF statutory goals by increasing
the renewable-energy market penetration at reasonable costs; promoting the startup,
5
expansion, and attraction of renewable companies and projects in Minnesota; stimulating
research and development in renewable technology; and developing demonstration-scale
and near-commercial renewable electric generation projects. See Minn. Stat. § 116C.779,
subd. 1(d) (stating those goals). However, based on comments and lessons learned in the
RFP and selection process, the MPUC also required Xcel to make a “compliance filing”
with proposals for improving transparency in the selection process. Go Solar requested
reconsideration, which was denied. This certiorari appeal follows.
DECISION
This court may reverse, remand, or modify an administrative agency decision if
that decision is, among other deficiencies, affected by legal error, unsupported by
substantial evidence in the record as a whole, or arbitrary and capricious. Minn. Stat.
§ 14.69 (2014). Go Solar argues that the MPUC committed legal error by failing to
properly follow the statutory directives for awarding RDF funds under Minn. Stat.
§ 116C.779, subd. 1(f), (h) (2014), and that the decision not to grant Go Solar RDF
funding was arbitrary and capricious and unsupported by substantial evidence.
I
Consideration of factors not in statute
Go Solar argues that in selecting RDF projects based on Xcel’s recommendations,
Xcel and the MPUC impermissibly considered factors not specifically listed in Minn.
Stat. § 116C.779. Generally, an agency’s decision is presumed correct, and this court
affords deference to an agency in its field of expertise. Reserve Mining Co. v. Herbst,
256 N.W.2d 808, 824 (Minn. 1977). But we review matters of statutory interpretation
6
de novo. In re Application of N. State Power Co. for Approval of its 1998 Res. Plan, 604
N.W.2d 386, 390 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000). Nonetheless,
“when a statute is couched in general terms, the agency is left the duty of determining
precisely what standards will fulfill the . . . policy enunciated by the legislature.” Id.(quotation omitted).
If a statute’s plain language is clear, this court applies that language. In re
Application of Minn. Power, 838 N.W.2d 747, 754 (Minn. 2013). We construe the
statute as a whole, giving effect to all of its provisions, and consider its words and
sentences in light of their context. Id.; see also Minn. Stat. § 645.16 (2014). We apply
canons of construction to discern a statute’s meaning only if the statute is ambiguous,
which occurs if the text is subject to more than one reasonable interpretation. Billion v.
Comm’r of Revenue, 827 N.W.2d 773, 777 (Minn. 2013); Brayton v. Pawlenty, 781
N.W.2d 357, 363 (Minn. 2010).
By statute, “[an RFP] for renewable energy generation projects must, when
feasible and reasonable, give preference to projects that are most cost-effective for a
particular energy source.” Minn. Stat. § 116C.779, subd. 1(h). And “in evaluating
responses to [RFPs], the public utility must strongly consider, where reasonable, potential
benefit to Minnesota citizens and businesses and the utility’s ratepayers.” Id., subd. 1(f).
Go Solar argues that under the principle of expressio unius est exclusio alterius, the
statutory expression of preferences for cost-effective projects and projects providing the
most benefits to Minnesotans indicates that the legislature meant to exclude other non-
enumerated factors in awarding RFP grants.
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The canon of statutory construction, expressio unius est exclusio alterius, means
that “the expression of one thing is the exclusion of another.” State v. Caldwell, 803
N.W.2d 373, 383 (Minn. 2011). “Expressio unius generally reflects an inference that any
omissions in a statute are intentional.” Id. Go Solar notes this court’s decision affirming
the exclusion of fair-market value evidence in an eminent-domain damages award, in
which we concluded that statutory language stating that the district court “must include”
four specific damages factors limited the court’s consideration to only those factors. City
of Moorhead v. Red River Valley Coop. Power Ass’n, 811 N.W.2d 151, 160 (Minn. App.
2012) (quotation omitted), aff’d, 830 N.W.2d. 32 (Minn. 2013). But the Minnesota
Supreme Court, although affirming our decision, concluded that, because the statute
listed “other appropriate factors” as one of the four enumerated factors, it did not support
an inference that the district court was to limit consideration of relevant evidence. City of
Moorhead, 830 N.W.2d at 39 (quotation omitted). Similarly, here, we conclude that the
statutory language, “when feasible and reasonable” and “where reasonable” modifies the
enumerated preferences and indicates unambiguously that those preferences are not
exclusive, so that the doctrine of expressio unius does not apply. See Minn. Stat.
§ 116C.779, subd. 1(h), (f); see also In re PERA Police & Fire Plan Line of Duty
Disability Benefits of Brittain, 724 N.W.2d 512, 516 (Minn. 2006) (“If the statute is not
ambiguous, the inquiry ends there.”) Therefore, Xcel and the MPUC did not err by
considering additional factors in the RDF decision-making process.
8
Failure to sufficiently address statutory preferences
Go Solar argues that, even if the statute permits the MPUC to consider additional
factors, its decision was arbitrary and capricious because it failed to “strongly consider”
benefits to Minnesotans and “give preference” to the most cost-effective project for a
particular energy source. See Minn. Stat. § 116C.779, subd. 1(h), (f); see also In re
Petition of S.G., 828 N.W.2d 118, 124 (Minn. 2013) (defining to “consider” as “to think
carefully and form an opinion about,” and “preference,” as “[the] select[ion of] . . .
someone or something over another or others”) (quotation omitted).
An agency decision is arbitrary and capricious “if the agency (a) relied on factors
not intended by the legislature; (b) entirely failed to consider an important aspect of the
problem; (c) offered an explanation that runs counter to the evidence; or (d) [made a]
decision [that] is so implausible that it could not be explained as a difference in view or
the result of the agency’s expertise.” Citizens Advocating Responsible Dev. v. Kandiyohi
Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006). But “[i]f there is room for
two opinions on a matter, the [agency] decision is not arbitrary and capricious, even
though the court may believe that an erroneous conclusion was reached.” In re Review of
2005 Annual Automatic Adjustment of Charges for All Elec. & Gas Utils., 768 N.W.2d
112, 120 (Minn. 2009).
Go Solar first argues that the MPUC’s decision is arbitrary and capricious because
it failed to refer to the cost-effectiveness preference. See Minn. Stat. § 116C.779,
subd. 1(h). But the MPUC’s failure to articulate that preference in its decision does not
mean that the agency did not consider it in the decision-making process. Cf. Save Mille
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Lacs Sportfishing, Inc., v. Minn. Dep’t of Natural Res. 859 N.W.2d 845, 851 (Minn. App.
2015) (holding that the absence of a citation to or analysis of a relevant constitutional or
common-law principle by an administrative agency in rulemaking does not provide
grounds for declaring the rule invalid in a pre-enforcement challenge). As Xcel points
out, the RFP required a cost-effectiveness assessment of all projects, which evaluated
consideration of cost effectiveness at 30% in scoring EP projects, such as Go Solar’s.
And Go Solar’s assertion that it was ranked first in cost-effectiveness is inaccurate
because it used a standard different from that outlined in the RFP and used by the
independent expert. In fact, Go Solar was not ranked first in cost-effectiveness and
would not have been entitled to a statutory preference based on that criterion.
Go Solar also argues that the RFP decision-making process did not independently
address and “strongly consider” whether the selected projects maximized benefits to
Minnesotans, Minn. Stat. § 116C.779, subd. 1(f), but instead placed too much weight on
“other ad hoc factors,” such as a developer’s financial and technical credibility and a
project’s location in a diverse community. Go Solar argues that allowing unquantifiable
criteria to trump this stated statutory criterion, which relates mainly to economic benefits,
effectively renders the 2012 statutory changes meaningless. But the current statute
provides that RDF funds may be used for “any of the following purposes,” including the
broad purpose of “promot[ing] the start-up, expansion, and attraction of renewable
electric energy projects and companies within the state.” Minn. Stat. § 116C.779,
subd. 1(d)(2). It also provides that the MPUC may disapprove any proposed
expenditures that it finds “to [not be] in compliance with [the RDF] statute or otherwise
10
not in the public interest.” Id., subd. 1(e). Therefore, read as a whole, the RDF statutory
framework affirmatively allows public-interest factors to weigh in the selection process.
Further, we defer to the agency’s interpretation of general statutory standards
enunciated by the legislature. Application of N. States Power Co., 604 N.W.2d at 390.
To that end, the RFP specifies broad criteria for assessing a project’s potential benefits to
Minnesota and ratepayers, including job creation and fiscal benefits, in addition to
addressing barriers to market development, such as issues of utility integration, location
constraints, socioeconomic constraints, and the novelty of the proposal. Thus, in
selecting projects for RDF funding, Xcel and the MPUC properly considered qualitative
factors such as diversity of project type, location, and technology; innovation; benefit to
increasing renewable market penetration; cost; practicality; and value to ratepayers in
Minnesota and Wisconsin. Consideration of these factors was appropriate and does not
render the MPUC’s decision arbitrary and capricious.
Conflicts of interest
Go Solar maintains that, because individual advisory-group members were
allowed to consider recommendations relating to their own projects, the MPUC’s
decision was arbitrary. Go Solar argues that, although several advisory-group members
were recused from assigned review of their sponsored projects, disclosure of conflicts is
meaningless if an interested person is not entirely recused from the decision-making
process.
We recognize Go Solar’s concern. But the structure of the RDF selection process
requires Xcel to consult with an advisory group that includes ratepayer representatives
11
and may also include representatives of “other interests.” Minn. Stat. § 116C.779,
subd. 1(f). To obtain the required expertise for project review, Xcel necessarily recruited
advisory-group members with experience in the emerging renewable-energy field.
Moreover, the advisory board operated by consensus, which minimized the role of
possible conflicts of interest. Further, because Xcel “has . . . sole authority to determine
which expenditures shall be submitted . . . for commission approval,” id., Xcel was free
to reject advisory-board input with which it disagreed. Go Solar points out that Xcel
requested a substantial award for its own proposal. But the statute expressly designates
Xcel eligible to apply for RDF funding. Id., subd. 1(d). We also note that the MPUC
ordered verification of the independent expert’s scoring and required Xcel to explain in
reply comments why its selections deviated from the independent expert’s project
rankings. We therefore conclude that advisory-group conflicts of interest did not render
the MPUC’s decision arbitrary and capricious.
II
Go Solar argues that the MPUC’s decision on funding allocations was
unsupported by substantial evidence because it is unreasonable based on the record. An
agency decision is supported by substantial evidence if it “is supported by such relevant
evidence as a reasonable mind might accept as adequate to support the conclusion.”
Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 468
(Minn. 2002). Substantial evidence has been defined as “(1) such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion; (2) more than a
scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the
12
evidence considered in its entirety.” Id. at 466. The objecting party has the burden to
show that the agency’s findings are not supported by evidence on the record. Herbst, 256
N.W.2d at 825. In assessing whether the substantial-evidence standard has been met, we
“determine whether the agency has adequately explained how it derived its conclusion
and whether that conclusion is reasonable on the basis of the record.” Application of
Minn. Power, 838 N.W.2d at 757 (quotation omitted).
Timeline and site selection
Go Solar argues that the record lacks a basis for Xcel’s articulated concerns
relating to Go Solar’s inability to negotiate a PPA within its four-month stated timeline
and to secure site locations. But Xcel’s reply comments note the proposal’s large scale
and Go Solar’s prior experience in negotiating PPAs for projects of that scale. The
advisory board also indicated that Go Solar wished to negotiate one PPA for the entire
20-site project. And although Go Solar points out that its proposal contained designated
site locations, it acknowledges that no specific leases or purchases had been negotiated at
those locations. The record thus provides a reasonable basis for rejecting Go Solar’s
proposal, based on concerns about its ability to execute the project as proposed.
Cost effectiveness
Go Solar challenges Xcel’s reply comment that Go Solar’s “energy price per kWh
was high relative to other EP proposals.” The independent expert ranked Go Solar’s
proposal in the mid-range for cost effectiveness, based on a metric of total resource cost,
which was calculated using information on initial capital costs, a PPA negotiated with
Xcel, and projected energy production. Go Solar argues that the TRC metric did not
13
properly measure its project’s cost-effectiveness because electricity from the solar
projects could be sold at Xcel’s avoided costs. Xcel acknowledges that the TRC metric
omits some projected factors; we defer, however, to the independent expert’s use of that
measurement to evaluate a project’s cost-effectiveness. See Herbst, 256 N.W.2d at 824
(stating that “deference should be shown by courts to the agencies’ expertise and their
special knowledge in the field of their technical training, education, and experience”).
And we reject Go Solar’s argument that the TRC for its project was inaccurate because
Go Solar could have entered a PPA at Xcel’s avoided cost, rather than at higher preferred
rates. The RFP notified Go Solar, like all grant applicants, that its project would be
evaluated using a uniform measurement, and the record does not support a reasonable
inference that its costs were measured unfairly relative to those of other projects. We
also reject Go Solar’s contention that Xcel was required to evaluate cost effectiveness in
proportion to the amount of grant funds Go Solar requested, rather than the total cost of
its project.
Additional criteria
Go Solar points out that the independent expert scored its proposal highest in jobs
created and local economic impact; it also contends that its proposal lacks many of the
negative features of projects selected for funding. But Go Solar’s ability to identify some
qualities that distinguish its project from approved projects, and some qualities that it
shares with approved projects, does not alone determine whether the MPUC’s decision is
arbitrary and capricious or unsupported by substantial evidence. See Review of 2005
14
Annual Automatic Adjustment of Charges, 768 N.W.2d at 120 (stating that an agency
decision is not arbitrary if room exists “for two opinions on a matter”).
Xcel articulated specific reasons for not recommending Go Solar’s proposal for
funding: its overall project cost, which would require over a third of the funds available
for EP projects; its high price relative to other EP proposals; uncertainty about securing
site locations; and the overall proposed timeline for negotiating PPAs. The MPUC
recognized that Xcel considered a “voluminous selection record” that fully explained its
evaluation process, which used technical scores as a baseline and then applied other
qualitative criteria. The MPUC found that “[w]here Xcel’s recommendations deviated
from the Independent Evaluator’s rankings, Xcel explained its choices in sufficient
detail,” and that the approach of selecting projects based on both technical scores and
subjective recommendations “was reasonable because it gave Xcel the necessary leeway
to select a diverse mix of unique and innovative projects.” Xcel and the MPUC fully
explained the decision not to recommend or fund Go Solar’s project, and based on the
record, substantial evidence supports that decision. See Application of Minn. Power, 838
N.W.2d at 757 (noting that an agency must “adequately explain[] how it derived its
conclusion,” which must be “reasonable on the basis of the record” (quotation omitted)).
III
Go Solar argues that it should have been afforded a contested-case hearing or
similar due process to address material disputed facts. The MPUC must hold a contested-
case hearing if a matter “involves contested material facts and there is a right to a hearing
under statute or rule, or if the commission finds that all significant issues have not been
15
resolved to its satisfaction.” Minn. R. 7829.1000 (2013). A relator who requests a
contested-case hearing has the burden to show the existence of material facts that would
assist the agency in making its decision. In re Petition of N. States Power Co., 676
N.W.2d 326, 335 (Minn. App. 2004). The MPUC denied Go Solar’s request for a
contested-case hearing, finding that no disputed material facts warranted a contested case
and that further factual development would not assist the agency in making its decision.
No statute entitled Go Solar to a contested-case hearing on its RDF proposal. And
absent statutory authority, an agency hearing is “a necessary prerequisite to determining
[a party’s] legal rights, duties, and privileges only if it is required by the due process
provisions of the State and Federal Constitutions.” Indep. Sch. Dist. No. 581 v. Mattheis,
275 Minn. 383, 386, 147 N.W.2d 374, 376 (1966). Go Solar cannot demonstrate a
property interest in obtaining RDF funding and therefore cannot assert a due-process
right to a contested-case hearing. See In re Implementation of Util. Energy Conservation
Improvement Programs, 368 N.W.2d 308, 313 (Minn. App. 1985) (holding that a utility
customer had no property right in existing utility rates and thus no right to a contested-
case proceeding).
Go Solar argues that it should have been afforded the opportunity to challenge
Xcel’s recommendation through discovery and cross-examination because the MPUC
failed to consider relevant and probative information that could have affected the
outcome of the proceeding. In particular, Go Solar challenges the rejection of the
independent expert’s top ranking of its proposal. But the record shows that Go Solar had
sufficient notice of the RDF process and ample opportunity to present evidence
16
supporting its project. 1 The MPUC reasonably determined that it could address the
proposals based on the extensive record, which included numerous comments and Go
Solar’s objections to the advisory board’s and Xcel’s recommendations. The MPUC did
not err by declining to order a contested-case hearing.
Affirmed.
1
On September 12, 2013, Go Solar filed a petition to intervene, initial comments and
request for a contested-case proceeding. Go Solar filed additional comments on
December 12, 2013, and December 31, 2013, respectively. The matter came before the
MPUC on January 23, 2014, and Go Solar made an oral presentation.
17