Vote Solar v. PSC ( 2020 )

10/06/2020
DA 19-0223
Case Number: DA 19-0223
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 213A
VOTE SOLAR, MONTANA ENVIRONMENTAL
INFORMATION CENTER, and CYPRESS CREEK
RENEWABLES, LLC,
Plaintiffs and Appellees,
and
WINDATA, LLC,
Plaintiff-Intervenor and Appellee,
v.
MONTANA DEPARTMENT OF PUBLIC
SERVICE REGULATION, MONTANA
PUBLIC SERVICE COMMISSION,
Defendant and Cross-Appellant,
NORTHWESTERN CORPORATION,
d/b/a NORTHWESTERN ENERGY,
Defendant and Appellant,
and
MONTANA CONSUMER COUNSEL,
Defendant-Intervenor.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV-2017-0776
Honorable James A. Manley, Presiding Judge
COUNSEL OF RECORD:
For Appellant NorthWestern Energy:
Ann Hill, Al Brogan (argued), NorthWestern Energy, Helena, Montana
For Cross-Appellant Montana Public Service Commission:
Zachary Taylor Rogala (argued), Justin Wade Kraske,
Montana Public Service Commission, Helena, Montana
For Appellees Vote Solar and Montana Environmental Information Center:
Jenny K. Harbine (argued), Earthjustice, Bozeman, Montana
For Appellee Cypress Creek Renewables, LLC:
Maria Phillips Barlow, Attorney at Law, Portland, Oregon
For Intervenor and Appellee WINData, LLC:
Monica J. Tranel (argued), Tranel Law Firm, P.C., Missoula, Montana
For Intervenor Montana Consumer Counsel:
Jason T. Brown (argued), Montana Consumer Counsel, Helena, Montana
Argued: February 26, 2020
Submitted: March 3, 2020
Decided: August 24, 2020
Amended: October 6, 2020
Filed:
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__________________________________________
Clerk
2
Chief Justice Mike McGrath delivered the Opinion of the Court:
¶1 This case stems from challenges by Vote Solar,1 the Montana Environmental
Information Center,2 and Cypress Creek Renewables, LLC,3 (collectively “VS-MEIC”) to
the Montana Public Service Commission (“PSC”) Order Nos. 7500c and 7500d, in which
the PSC reduced standard-offer contract rates and maximum contract lengths for small
solar qualifying facilities (“QFs”). On April 2, 2019, Montana’s Eighth Judicial District
Court issued an order vacating and modifying PSC Order Nos. 7500c and 7500d. The PSC
and NorthWestern Energy (“NorthWestern”)4 appeal. We affirm and remand to the PSC
with instructions.
¶2 We restate the issues on appeal as follows:
Issue One: Whether the District Court erred when it determined that the PSC
arbitrarily and unlawfully reduced solar QF standard-offer rates by excluding
carbon dioxide emissions costs and NorthWestern’s avoided costs of operating its
internal combustion engine resource units from the avoided-cost rate.
1
Vote Solar is a nonprofit, grassroots organization working to foster economic opportunity,
promote energy independence, and fight climate change by making solar energy a mainstream
energy resource across the United States. Vote Solar has more than 70,000 members throughout
the United States, with offices in Oakland, California.
2
Montana Environmental Information Center, located in Helena, Montana, is a nonprofit
environmental advocate founded in 1973 by Montanans focused on protecting and restoring
Montana’s natural environment, including through renewable energy development.
3
Cypress Creek is a renewable energy developer with 11 advanced-stage solar projects in
Montana, two of which are at issue in the present action.
4
NorthWestern is a Delaware corporation doing business as NorthWestern Energy, a public
energy utility, in Montana, South Dakota, and Nebraska.
3
Issue Two: Whether the District Court erred when it concluded that the PSC
arbitrarily and unreasonably calculated solar QFs’ capacity contribution in
determining avoided costs.
Issue Three: Whether the District Court erred when it determined that the PSC
arbitrarily and unreasonably reduced maximum-length contracts to 15 years for
solar QFs.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Before addressing the merits of the case, we contextualize the issues presented by
providing necessary background of applicable federal and state law, historical practices of
the PSC in setting contract lengths and standard-offer rates, and the relevant factual and
procedural history of the present action.
PURPA
¶4 In 1978, Congress enacted the Public Utility Regulatory Policies Act (“PURPA”)
to reduce American dependence on fossil fuels, encourage renewable energy development,
and promote increased energy efficiency. 16 U.S.C. § 824a-3; FERC v. Mississippi, 456
U.S. 742, 745-46, 102 S. Ct. 2126, 2130 (1982); Small Power Prod. and Congregation
Facilities; Regulations Implementing Sec. 210 of the Pub. Util. Reg. Pol. Act of 1978, Order
No. 69, 45 Fed. Reg. 12,214, 12,215 (Feb. 25, 1980). PURPA aims to eliminate significant
barriers to the development of alternative energy sources, including the reluctance of
traditional electric utilities to purchase power from and sell power to non-traditional
facilities and the financial burdens imposed upon alternative energy sources by state and
federal utilities. Californians for Renewable Energy v. Cal. PUC, 922 F.3d 929, 932
(9th Cir. 2019) (citing Indep. Energy Producers Ass’n, Inc. v. Cal. Pub. Utils. Comm’n, 36
F.3d 848, 850 (9th Cir. 1994)). PURPA charges the Federal Energy Regulatory
4
Commission (“FERC”) with enacting PURPA’s implementing regulations. Californians
for Renewable Energy, 922 F.3d at 931.
¶5 Section 210 of PURPA requires large electric utilities to purchase energy from small
power production QFs at standard-offer rates. 18 C.F.R. §§ 292.201, 292.203, 292.204.
Small power QFs have a nameplate capacity of 80 megawatts (“MW”) or less and produce
electric power from biomass, waste, or renewable resources such as wind, water, or solar
energy. 18 C.F.R. § 292.204(a), (b); 16 U.S.C. § 796(17)(A). Rates must be “just and
reasonable” to consumers, “in the public interest,” and nondiscriminatory to the QF to
“encourage” renewable energy development and allow small QFs to “become and remain
viable suppliers of electricity.” 18 C.F.R. § 292.304(a); 16 U.S.C. § 824a-3(a), (b);
Whitehall Wind, LLC v. Mont. Pub. Serv. Comm’n, 2010 MT 2, ¶ 7, 355 Mont. 15, 223
P.3d 907 (Whitehall Wind I).
¶6 When setting the purchase price, QFs must be compensated at a rate equal to the
utility’s full avoided cost. 18 C.F.R. § 292.304(b)(2); Am. Paper Inst. v. Am. Elec. Power
Serv. Corp., 461 U.S. 402, 406, 103 S. Ct. 1921, 1924 (1983). Avoided costs are “the
incremental costs to an electric utility of electric energy or capacity or both which, but for
the purchase from the qualifying facility or qualifying facilities, such utility would generate
itself or purchase from another source.” 18 C.F.R. § 292.101(b)(6) (emphasis added).
Capacity costs are those costs incurred from providing the capability to deliver energy,
consisting primarily of the capital costs of energy storing facilities. FERC Order No. 69 at
12,216. Energy costs are costs associated with energy production, including operating and
maintenance expenses. FERC Order No. 69 at 12,216. By limiting the purchase price to
5
a utility’s avoided cost, Congress sought to achieve a balance between the interests of
ratepayers and generators. Energy purchased at the utility’s avoided cost is reasonable for
consumers because it is equivalent in price as if the utility generated the power itself or
purchased it from another source. S. Cal. Edison Co., San Diego Gas & Elec. Co., 71
FERC ¶ 61,269, 62,280 (June 2, 1995).
¶7 The Dissent adopts the incorrect argument promoted by the Montana Consumer
Counsel (“Consumer Counsel”)5 that the most critical factor of avoided-cost analysis is
protecting the ratepayer. Were that the case, there would be no purpose to PURPA, which
is to preclude discrimination in the market place for sources of energy that provide an
alternative to fossil fuel development. Of course, that purpose must be undertaken along
with the endeavor to hold the ratepayer neutral or indifferent to the source of energy they
consume. Moreover, NorthWestern’s frequently-uttered trope that the requirements of
PURPA and thus approval of solar sources of energy will wildly increase the rates charged
to consumers finds little basis of support in this record.
¶8 FERC does not provide a specific method for establishing the avoided-cost rate but
requires that any state-adopted method be consistent with its implementing regulations.
See 18 C.F.R. § 292.304(c). FERC has thus provided a list of guidelines for states to
consider when developing avoided-cost rates, including (1) the usefulness of the QF’s
energy during system emergencies; (2) the individual and aggregate value of energy and
5
The Consumer Counsel represents Montana public utility and transportation consumers
before the Public Service Commission, state and federal courts, and administrative agencies in
matters concerning public utility regulation.
6
capacity from QFs to the utility’s system; (3) the QF’s smaller capacity increments and
shorter lead times—the time it takes to make, produce, or deliver energy; (4) the QF’s
ability to enable the utility to defer capacity additions and decrease reliance on fossil fuels;
and (5) the utility’s cost savings resulting from decreased line losses of energy during
transmission from the QF. 18 C.F.R. § 292.304(e)(2)(v)-(vii), (3), (4). FERC has clarified
that energy and capacity avoided costs should be considered together, directing utilities to
submit associated energy costs of each planned unit along with the estimated capacity cost
of planned capacity additions, such that the calculation of avoided costs “includes the lower
energy costs that might be associated with the new capacity.” FERC Order No. 69 at
12,218.
¶9 When determining avoided-cost rates, PURPA mandates states to consider “the
terms of any contract . . . including the duration of the obligation . . . .” 18 C.F.R.
§ 292.304(e)(2)(iii). Neither PURPA nor FERC regulations set a specific contract length
requirement for QFs. However, under PURPA, contract duration is closely intertwined
with contract rates. Public utilities must encourage QF development in establishing
avoided costs, in part by encouraging long-term contracts to “enhance the economic
feasibility” of QFs. 16 U.S.C. § 824a-3(a); FERC Order No. 69 at 12,226; § 69-3-604(2),
MCA. QFs are to be able to enter contractual commitments based on estimates of future
avoided costs to provide certainty regarding potential return on investments. FERC Order
No. 69 at 12,224.
7
Montana’s Mini-PURPA
¶10 State utility regulatory agencies implement PURPA through rulemaking. Whitehall
Wind I, ¶ 9; Californians for Renewable Energy, 922 F.3d at 931. The relevant state agency
here is the PSC. In 1981, Montana adopted PURPA, i.e., “mini-PURPA,” §§ 69-3-601
through 604, MCA. In Montana, QFs with a nameplate capacity of 3 MW or less are
eligible for standard-offer rates—NorthWestern’s “QF-1 Tariff Rate”—at issue in this
case.6 Admin. R. M. 38.5.1902(5). Like PURPA, Montana’s “mini-PURPA” requires that
avoided-cost rates and contract lengths be sufficient to “enhance the economic feasibility
of [QFs],” at rates that allow the QF to become and remain viable suppliers of electricity.
Section 69-3-604(2), MCA; Whitehall Wind I, ¶ 7.
The PSC’s Historical QF Rate Setting Practices
Avoided-Cost Rate
¶11 In Montana, the PSC requires NorthWestern to submit biennial updates to its
avoided cost information within 30 days of filing a resource procurement plan based on the
costs of any planned new resources identified in its most recent plan. Sections 69-8-419,
420, MCA; Admin. R. M. 38.5.1905(1)(b). At the time the present case commenced,
NorthWestern’s most recent resource procurement plan was its 2015 plan. NorthWestern
did not file a 2017 procurement plan but has since filed one for 2019.
6
QFs between 3MW and 80 MW of nameplate capacity may negotiate avoided-cost rates
directly with NorthWestern or opt for a standard avoided-cost rate set by the PSC. Admin. R. M.
38.5.1903(2); 18 C.F.R. § 292.304(c).
8
¶12 Three primary methodologies are used to calculate avoided-cost rates, one of which
is the proxy methodology.7 The proxy method, regarded by NorthWestern’s and
VS-MEIC’s experts as the simplest avoided cost methodology, estimates avoided costs
based on the projected capacity and energy costs of the utility’s next planned resource
additions. This method assumes that by purchasing energy directly from the QF the utility
can delay the construction of its next planned generating unit as identified in its most recent
integrated resource plan.8 The fixed costs of this hypothetical proxy unit, such as the
capital costs associated with constructing the unit, determines avoided-capacity costs, and
the variable costs, including the projected costs of operating the new capacity unit, become
the avoidable energy costs.9 In the years before future generating units become active, the
cost of short-term market purchases is used to calculate the avoided-cost rate.
¶13 In 2010, the PSC approved NorthWestern’s proposal to classify the nominal,
levelized avoided-cost rate into separate energy and capacity elements. In re NorthWestern
7
Two additional methods routinely used to calculate avoided-cost rates are the “peaker”
method and the “hybrid-proxy” method. The peaker method assumes a QF allows the utility to
reduce the marginal generation on its system and to avoid building a peaking unit, rather than
displacing or delaying the need for a new generation unit. The hybrid-proxy method, considered
to be the most equitable and accurate method, essentially distinguishes between whether the utility
is in a greater energy or capacity deficit.
8
The PSC has approved NorthWestern’s use of two standard QF-1 rate options: one that
reflects avoided costs based on NorthWestern’s identification of the least-cost, least-risk facility
in its most recent resource procurement plan, and a second option that offers indexed rates that
reflect hourly market prices and does not provide assurance of a long-term fixed rate. In re
NorthWestern Energy’s Application for Qualifying Facility Tariff Adjustment, Order No. 7338b,
¶¶ 18, 32, Dkt. D2014.1.5 (May 4, 2015). The second option is not at issue here.
9
See Kavulla Test., Dkt. No. AD 16-16-000, Tech. Conf. on Implementation Issues Under
PURPA (FERC, June 29, 2016), available at https://perma.cc/8KYC-U3VC.
9
Energy’s Application for Approval of Avoided Cost Tariff for New Qualifying Facilities,
Order No. 6973d, ¶ 134, Dkt. D2008.12.146 (May 6, 2010). In 2011, the PSC adopted the
proxy method for calculating avoided costs, also known as the “blended market
+ combined cycle” approach. In re NorthWestern Energy’s Application for Approval of
Avoided Cost Tariff for New Qualifying Facilities, Order No. 7108e, ¶ 68, Dkt. D2010.7.77
(Oct. 19, 2011). The PSC substituted a combined cycle combustion turbine unit,10
scheduled to begin operation in 2015, in place of a Colstrip Unit 4 resource, a coal-fired
generating unit, based on a preferred portfolio approach detailed in NorthWestern’s 2009
resource procurement plan. Order No. 7108e, ¶¶ 66, 67. In 2012 and 2014, the PSC again
applied the proxy method based on a combined cycle combustion turbine avoided-cost
resource. In re NorthWestern Energy’s Application for Approval of Avoided Cost Tariff
for New Qualifying Facilities, Order No. 7199d, ¶ 18, Dkt. D2012.1.3 (Dec. 7, 2012);
Order No. 7338b, ¶¶ 18-20.11
¶14 A separate consideration when determining avoided costs concerns a QF’s “capacity
contribution”—the electricity supplied by a QF to the utility’s system during periods of
high demand. 18 C.F.R. § 292.304(e)(3). The PSC has routinely determined a QF’s
capacity contribution during “on-peak” hours—the hours that the avoided-capacity
10
A combined cycle combustion turbine uses both gas and steam turbines to produce electricity
from the same fuel source. Waste heat from the gas turbine is routed to a nearby steam turbine,
which in turn, sends energy to the generator drive shaft to be converted into additional electricity.
11
The proxy method also relies on natural gas forecasts in setting the QF-1 rate. In 2012 and
2014, NorthWestern set QF-1 rates by relying on forward market natural gas forecasts at regional
trading hubs. See Order No. 7199d, ¶¶ 27-28; Order No. 7338b, ¶ 23.
10
resource would be expected to perform. See Order No. 6973d, ¶ 134; Order No. 7199d,
¶ 55; In re Crazy Mountain Wind, Order No. 7505b, ¶ 87, Dkt. D2016.7.56 (Jan. 5, 2017).
Carbon Adder
¶15 Since 2012, the PSC has included carbon pricing when determining avoided-cost
rates or approving NorthWestern’s requested rate of return and its rate base amount.
See In re NorthWestern Energy’s Application for Approval to Purchase and Operate the
Spion Kop Wind Project, Order No. 71591, ¶¶ 113-132, Dkt. D2011.5.41 (Feb. 16, 2012).
In 2014, the PSC approved NorthWestern’s proposal to collect through customer rates the
avoided-carbon costs associated with its purchase and operation of hydroelectric facilities,
estimating avoided-carbon costs to be $21.11 per ton beginning in 2021 and escalating at
a 5% annual interest rate for the remaining years of the contract. In re NorthWestern
Energy’s Application for Hydro Assets Purchase, Order No. 7323k, ¶¶ 83, 89, Dkt.
D2013.12.85 (Sept. 26, 2014). Then, in 2017, just seven months prior to issuing Order No.
7500c in this docket, the PSC included carbon emissions in its avoided-cost rate for small
wind QFs.12 Order No. 7505b, ¶ 61. Recognizing the speculative nature of forecasts of
carbon dioxide emission prices, the PSC nonetheless acknowledged that carbon dioxide
emission price is necessarily “a measure of avoided electricity supply costs.” Order No.
7505b, ¶¶ 54, 58. The PSC, however, delayed the onset date for compensating QFs for
12
Crazy Mountain Wind involved a contested case regarding contract terms for
NorthWestern’s purchase of wind energy from small QFs with a nameplate capacity greater than
3 MW but less than 80 MW. In July 2016, at almost the same time as when the present case
commenced, Crazy Mountain Wind, LLC, filed a petition with the PSC requesting an order setting
contract terms and conditions with NorthWestern.
11
carbon dioxide emissions from 2022 to 2025 to account for a new presidential
administration hostile to carbon dioxide emission regulation. Order No. 7505b, ¶ 57. The
PSC included a fixed $20.00 per ton for avoided carbon dioxide emissions cost adder,
escalating at a 4.15% annual interest rate for the remaining years in the contract. Order No.
7505b, ¶¶ 56-57.
¶16 In discussing carbon adder, the Dissent presents a false equivalent that the majority
endorses what would be the “first-ever carbon adder in a QF-1 contract.” Dissent, ¶ 84.
But of course, as noted, consideration of carbon adders in QF contracts and NorthWestern’s
applications for acquisition and approval of a rate base amount for its own projects has
been the case for other alternative sources, including hydro and wind power projects, since
2012.
Contract Length
¶17 NorthWestern has historically executed maximum-length contracts with QFs in
Montana for at least 25-year terms. In fact, prior to issuing its 2015 resource procurement
plan, NorthWestern signed two QF contracts for future wind and hydro resources and five
QF contracts for future solar resources, all for 25 years. NorthWestern Energy, 2015
Electricity Supply Resource Procurement Plan, Existing Resources, at 8-18 (Mar. 31,
2016). The longest contracts NorthWestern maintains of its own electric resources are
between 30 and 40 years.
Current Dispute
¶18 On May 3, 2016, NorthWestern filed its biennial avoided-cost application with the
PSC, proposing drastic reductions in standard-offer rates for NorthWestern’s purchases
12
from small solar and wind QFs. For solar QFs, NorthWestern’s application proposed
reducing the standard QF-1 rate from $66 per megawatt hour (“MWh”) to between
$34 and $44 per MWh. NorthWestern requested the PSC adopt the proposed tariff
immediately on an interim and final basis. NorthWestern argued it was necessary to revise
current QF-1 avoided-cost rates for solar QFs because the current rate exceeded the utility’s
avoided costs. NorthWestern’s request was based on an assertion that the current QF-1
rate had caused a significant number of large out-of-state QF developers to seek new QF-1
projects in Montana.13
¶19 NorthWestern’s application sought to abandon the proxy methodology, used to
calculate avoided costs, and instead urged the PSC to adopt the “peaker” method,
delineating its avoided-cost rate into energy and capacity values. NorthWestern further
proposed that avoided-capacity costs be based on the levelized cost of planned internal
combustion engines,14 scheduled to come online in 2019, consistent with its 2015 resource
13
NorthWestern continues to assert that the current QF-1 rate would effectively cause a “gold
rush” in renewable energy development in Montana, leaving customers on the hook for an
oversaturation of renewable energy. At the time NorthWestern filed its emergency application, it
had executed five power purchase agreements with small solar QFs, had an additional 43 active
interconnection requests for 3 MW facilities under various stages of study, and another
75 interconnection requests for 3 MW solar facilities in pre-application phases.
14
An internal combustion engine is analogous to a diesel engine, using combustion of natural
gas to drive pistons to generate electricity. Usually, internal combustion engines produce
intermittent combustion, allowing these engines to swiftly provide incremental electricity, even
when the electric grid has no power. Because these units can start and stop quickly and operate at
partial loads, they have become increasingly important in areas with high shares of renewable
electricity generation from wind and solar resources.
13
procurement plan.15 In addition, NorthWestern proposed that QF capacity contribution be
measured using an 85/10 exceedance methodology in which a QF’s capacity contribution
is measured based on its performance at 85% or higher of its nameplate energy output
during the top 10% of peak hours in NorthWestern’s territory. Applying this new
methodology, NorthWestern concluded that solar QFs only contributed approximately
9.6% of nameplate capacity, far less than the 38% capacity contribution value under
then-current QF-1 rates. NorthWestern did not propose changes to 25-year maximum-
length contracts.
¶20 On June 6, 2016, the Consumer Counsel and VS-MEIC filed petitions for general
intervention. On June 9, 2016, the PSC held a hearing concerning NorthWestern’s request
to suspend the QF-1 tariff rate. On July 25, 2016, the PSC issued Order No. 7500, granting
NorthWestern’s request for a temporary suspension of the scheduled QF-1 tariff for small
solar QFs. On October 26, 2016, over 4 months after the deadline for interested parties to
intervene, the PSC requested the submission of supplemental testimony addressing
additional issues not raised by the parties, including whether implementing 25-year
maximum-length contracts imposed undue forecast risk on ratepayers and whether
adopting maximum contract lengths shorter than 25 years was reasonable. On June 22,
2017, at a properly noticed work session, the PSC voted to reduce the maximum contract
length available to QFs from 25 years to 10 years, with a mandatory rate adjustment after
15
To determine avoided-energy costs, NorthWestern advocated for the use of a proprietary
PowerSimm computer model to calculate resource-specific avoided-cost rates. The PowerSimm
model assigns values to a QF’s energy based on a forecast of that QF’s hours of generation, load,
market prices, and fuel prices over a 25-year period.
14
5 years. The PSC also voted to adopt standard-offer rates for QFs even lower than those
proposed by NorthWestern, reducing pre-existing rates by more than half.
Order No. 7500c
¶21 On July 21, 2017, the PSC issued Final Order No. 7500c, adopting its work session
decision.
Avoided Costs
¶22 The PSC decided to retain the proxy methodology to estimate avoided costs.
However, the PSC used separate planned generating resources for determining avoided
energy and avoided-capacity costs. The PSC declined to use the internal combustion
engine unit as the avoided-energy cost proxy resource, even though this unit was the next
identified resource in NorthWestern’s 2015 resource procurement plan and NorthWestern
was operating at a 28% capacity deficit during peak energy hours. The PSC reasoned that
the internal combustion engine unit was a baseload capacity unit, and therefore, “would
not be reasonable to estimate avoidable incremental energy costs for all time periods based
on a resource that is projected to dispatch economically less than a quarter of the time.”16
16
Curiously, NorthWestern did not advocate in its Application for a combined cycle
combustion turbine resource as the appropriate avoided-cost resource. Instead, as evidenced by
NorthWestern’s Prefiled Direct Expert Testimony from expert John Bushnell, proposed updated
avoided costs of capacity rates were “calculated using the levelized capital cost of an Internal
Combustion Engine [] generation unit to be built in 2019.” Only in NorthWestern’s rebuttal
testimony did it advance the argument that the internal combustion engine generation unit was not
the appropriate resource to measure avoided capacity. Bushnell explained that he originally
included an internal combustion energy unit because “it is the capacity resource selected in the
2015 Electricity Supply Resource Procurement Plan[].” The PSC rejected NorthWestern’s filing
in Order No. 7338b, also a QF-1 proceeding, because NorthWestern included a resource not
included in its most recent resource procurement plan. Accordingly, Bushnell stated that he used
an internal combustion engine in this case “to avoid the possibility that the [PSC] would reject this
filing on similar grounds.”
15
Instead, the PSC estimated avoided-energy costs by relying on the blended market +
combined cycle proxy method applied in previous orders, again using the combined cycle
combustion turbine as its avoided-energy resource. Although the combined cycle
combustion turbine was not scheduled to become operational until 2025, the PSC did not
discuss the timing issue with using the combined cycle resource as the avoided-energy cost
resource when the internal combustion engine units would be available 6 years earlier.
¶23 The PSC adopted NorthWestern’s proposal to base avoided-capacity costs on a
hypothetical aeroderivative combustion turbine,17 scheduled to come online in 2018. The
PSC concluded that the aeroderivative unit, while not included in the preferred portfolio of
NorthWestern’s 2015 resource procurement plan, provided a reasonable proxy unit to
compensate QFs for capacity contributions because of its similar timeframe to that of when
the internal combustion engine units would become operational.
¶24 The PSC declined to adopt either NorthWestern’s or VS-MEIC’s proposals for
calculating QFs’ capacity contributions, opting instead for the novel Southwestern Power
Pool18 (“SPP”) methodology. The SPP methodology requires that the PSC:
(a) Assemble all available hourly net power output (MWH) data measured at
the system interconnection point.
17
Aeroderivative combustion turbines are designed from jet engines so that fuel and air are
mixed and then ignited to achieve the desired output. Aeroderivative engines are typically
designed to make use of a continuous, rather than an intermittent, combustion process. However,
aeroderivative turbines recently have increased in popularity for use in electrical power
applications for primarily peak and intermittent purposes rather than base power generation.
18
The SPP is a collective of regional power companies throughout the central United States.
NorthWestern is not a member. However, NorthWestern has used the SPP methodology in its
South Dakota service area.
16
(b) Select the hourly net power output value occurring during the top 3% of
load hours for the SPP Load Serving Entity for each month of each year
for the evaluation period.
(c) Select the hourly net power output value that can be expected from the
facility 60% of the time or greater. For example, for a 5 year period with
the 110 hourly net power output values ranked from highest to lowest the
capacity of the facility will be the MW value in the 65th data point.
(d) A seasonal or annual net capacity may be determined by selecting the
appropriate monthly MW values corresponding to the Load Serving
Entity’s peak load month of the season of interest (e.g., 22 hours for a
typical 30 day month and 110 hours for a 5 year period).
In Order No. 7500c, the PSC explained that the SPP methodology involves these steps:
(1) Collecting data for hourly net output (from actual production or, if
historical data is not available, applicable proxy sources);
(2) Selecting the net output data during the top 3% of load hours for the
load-serving entity for each month of each year of an evaluation period;
(3) Selecting the net hourly output value that can be expected from the
facility 60% of the time or greater;
(4) Calculating the annual capacity value (which is the specific measure
sought for the QF-1 tariff) by selecting the peak-load month of each year,
then selecting and aggregating the top 3% of load hours for each of the
peak-load months in the evaluation period;
(5) Sorting of the resulting top 3% hourly values from highest to lowest; and
(6) Determining the facility’s net capacity value—the value which is the
facility output that corresponds with the 60th percentile of the sorted list.
The PSC accepted NorthWestern’s interpretation and application of the SPP method.
Applying this interpretation to the 10 years of solar and load data available, the PSC and
17
NorthWestern calculated that solar QFs had a solar capacity contribution value of 6.1%.19
The PSC explained that it “interpret[ed] SPP’s method to rely upon the selection of top
load hours from only the peak-load month of each year, i.e., 22 hours per year, in a
multi-year measurement period . . . .” The PSC concluded that VS-MEIC misapplied the
SPP because it used a 60% exceedance value for 10% of all hours in the record—876 hours
per year—resulting in a capacity contribution value of 39%.
Carbon Adder
¶25 The PSC declined to use a carbon emission adjustment for calculating avoided-cost
estimates when establishing QF-1 standard rates. The PSC acknowledged that it was
departing from its own recent precedent in doing so. The PSC explained that excluding
carbon costs was reasonable given that “the political forces that once indicated
environmental regulatory action at the federal level was likely in the reasonably foreseeable
future has diminished and, accordingly, the likelihood of carbon emissions regulation has
decreased.” The PSC further stated that “The estimation of avoided costs necessarily
entails an assessment of the probabilities, magnitudes, and associated risk of future events
that may impact a utility’s avoidable incremental costs of service, and the [PSC] exercises
19
NorthWestern provided a detailed description of how it interpreted and applied the SPP
methodology to the 10 years on record, 2006-2015. NorthWestern first isolated its “on peak”
period for these 10 years, defined in NorthWestern’s QF-1 Tariff as the “heavy load hours”—
Monday through Saturday between 7:00 a.m. to 10:00 p.m. for the months of January, February,
July, August, and December—resulting in approximately 2,038 hours per year. Next, it
determined the peak load month for each year. Then, the top 3% of load hours for each of those
10 peak load months were isolated and sorted from largest to smallest and the generation amount
exceeded at least 60% of the time was identified. In sum, a nameplate capacity value of 6.1% was
determined based on only 22 hours per year. A solar capacity contribution value of zero was
assigned to the remaining four of the five on-peak months.
18
considerable discretion in performance of this task.” By declining to include carbon
altogether, the PSC rationalized its departure from its past practice as a “justifiable
adjustment to a changed regulatory environment and [] a reasonable recalibration of [its]
expectations of the risk associated with unknown, and unknowable, potential regulatory
actions at the federal level.”
Contract Length
¶26 The PSC found that 25-year maximum contract lengths exposed customers to undue
forecast risk, increasing the possibility that customers will pay above-market prices for the
output of QFs. The PSC reduced maximum standard-rate contracts for solar QFs from
25 years to 10 years, with a mandatory rate adjustment after 5 years. The PSC concluded
that 10 years would provide sufficient encouragement for QF development while
adequately mitigating forecast risk for customers. The PSC justified its decision largely
on decisions from Idaho and North Carolina, in which each state greatly reduced QF
contract lengths to between 2 and 15 years. The PSC also applied a symmetrical treatment
to contract lengths for NorthWestern’s own non-QF resources given that NorthWestern’s
own resources “contribut[e] to the very risk that they purportedly seek to offset here.”
Motions for Reconsideration and Staff Memo
¶27 On July 31, 2017, VS-MEIC filed motions for reconsideration. On October 2, 2017,
the PSC’s staff released a memorandum, recommending the PSC reconsider its decision
regarding contract lengths. Staff suggested that the PSC instead establish maximum
19
contract lengths of “at least 15 years, but preferably 20 years[.]”20 Staff did not endorse
forecast risk as a justifiable consideration for shortening contract lengths. Staff further
explained its reluctance to rely on QF contract length policies in other states to justify
decisions in this docket “as the facts and the records developed in other states are different
than those now before the [PSC].” Staff found that Montana’s statute requiring long-term
contracts to enhance the economic feasibility of QFs, § 69-3-604, MCA, is “central to the
determination of contract length in Montana, and without knowledge of contextual policy
for QFs in other states, staff recommends against relying on state comparisons for a
determination of appropriate QF contract length.”
¶28 Staff also advised the PSC to reconsider its decision to exclude a carbon dioxide
emission adjustment from its avoided-cost estimate because the PSC did not explain how
the facts of this case differed from those in Crazy Mountain Wind. Absent such an
explanation, staff believed the PSC’s decision to exclude a carbon dioxide emission
adjustment was arbitrary. Staff further recommended that the PSC maintain the adjusted
carbon cost adopted in Crazy Mountain Wind, delaying the onset of the carbon adder to
2025. However, staff concluded that the PSC’s calculations of QF capacity contribution
and avoided-energy-cost estimates were reasonable and supported by the record evidence.
20
On June 16, 2017, prior to Order No. 7500c, the PSC staff also released a memorandum.
Like its October memorandum, staff recommended the PSC incorporate a carbon emissions
adjustment in setting the avoided-cost rate consistent with the PSC’s decision in Crazy Mountain
Wind, which also considered the uncertainty of carbon regulation in light of the 2016 presidential
election. Staff further recommended reducing QF-1 maximum-length contracts to 15-20 years as
a compromise between encouraging QF development and minimizing forecast risk in determining
avoided-energy costs.
20
Order No. 7500d
¶29 On November 24, 2017, the PSC issued Order No. 7500d, order on reconsideration.
The PSC retained its decision to exclude carbon dioxide emissions from the QF-1
avoided-cost rate because of continued uncertainty surrounding future emissions pricing
and heightened federal efforts to deregulate carbon emissions following Crazy Mountain
Wind. The PSC affirmed its calculation of avoided costs, finding that the avoided-capacity
cost calculated for solar QFs reflects the acquisition of an aeroderivative turbine in 2018
such that NorthWestern does not defer capacity payments to 2025. The PSC also declined
to vacate its application of the SPP methodology to calculate avoided costs for solar QFs,
reasoning that NorthWestern is a winter and not a summer peaking utility, and VS-MEIC
failed to aggregate the annual data before measuring the exceedance level.
¶30 The PSC modestly increased the maximum contract length from 10 to 15 years and
eliminated the 5-year rate adjustment, finding a 15-year maximum contract length was
reasonable, in the public interest, and appropriately balanced QFs’ needs for certainty with
the risk to consumers. The PSC acknowledged that NorthWestern and the Consumer
Counsel did not provide evidence as to how shortened contract lengths would provide
sufficient certainty regarding potential investment returns or enhance the economic
feasibility of QFs. The PSC also found that VS-MEIC generally supported a QF contract
length of at least 15 years. The PSC declined to apply the definition of “long-term” in
Admin. R. M. 38.5.8202(7) to QF contracts, finding the definition fits more appropriately
in the context of electricity supply resource planning and procurement and is therefore of
limited applicability to QF contracts. The PSC also concluded that North Carolina’s
21
decision to limit QF contracts to 15 years provided support for the PSC to adopt a similar
decision because North Carolina operates under a similar statutory regime as Montana, is
responsive to the same risk to consumers the PSC is attempting to mitigate, and has a
similar biennial ratemaking docket.
District Court
¶31 On December 23, 2017, VS-MEIC filed a Petition for Judicial Review in Montana’s
Eighth Judicial District Court. On February 21, 2018, the District Court granted WINData,
LLC’s21 and the Consumer Counsel’s motions to intervene. This case was ultimately
consolidated for judicial efficiency with three other cases. On September 7, 2018, the court
heard oral argument.
¶32 On April 2, 2019, the District Court issued an order vacating and modifying PSC
Order Nos. 7500c and 7500d. The court found that the PSC’s decision to reduce
QF maximum-length contracts to 15 years was arbitrary and unreasonable because the PSC
lacked substantial evidence necessary to determine that 15-year contracts were sufficient
to enhance small QFs’ economic feasibility. In addition, the court held that the PSC failed
to consider the combined negative impact on QF development resulting from reduced
contract lengths alongside drastically reduced standard-offer rates, and the PSC failed to
provide a reasoned analysis in departing from its past precedent.
21
WINData, LLC is a Montana engineering company providing project and site development
services to the wind industry. WINData originally filed a motion to intervene before the PSC, but
its request was denied as untimely.
22
¶33 The court also found that the PSC arbitrarily and unreasonably failed to compensate
QFs for avoided-energy costs because it did not include a carbon adder in the avoided-cost
rate, did not provide a reasoned analysis in departing from its past precedent, failed to
follow its own technical staff, and failed to consider NorthWestern’s cost of operating new
generating resources that the utility planned to acquire in 2019. Finally, the court held that
the PSC arbitrarily failed to compensate solar QFs for their capacity contribution because
it discounted Northwestern’s substantial summertime capacity needs and misapprehended
the effect of evidence of regional peak demand data reflecting a summertime peak demand.
¶34 NorthWestern and the PSC, joined by the Consumer Counsel, appealed.
NorthWestern also filed a motion in District Court to stay judgment pending this appeal.
The District Court denied the motion to stay. NorthWestern then filed a motion for relief
in this Court. On August 6, 2019, this Court issued an order staying the matter pending
resolution of the appeal. Vote Solar v. Mont. Dep’t of Pub. Serv. Regulation,
No. DA 19-0223, Or. (Mont., Aug. 6, 2019). On February 26, 2020, this Court heard oral
argument as to whether the District Court erred in vacating and modifying Order Nos.
7500c and 7500d.
STANDARDS OF REVIEW
¶35 The Montana Administrative Procedures Act (“MAPA”) standards of review
govern an administrative appeal of an agency decision in a contested case. Section
2-4-704, MCA; Whitehall Wind, LLC v. Mont. Pub. Serv. Comm’n, 2015 MT 119, ¶ 7, 379
Mont. 119, 347 P.3d 1273 (Whitehall Wind II). This Court reviews an administrative
decision in a contested case to determine whether the agency’s findings of fact are clearly
23
erroneous and whether its interpretation of the law is correct. Whitehall Wind I, ¶ 15;
McGree Corp. v. Mont. Pub. Serv. Comm’n, 2019 MT 75, ¶ 6, 395 Mont. 229, 438 P.3d
326 (citing Nw. Corp. v. Mont. Dep’t of Pub. Serv. Regulation, 2016 MT 239, ¶ 25, 385
Mont. 33, 380 P.3d 787). The agency decision must be judged on the grounds and reasons
set forth in the challenged order(s); no other grounds should be considered.
Montana-Dakota Utilities Co. v. Mont. Dep’t of Pub. Serv. Regulation, 223 Mont. 191,
196, 725 P.2d 548, 551 (1986) (citation omitted).
¶36 The court may not substitute its judgment for that of the agency in weighing the
factual evidence. Section 2-4-704(2), MCA. The court may reverse or modify an agency
decision if the substantial rights of the appellant have been prejudiced because the agency’s
decision exceeds its statutory authority, is affected by legal error, clearly erroneous in light
of the whole record, arbitrary or capricious, or characterized by an abuse of discretion.
Section 2-4-704(2)(a)(ii), (iv), (v), (vi), MCA. In reviewing findings of fact, the question
is not whether there is evidence to support different findings, but whether competent
substantial evidence supports the findings made. Nw. Corp., ¶ 27. While agencies possess
specific, technical, and scientific knowledge exceeding that of this Court, an agency must
still articulate a satisfactory explanation for its actions and provide a rational connection
between the facts found and the choice made. Mont. Envtl. Info. Ctr. v. Mont. Dep’t of
Envtl. Quality, 2019 MT 213, ¶ 26, 397 Mont. 161, 451 P.3d 493; Clark Fork Coal. v.
Mont. Dep’t of Envtl. Quality, 2008 MT 407, ¶ 47, 347 Mont. 197, 197 P.3d 482 (Clark
Fork Coal. I).
24
¶37 In addition, pursuant to § 69-3-402, MCA, a party in interest dissatisfied with an
order of the PSC setting or fixing rates may proceed in the district court to vacate the order
on the grounds that it is unlawful or unreasonable. An agency action is arbitrary if it fails
to consider relevant factors, including the standards and purposes of the statutes the agency
administers. Clark Fork Coal. I, ¶ 21. This Court will not defer to an agency’s incorrect
or unlawful decisions but will only defer to an agency action within permissible statutory
bounds. North Fork Pres. Ass’n v. Dep’t of State Lands, 238 Mont. 451, 459, 778 P.2d
862, 867 (1989). We afford an agency’s interpretation of its own rule great weight and
will defer to that interpretation unless it is plainly inconsistent with the spirit of the rule,
considering a range of reasonableness permitted by the regulation’s wording. Mont. Envtl.
Info. Ctr., ¶ 23.22
DISCUSSION
¶38 Issue One: Whether the District Court erred when it determined that the PSC
arbitrarily and unlawfully reduced solar QF standard-offer rates by excluding
carbon dioxide emissions costs and NorthWestern’s avoided costs of operating its
internal combustion engine resource units from the avoided-cost rate.
¶39 The District Court held that the PSC’s decision to reduce the standard-offer QF-1
rates was arbitrary and unreasonable because the PSC failed to consider future carbon costs
and failed to provide a reasoned decision in departing from its recent precedent. In
addition, the court found that the PSC unreasonably failed to consider NorthWestern’s cost
22
The Dissent posits that there is sufficient record-based evidence to support deferral to the
agency decision. However, as demonstrated, the PSC decisions here were not predicated on the
underlying record; rather, as the District Court noted, they were clearly arbitrary and capricious
and failed to articulate reasoned decisions between the facts, the law, and the choices made.
25
of operating its new internal combustion engine resources, scheduled to come online in
2019, when setting the avoided-cost rate. We address these considerations separately.
Carbon Adder
¶40 The PSC argues that the District Court erred because it has never included carbon
costs in determining the QF-1 tariff rate as its past decisions all assumed a delayed onset
date of carbon dioxide pricing. The PSC also argues that carbon forecasting is inherently
speculative in nature, particularly following the election of a presidential administration
hostile to carbon regulation, such that it was not required to include a carbon adder in the
avoided-cost rate.23 NorthWestern asserts that including future carbon costs within the
avoided-cost rate is a “discretionary factor” that the PSC need not consider when setting
rates.
¶41 PURPA requires that utilities purchase electricity generated by QFs at rates that are
“just and reasonable” to the consumer, “in the public interest,” and nondiscriminatory to
the QF. 16 U.S.C. § 824a-3(b). Thus, in setting contract rates, the agency must fairly
23
Additionally, the Consumer Counsel argues that small QFs may still monetize avoided future
carbon dioxide costs without including such costs in the avoided-cost rate because QFs can retain
and sell renewable energy credits (“RECs”). RECs are certificates representing environmental
attributes of energy generated by renewable energy sources, created as a means for states to
measure progress toward compliance with Renewable Energy Portfolio Standards. Buying RECs
is not equivalent to buying electricity, however, because RECs do not provide a guarantee that a
particular amount of carbon emission is avoided; thus, buying and selling RECs has no effect on
the avoided-cost rate. See Californians for Renewable Energy, 922 F.3d at 940 (noting that RECs
are not covered under PURPA and therefore do not factor into the avoided-cost determination). In
fact, the PSC has previously rejected such arguments in establishing the avoided-cost rate,
acknowledging that avoided-carbon costs are a consideration separate and independent of the value
of RECs. Order No. 7505b, ¶¶ 58-59. And the PSC did not base its decision in this docket to
exclude carbon costs from the avoided-cost rate on the ability of QFs to retain and sell RECs.
Accordingly, we decline to review the PSC decision based on a reason not set forth in Order Nos.
7500c and 7500d. See Montana-Dakota Utilities Co., 223 Mont. at 196, 725 P.2d at 551.
26
balance the interests of its ratepayers with that of the QF such that it complies with PURPA
and “encourages” renewable energy development while making the ratepayer indifferent
as to the energy source. S. Cal. Edison Co., 71 FERC at 62,080. In doing so, a utility
purchasing electricity must compensate the QF at a rate equal to the utility’s full avoided
cost—that is, “the incremental costs to an electric utility of electric energy or capacity or
both which, but for the purchase from the qualifying facility or qualifying facilities, such
utility would generate itself or purchase from another source.” 18 C.F.R. § 292.304(b)(2);
16 U.S.C. § 824a-3(d); Am. Paper Inst., 461 U.S. at 406, 103 S. Ct. at 1924; 18 C.F.R.
§ 292.101(b)(6); Admin. R. M. 38.5.1901(2)(a). FERC has held that carbon costs are a
necessary aspect of a utility’s avoided costs if those costs are incurred by the utility.
Cal. Pub. Utilities Comm’n, 133 FERC ¶ 61,059, 61,268 (Oct. 21, 2010).
¶42 While the PSC has certainly delayed the onset date of a carbon adder in recent QF
dockets, the PSC acknowledged in Order No. 7500d that, since its 2012 order adopting
present QF-1 rates, it has regularly included estimated avoided carbon emission costs as
part of the avoided-cost projections for QF and non-QF projects. In issuing Order No.
7323k, addressing the Commission’s approved “rate of return” and “rate base amount,”
which is substantially similar to a QF’s avoided-cost rate for NorthWestern’s acquisition
of the hydro facilities, the PSC described the essential nature of including carbon emissions
pricing in the avoided-cost rate, stating that NorthWestern must “consider risk costs related
to potential carbon emissions regulation when planning for and acquiring new resources.”
Order No. 7323k, ¶ 88 (citing Admin. R. M. 38.5.8213). The PSC further provided that
“One of the key inputs in NorthWestern’s comparative cost modeling and [discounted cash
27
flow] analysis was the future cost of carbon emissions. Although highly uncertain, all
parties agreed that future carbon costs should not be considered zero.” Order No. 7323k,
¶ 81 (emphasis added).
¶43 Similarly, in Crazy Mountain Wind, the PSC acknowledged that carbon-free
qualifying facilities avoid future carbon costs such that including a reasonable estimate of
those avoided costs is an essential component of nondiscriminatory implementation of
PURPA. Order No. 7505b, ¶ 59. In Crazy Mountain Wind, the Consumer Counsel argued
that carbon dioxide should be excluded from the avoided-cost rate due to the “speculative
nature” of the calculation, particularly so given the results of the 2016 presidential election.
Order No. 7505b, ¶ 50. While recognizing the fundamentally abstract nature of carbon
price forecasting, the PSC declined to adopt the Consumer Counsel’s request. The PSC
suggested that if the Consumer Counsel continued to argue to limit carbon dioxide emission
price forecast risk in future proceedings, it “should propose language that could be included
in a contract that would allow an emission price to be clearly ascertained when it appears
in the market and to correspond with a clear and forecastable adjustment.” Order No.
7505b, ¶ 60. Otherwise, the PSC explained that the Consumer Counsel’s proposals would
violate PURPA’s requirement that rates be forecast at the time when the obligation is
incurred. Order No. 7505b, ¶ 60 (citing 18 C.F.R. § 292.304(d)(2)(ii)).
¶44 Here, the PSC declined to include a carbon adder when setting the avoided-cost rate,
explaining “The reason for changing [its] practice relates to an assessment that the political
forces that once indicated environmental regulatory action at the federal level was likely in
the reasonably foreseeable future has diminished and, accordingly, the likelihood of carbon
28
emissions regulation has decreased.” We conclude that the record evidence does not
support the PSC decision, such that its exclusion of consideration of carbon dioxide
emissions cost from the avoided-cost rate violates PURPA.
¶45 Setting QF rates despite market volatility and uncertainty inherently underlies the
entire purpose of PURPA: to encourage and incentivize renewable energy development
over a long-term contract in order to escape fossil fuel dependency. Am. Paper Inst., 461
U.S. at 405, 103 S. Ct. at 1924; FERC, 456 U.S. at 750, 102 S. Ct. at 2132. While carbon
price forecasting may be innately difficult, to assign carbon pricing a value of “zero”
because of its speculative nature simply does not compensate QFs for the full avoided-cost
rate. See Order No. 7505b, ¶¶ 59, 60. Nor does conjecture about an increasingly hostile
political climate establish a “clear and forecastable adjustment,” necessary to comply with
its own precedent. Order No. 7505b, ¶ 60.24 And, given that NorthWestern’s hydro
facilities, as well as the other wind QFs enjoy a carbon adder in their avoided-cost rates or
the equivalent rate base amount, to exclude carbon costs from the avoided-cost rate for
QFs, particularly given greatly reduced maximum-length contracts,25 is discriminatory to
QFs and in violation of PURPA. 16 U.S.C. § 824a-3(b). The PSC’s decision to exclude a
carbon adder from the avoided-cost rate was unlawful.
24
As noted in ¶ 15 of the Opinion, prior contracts that have been approved postponed the
imposition of carbon adders to future years when the obligation may actually be incurred.
25
In fact, a hot mic recording at a properly noticed work session captured PSC commissioner
Bob Lake, in discussion with a PSC staff member, stating that reductions of contract lengths,
together with modified avoided-cost rates, should effectively kill QF development entirely.
29
¶46 Likewise, the PSC’s justification for its actions was arbitrary. The PSC noted that
it was reasonable to depart from past precedent given the “unknowable, potential regulatory
actions at the federal level[,]” citing its “authority and technical fact finding expertise to
appropriately balance the future risk of carbon costs to be borne by customers.” However,
the PSC found such reasoning proffered by the Consumer Counsel in Crazy Mountain
Wind, decided only months earlier, to be inadequate. In declining to reconsider including
a carbon adder in the avoided-cost rate, the PSC made no effort to distinguish the facts in
this case from those in Crazy Mountain Wind or explain why its decision was acceptable
under the facts in this docket.26 Indeed, beyond its brief references to the speculative nature
of carbon pricing and a presidential administration hostile to carbon regulation, the PSC
did not attempt to explain why carbon emissions should not be considered in the
avoided-cost rate. Mere speculation based on political forecasting hardly constitutes
technical or scientific knowledge worthy of deference.27 See Mont. Envtl. Info. Ctr., ¶ 26.
Nor does an agency’s reference to its own technical expertise constitute a reasoned
26
The PSC’s staff also noted in its October memorandum that (1) the record evidence in this
case did not reflect additional changes in the political landscape since the PSC’s decision in Crazy
Mountain Wind, and (2) the PSC failed to distinguish the facts in this docket from Crazy Mountain
Wind, relegating its decision to exclude a carbon adder arbitrary. Although an agency has no duty
to adhere to the recommendations of its technical staff, contrary to the finding of the District Court,
staff’s repeated warnings further illustrate that the record evidence did not support excluding a
carbon adder from the avoided-cost rate and the PSC did not provide a reasoned decision for its
actions.
27
Furthermore, the PSC’s speculation is without merit. While the PSC based its decision to
exclude carbon costs from the avoided-cost rate on the Environmental Protection Agency’s
(“EPA”) proposed repeal of the Clean Power Plan, the EPA notes in its proposed repeal that the
Clean Air Act still requires it to regulate power plant carbon emissions. Proposed Rule, 82 Fed.
Reg. 48,035, 48036-37 (Oct. 16, 2017).
30
decision. See Clark Fork Coal. I, ¶¶ 21, 47. The District Court did not err in concluding
that the PSC’s decision to exclude carbon emissions from the avoided-cost rate was
arbitrary and unlawful.
Avoided-Energy Costs
¶47 In applying the proxy methodology to calculate the avoided-cost rate, the PSC
utilized different avoided-cost resources to separately calculate avoided-capacity and
avoided-energy costs, calculating avoided-capacity costs based on the 2018 aeroderivative
unit and avoided-energy costs based on the 2025 combined cycle combustion turbine unit.
The District Court held that the PSC unreasonably failed to consider the cost of operating
new generating resources that the utility planned to acquire in 2019 even though the record
evidence demonstrated that solar QFs would allow NorthWestern to avoid such costs in
high-demand hours.
¶48 The PSC first argues that VS-MEIC failed to exhaust its administrative remedies
because of its evolving theory of the case before the PSC such that judicial review of this
issue is not available. Section 2-4-702, MCA, requires exhaustion of administrative
remedies and states that judicial review is only available to a person aggrieved by a final
agency decision. See also Wilson v. Dep’t of Pub. Serv. Regulation, 260 Mont. 167, 172,
858 P.2d 368, 371 (1993). The exhaustion doctrine serves to provide administrative
agencies an opportunity to utilize their expertise, correct any mistakes, and avoid
unnecessary judicial intervention. Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d
1073, 1080 (9th Cir. 2010). A party forfeits argument as to an issue not raised during the
administrative process; however, so long as a claimant provides enough clarity such that
31
the decision maker understands the issues raised for the agency to use its expertise to
resolve the claim, the claimant will have met this burden. Lands Council v. McNair, 629
F.3d 1070, 1076 (9th Cir. 2010).
¶49 In Order No. 7500c, the PSC estimated avoided costs by relying on the blended
market + combined cycle combustion proxy methodology. The PSC, however, did not
discuss the timing issue with using the combined combustion turbine unit as a proxy
resource to calculate avoided-energy costs. VS-MEIC challenged this decision in its
motion for reconsideration, arguing that “Even if it was reasonable for the [PSC] to
establish avoided costs based on a [combined cycle combustion turbine], rather than an
[internal combustion engine], it was unreasonable and unlawful for the [PSC] to assume
that NorthWestern can defer capacity additions to 2025 when its [resource procurement
plan] calls for new capacity resources in 2019.” VS-MEIC further argued that the PSC’s
order “failed to address the timing of NorthWestern’s capacity needs.”
¶50 In Order No. 7500d, the PSC attempted to retroactively address the timing issue of
the delayed energy resource addition, explaining that “the avoided capacity cost calculated
for solar QFs reflects the acquisition of an aeroderivative combustion turbine in 2018 . . .
reasonably reflect[ing] the timing of NorthWestern’s next planned resource addition and
does not assume NorthWestern defers capacity additions to 2025.” At the District Court
and now before this Court, VS-MEIC advances fundamentally the same argument that it
did before the PSC—using the combined combustion turbine as the proxy resource still
fails to compensate QFs for the full avoided costs because of the timing issue created by
32
using this resource in place of the internal combustion engine. VS-MEIC exhausted its
administrative remedies as to this issue. It is ripe for review.
¶51 The PSC and NorthWestern also argue that energy and capacity costs are different
considerations. The PSC therefore asserts that its decision to adopt the combined cycle
combustion turbine in place of the internal combustion engine units was appropriate for its
calculation of avoided-energy costs because the combined combustion turbine, unlike the
internal combustion engine, is primarily an energy and not a capacity resource. The PSC
argues that QFs do not have to defer capacity payments until 2025, when the combined
combustion turbine comes online, because it used the 2018 aeroderivative unit as a proxy
for the internal combustion engine for calculating capacity payments. VS-MEIC argues
that PURPA requires capacity and energy costs to be considered together when setting the
avoided-cost rate such that the PSC’s decision to use proxy resources on a different
timeline than its next scheduled resource in its 2015 resource procurement was arbitrary
and unlawful.
¶52 Again, PURPA requires that QFs must be compensated for the utility’s full avoided
costs. 18 C.F.R. § 292.304(b)(2). Avoided costs include the “incremental costs to an
electric utility of electric energy or capacity or both which, but for the purchase from the
[QF], such utility would generate itself or purchase from another source.” 18 C.F.R.
§ 292.101(b)(6) (emphasis added). Avoided-capacity costs occur when a utility is reaching
maximum demand for its current energy supply throughout its service area and the utility
needs additional power to meet demand but building a new centralized power plant would
be excessive. FERC Order No. 69 at 12,216 (explaining that the capacity component serves
33
to ensure a reliable production of electricity during high-demand periods). Capacity costs
are therefore those costs associated with providing the capability to deliver energy,
composed primarily of the capital cost of the facility itself. FERC Order No. 69 at 12,216.
Conversely, energy costs are the variable costs associated with the production of electric
energy, entailing the costs of fuel and operating expenses. FERC Order No. 69 at 12,216.
¶53 PURPA provides a number of factors to be considered when setting the avoided-cost
rate, including “[t]he availability of capacity or energy from a [QF] during the system daily
and seasonal peak periods,” and “[t]he relationship of the availability of energy or capacity
from the [QF] . . . to the ability of the electric utility to avoid costs, including the deferral
of capacity additions and the reduction of fossil fuel use[.]” 18 C.F.R. § 292.304(e)(2),
(3). Moreover, in submitting avoided-cost rates, FERC directs utilities to submit energy
costs of each planned unit with the estimated capacity cost of planned capacity additions
in order “to ensure that the calculation of avoided costs includes the lower energy costs
that might be associated with the new capacity.” FERC Order No. 69 at 12,218 (emphasis
added). While energy and capacity costs are technically different costs, they are
fundamentally two parts of the same equation that must be considered together when
calculating avoided costs.
¶54 The PSC creates an arbitrary distinction between avoided capacity and energy costs
when setting the avoided-cost rate. To determine the rates for purchase from the QF, the
PSC explained that it takes avoided-capacity costs starting in 2019, divides the amount by
the expected energy production during on-peak hours, and then adds this amount to
avoided-energy costs during those on-peak hours. This explanation implicitly
34
acknowledges that energy and capacity costs are inextricably related. Calculating avoided
costs is necessary to compensate a QF for all avoided costs from the time the resource is
used as a proxy; if the PSC uses a proxy unit for determining avoided-capacity costs
beginning in 2019, then its avoided-energy costs must necessarily be sourced from the
same period. See 18 C.F.R. § 292.304(e)(3); FERC Order No. 69 at 12,218. Further, rates
for purchase from QFs “must be reasonable and based on current avoided least cost
resource data.” Whitehall Wind I, ¶ 21. The District Court did not err in determining that
the PSC’s decision to source avoided-energy costs from a resource that will not be online
until 6 years after its scheduled 2019 internal combustion engine resource was arbitrary
and in violation of PURPA and Montana law.
¶55 Likewise, the PSC’s assertion that the internal combustion engine is primarily a
“capacity” resource and not an “energy” resource is also arbitrary. The PSC argues in its
opening brief that the internal combustion engine “provides relatively on-demand power
which can quickly ramp up and down to meet periods of high demand.” But again, this
explanation tacitly concedes that building a new capacity facility allows NorthWestern to
produce more energy. And as a capacity-strapped utility, it is unreasonable to assume that
NorthWestern is adding capacity resources simply for capacity purposes. In fact, as
NorthWestern’s own witness John Bushnell admitted, even if the primary purpose of the
internal combustion engine unit is to provide capacity, the resource will also serve to
supplement NorthWestern’s energy purchases during high-demand hours. Because the
internal combustion engine resources will provide energy, regardless of its primary
purpose, this energy must be considered in the avoided-cost rate in order for the PSC to
35
comply with PURPA’s mandate that QFs be compensated for the utility’s full avoided cost.
18 C.F.R. § 292.304(b)(2); Am. Paper Inst., 461 U.S. at 406, 103 S. Ct. at 1924.
¶56 Further, the PSC arbitrarily applied the proxy methodology in calculating avoid
costs, limiting its application of this method exclusively to calculate capacity costs. In
Order No. 7500d, the PSC approved NorthWestern’s proposal to use the aeroderivative
unit as a proxy resource for avoided-capacity costs, describing a calculation to compensate
the QF for its “capacity contribution.” The PSC explained that its avoided-cost calculation
“results in rates that compensate QFs for their capacity contributions consistent with the
timing of the [internal combustion engine] units identified in NorthWestern’s 2015
[resource procurement plan].” However, “capacity contribution” involves a calculation
concerning the SPP method—an entirely different consideration—reflecting a facility’s
assumed capacity contribution during peak demand hours. Conversely, when determining
avoided costs under the proxy method, the PSC must consider the relationship of
availability of capacity (i.e., capacity contribution) to the ability of the electric utility to
avoid costs. 18 C.F.R. § 292.304(e)(3). Put differently, a resource’s capacity contribution
informs the avoided-cost rate; the avoided-cost rate does not inform capacity contributions.
The PSC’s erroneous conflation of these separate considerations does not escape PURPA
requirements which mandate that energy and capacity costs be considered together when
calculating the avoided-cost rate. 18 C.F.R. § 292.304(e).
¶57 The District Court did not err in concluding that the PSC’s calculation of the
avoided-cost rate was arbitrary and unlawful, in violation of PURPA and Montana law.
36
¶58 Issue Two: Whether the District Court erred when it concluded that the PSC
arbitrarily and unreasonably calculated solar QFs’ capacity contribution in
determining avoided costs.
¶59 The District Court held that the PSC arbitrarily determined that solar QFs contribute
6.1% of their overall generating capacity to NorthWestern’s capacity needs because the
PSC discounted NorthWestern’s substantial summertime capacity needs and disregarded
regional peak demand data. The court found that the PSC focused only on a handful of
peak demand hours—220 hours over a ten-year period—that reflect primarily infrequent
wintertime spikes while overlooking evidence that NorthWestern lacks sufficient capacity
to meet peak customer demand in both summer and winter.
¶60 The PSC and NorthWestern argue that the District Court erred because its capacity
contribution was reasonable when applying the SPP methodology. VS-MEIC asserts that
the PSC’s aggregation of the top 3% of load hours caused NorthWestern to exclude
summertime peak hours. In fact, NorthWestern’s 2015 resource procurement plan
acknowledges that its loads reflect dual-peaking periods, with maximum annual peak
demand occurring in both winter and summer seasons. 2015 Electricity Supply Resource
Procurement Plan at 2-12. The core of the issue, however, stems from the PSC’s
interpretation and application of the SPP methodology.
¶61 The PSC and NorthWestern provided some of the SPP planning criteria detailing
the steps used to calculate capacity contribution. These criteria require the PSC to:
(a) Assemble all available hourly net power output data;
(b) Select the hourly net power output values occurring during the top 3% of
load hours for the SPP Load Serving Entity for each month of each year
for the evaluation period; and
37
(c) Select the hourly net power output value that can be expected from the
facility 60% of the time or greater.
Additionally, subsection (d) provides that “A seasonal or annual net capacity may be
determined by selecting the appropriate monthly MW values corresponding to the Load
Serving Entity’s peak load month of the season of interest[].” The PSC accepted
NorthWestern’s application of this criteria, which explained that it applied these criteria by
“using the top 3% of load hours for each month, and a 60% generation exceedance value
for these hours in all of the annual peak months of the calculation period.” After
determining the peak load month for each year, the PSC further isolated the top 3% of load
hours for each of those 10 peak loads months, sorting all hours by generation from largest
to smallest to determine the generation amount exceeded at least 60 percent of the time.
¶62 The plain language of the SPP Planning Criteria demonstrates that subsections
(b) and (d) are different methods to aggregate data. However, the PSC conflates these two
factors, first using subsection (d) to limit its evaluation to only the highest peak load months
per year, and then, based on subsection (b), further limits its review to the top 3% of those
load hours of those 10 months. The PSC failed to clarify why its 3% isolation of the highest
hourly loads for each of those peak load months is only applied to the 10-peak load annual
months, when the 3% section clearly applies to “each month of each year for the evaluation
period.” Further, the PSC did not justify how the annual calculation alternative in
subsection (d) can first limit the months considered to only those peak load months of the
season of interest before applying the 3% aggregation of the top load hours in
subsection (b). The PSC also failed to explain why it utilizes part of the subsection (b)
38
VS-MEIC asserts is proper for determining capacity contribution, but disputes applying
the section fully by instead limiting its application by first isolating the peak load month
for each year, thus resulting in low capacity contributions.
¶63 The SPP methodology is a novel methodology not yet applied in Montana. While
it is certainly within the authority of the PSC to adopt an entirely new methodology to
calculate capacity contribution, it must still consider all relevant factors and adequately
explain why it interpreted the methodology in such a way. See Mont. Envtl. Info. Ctr., ¶ 26.
Moreover, the PSC cannot adopt a new methodology simply to circumvent PURPA’s
objective to encourage alternative energy development of small power production
facilities. 16 U.S.C. § 824a-3(a); Am. Paper Inst., 461 U.S. at 405, 103 S. Ct. at 1924.
Because the PSC’s interpretation contravenes the plain language of the SPP methodology
and the PSC did not explain why it interpreted the SPP as such, its interpretation and
application of the SPP methodology in calculating avoided-capacity costs was arbitrary
and unreasonable.
¶64 The District Court held that the PSC misapplied the SPP methodology because it
excluded regional peak demand in the data and NorthWestern is a dual peaking utility. We
conclude, however, that the PSC instead misapplied the methodology by acting contrary to
the plain language of the SPP criteria and did not articulate a satisfactory explanation for
its actions. Clark Fork Coal. I, ¶ 47. We will affirm the district court if it reaches the right
result, even for the wrong reason. State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272
P.3d 646. The District Court did not err in determining that the PSC’s application of the
SPP methodology was arbitrary and unreasonable.
39
¶65 Issue Three: Whether the District Court erred when it determined that the PSC
arbitrarily and unreasonably reduced maximum-length contracts to 15 years for
small solar QFs.
¶66 The District Court held that the PSC lacked substantial evidence necessary to
determine that 15-year contracts are sufficiently long term to enhance the economic
feasibility of qualifying small power production facilities in violation of PURPA and
Montana law. The PSC and NorthWestern argue the District Court erred because Congress
and FERC did not set specific contract-length requirements for QFs; the PSC implemented
this policy consistent with testimony offered by VS-MEIC; and the District Court
improperly relied on PSC staff recommendations in concluding that the PSC’s decision
was arbitrary and unlawful.
¶67 VS-MEIC argues that reducing contract lengths to 15 years violates PURPA and
Montana law because it does not support, let alone enhance, the economic feasibility of
QFs. VS-MEIC further asserts that there was an insufficient evidentiary record to support
its contract-length decision; that the PSC impermissibly relied on a North Carolina Public
Utilities Commission decision; that the PSC did not provide adequate notice prior to
shortening contract lengths; and that the decision to cut contract lengths must be analyzed
in light of the reduced QF rate.
¶68 PURPA and Montana law require that long-term contracts between the utility and
the QF must be encouraged in order to enhance the economic feasibility of the QF.
16 U.S.C. § 824a-3(a); FERC Order No. 69 at 12,226; § 69-3-604(2), MCA. Contract
lengths are important to consider in light of standard-offer QF rates; FERC provides that
long-term contracts allow for any overestimations and underestimations of avoided costs
40
to balance out so that neither the utility nor the QF is negatively affected by market
fluctuations, creating certainty with regard to return on investment in new technologies for
qualifying facility investors. FERC Order No. 69 at 12,224. Neither PURPA, FERC, nor
Montana statute offers a definition of “long term.”
¶69 Here, the PSC concluded that 15-year maximum-length contracts was supported by
the record evidence. We disagree. In fact, driven largely by its unilateral decision to
request additional testimony on contract lengths far along in the docket and its altered
reasoning set forth in Order No. 7500d following its staff recommendations, the PSC’s
decision to adopt 15-year maximum QF contract lengths was based almost entirely on a
2014 North Carolina Utilities Commission decision. However, the PSC lacks any intimate
knowledge regarding QF development policies in North Carolina or other states. Indeed,
we find the PSC’s justification especially dubious given its wholesale rejection of
out-of-state decisions as a consideration when setting the avoided-cost rate.
¶70 Further, the PSC did not explain why 15 years was feasible in balancing a need with
certainty regarding a return on investment in Montana, nor could it, given that the PSC also
found that NorthWestern and the Consumer Counsel failed to submit any evidence
supporting such a decision. And, it is undisputed that NorthWestern’s own resources enjoy
a guaranteed cost-recovery or rate of return, which is functionally equivalent to a contract
for at least 25 years. The PSC’s decision was clearly erroneous and not supported by
substantial evidence in the record. Section 2-4-704(2)(v), MCA.
¶71 We are similarly unpersuaded by the PSC’s and NorthWestern’s assertions that
VS-MEIC “generally supported” 15-year contract terms. While VS-MEIC submitted
41
expert testimony acknowledging that in some instances 15-year contracts may be the
minimum length necessary to secure financing, the PSC opportunely glosses over the fact
that VS-MEIC’s argument rests on the contingency that shorter contracts may only be
sufficient assuming there are appropriate standard-offer rates. Moreover, in misstating
VS-MEIC’s position, the PSC attempts to lessen PURPA’s directive, arguing that contract
lengths need only be long enough to “obtain” financing. But again, contracts must be long
enough to “encourage” and “enhance” the economic feasibility of QFs, not merely long
enough such that financing may be “possible.” 16 U.S.C. § 824a-3(a); § 69-3-604(2),
MCA. The PSC’s misinterpretation of VS-MEIC’s position does not constitute a reasoned
decision. Clark Fork Coal. I, ¶ 21.
¶72 The PSC’s decision further violated PURPA’s requirement that contracts be
sufficiently long term to “encourage” and “enhance” QF development. PURPA, FERC,
and Montana law are replete with the requirement that service commissions consider both
the length of contracts alongside contract prices, recognizing the synergistic effect of these
dual considerations. See 18 C.F.R. § 292.304(e)(2)(iii); FERC Order No. 69 at 12,224;
§ 69-3-604(2), MCA. Obtaining financing for QF projects fundamentally rests on whether
investors may ensure a return on investment. By establishing longer contract lengths,
investors remain insulated from forecast risk, as overestimations and underestimations of
avoided costs may balance out. FERC Order No. 69 at 12,224. However, amidst abridged
QF-1 rates, there remains little incentive for financers to fund prospective projects over
shortened contract terms.
42
¶73 To be sure, 15-year contracts, standing alone, are not per se unreasonable. But
because the PSC failed to consider shortened contract lengths in conjunction with greatly
reduced standard-offer QF-1 rates, 15-year contracts cannot be considered sufficient to
encourage and enhance QF development. 16 U.S.C. § 824a-3(a); § 69-3-604(2), MCA.
The District Court did not err in determining that the PSC’s decision to reduce maximum
solar QF contract lengths was arbitrary and unreasonable, not supported by the record
evidence, and did not comply with PURPA and Montana law.
CONCLUSION
¶74 For the reasons stated, the District Court did not err in concluding that the PSC’s
calculation of the avoided-cost rate was arbitrary and unlawful. The District Court also did
not err in concluding that the PSC arbitrarily and unreasonably calculated QF “capacity
contribution” values and arbitrarily and unreasonably reduced maximum-length QF-1
contracts to 15 years. The court may reverse or modify an agency decision if the substantial
rights of the appellant have been prejudiced because the agency decision violates
constitutional or statutory provisions, is made upon unlawful procedure, is affected by
other error of law, clearly erroneous in view of the substantial evidence on the whole
record, arbitrary or capricious, or characterized by an abuse of discretion. Section
2-4-704(2)(a), MCA. However, NorthWestern has since issued its 2019 resource
procurement plan detailing its most recent avoided-cost data. We leave the stay in place
and remand to the PSC for consideration of the factors set forth in this Opinion when setting
QF-1 standard-offer rates and contract lengths in all future regulatory proceedings.
43
/S/ MIKE McGRATH
We Concur:
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
Justice Beth Baker, concurring in part, dissenting in part.
¶75 I agree generally with the Court that the PSC did not comply with PURPA and
Montana’s “mini-PURPA” when it set the standard-offer contract rates and maximum
contract lengths for qualifying small (QF-1) solar power producers in July 2017, but I do
not join its Opinion in full.
¶76 First, it bears emphasis that the twin goals of non-discrimination against
independent renewable electric-energy producers and financial indifference to ratepayers
are subsumed in the statutory standards by which the PSC determines rates and conditions
of QF-1 contracts. Under § 69-3-604(4), MCA, the PSC is to “us[e] the avoided cost over
the term of the contract” to set these rates. As the Opinion discusses at some length,
“avoided costs” are the costs the utility would incur “but for the purchase from the
qualifying facility[.]” Opinion, ¶ 6 (quoting 18 C.F.R. § 292.101(b)(6)). Energy purchased
at avoided-cost rates thus leaves the consumer neutral. See Opinion, ¶¶ 6, 41. I thus
disagree with the Dissent’s view that the Court ignores consumer financial indifference. I
44
share the Court’s view instead that the PSC’s determination of avoided costs in this case
was faulty on several levels and must be reconsidered.
¶77 Second, however, it bears further emphasis that the statutes confer on the
“commission” the authority and responsibility to determine the rates and conditions of
QF-1 contracts. Section 69-3-604, MCA. The dispute between the parties over consumer
indifference and the impact on rates—reflected in the Court’s Opinion and the Dissent—
highlights why the courts should avoid any specific pronouncement of terms or conditions
that will govern such contracts. If, as the Court concludes, the PSC failed to balance a
fifteen-year contract length with appropriate consideration of other rate factors or either
misapplied or failed to explain adequately how it applied the SPP methodology, the PSC
must have latitude to consider each of these failures and decide for itself how to rectify
them.
¶78 I cannot agree to affirm the District Court when it not only vacated the PSC’s orders
but modified them by imposing specific requirements for the rates and conditions of the
QF-1 contracts. For example, the trial court expressly adopted the commission staff’s
recommendations to “us[e] the values for contract terms of twenty-five years”; mandated
that “the QFs must be compensated for [the] avoided energy costs beginning in 2019”;
made a finding that “the average capacity contribution of solar resources is 36%”; and
ordered the PSC to “direct NorthWestern Energy to make a compliance filing consistent
with the District Court’s findings” within twenty days of its order.
¶79 On appeal, although the Court leaves in place its stay of the District Court’s
directives and does not adopt its findings seriatum, it nonetheless affirms the decision.
45
Opinion, ¶ 1. We afford “deference to an agency’s evaluation of evidence insofar as the
agency utilized its experience, technical competence, and specialized knowledge in making
that evaluation.” Northwestern Corp. v. Mont. Dep't of Pub. Serv. Regulation, 2016 MT
239, ¶ 27, 385 Mont. 33, 380 P.3d 787 (citations omitted). In my view, the Court does not
leave adequate room for the PSC, applying its technical competence and specialized
knowledge, to consider and balance the “closely intertwined,” Opinion, ¶ 9, factors of
contract length, avoided costs, and availability and reliability of the electricity produced in
determining new rates and conditions. See § 69-4-604(1)-(4), MCA. I accordingly do not
join its Opinion but instead would reverse the District Court’s June 17, 2019 Order to Alter
or Amend and direct the court to remand the matter to the PSC for further consideration in
light of the flaws the Court identifies in the Commission’s analysis.1 The passage of time
means that such consideration would be applied to Northwestern’s next biennial
application to update its QF-1 avoided cost tariff. Reversing the District Court, instead of
affirming and staying its decision, would provide more clarity that the discretion to
consider the technical evidence and to determine the appropriate rates and conditions of
QF-1 contracts rests with the PSC.
/S/ BETH BAKER
1
I would affirm the trial court’s decision to vacate the symmetry finding, which no party
challenges on appeal.
46
Justice Jim Rice, dissenting.
¶80 Mandated by law, the most critical factor in the process of setting QF avoided cost
tariffs is protecting the customer—the ratepayer—from bearing any increase in utility rates
as a result of the tariff. See 16 U.S.C. § 824a-3(b) (“no such rule prescribed under [this
section governing tariffs] shall provide for a rate which exceeds the incremental cost to the
electric utility of alternative electric energy.”); Cal. Pub. Utilities Comm’n, 134 F.E.R.C.
¶ 61,044, 61160, see also n.67 (Jan. 20, 2011) (“Congress’s intent [is] that utility customers
be financially indifferent” concerning whether the utility purchases power from a QF,
purchases it from another source, or generates the power itself.). The language in 16 U.S.C.
§ 824a-3 about seeking to “encourage” small facility power production—specifically, to
“encourage . . . small power production” by “requir[ing] electric utilities to . . . purchase
electric energy from [small power] facilities”—is the Congressional statement of purpose
for creating the program of electrical energy purchases by utilities. Contrary to Appellees’
arguments herein, this policy is not the standard for setting the rates for such purchases.
Rather, ratepayer financial indifference is. While encouraging small facility development
is without question a general objective of both federal and state law, that objective is not a
mandate that supersedes ratepayer indifference, which is manifested in the calculation of
avoided costs. Opinion, ¶¶ 5, 6, 39.
¶81 In more common terms, “financial indifference” for purposes of setting QF tariffs
means that the consumers/ratepayers are to be held harmless. Tariffs for QF contracts are
to be “revenue neutral” to the consumer—imposing no greater cost for the provision of
47
power than utilities would otherwise pay for the same power. As clearly articulated by
Jason Brown, attorney for the Consumer Counsel, to the District Court:
I want to speak to the idea of consumer indifference, because it is the captive
consumers of Northwestern Energy who I represent that ultimately pay these
costs. It’s consumers that ultimately pay for QF projects. And [Petitioners]
here want to ignore this bedrock principle of PURPA, of consumer
indifference, which is embodied in the definition, your Honor, the very
definition of avoided costs.
By definition, rates must not exceed the avoided cost of new[,] that is[,]
marginal or incremental energy and capacity. And what that means in plain
English is we should pay no more for these projects than we otherwise would
if we didn’t have these projects. . . . [A] ratepayer should be indifferent to
whether the utility buys its energy capacity from a QF, from a utility-owned
project, or from a third party that’s not a QF. [Emphasis added.]
¶82 Unfortunately, though accurately described as the “bedrock principle of PURPA,”
and “the very definition of avoided costs,” ratepayer financial indifference has been almost
entirely ignored in the judicial review of the PSC’s decision in this case. Despite receiving
the above argument about this controlling principle, the District Court’s decision did not
even mention it, let alone enforce it. This Court’s Opinion, though extensive and well-
written, mentions ratepayer financial indifference only once in passing, Opinion, ¶ 39, but
neither conducts any analysis of its import nor gives any express consideration to this
mandate. In contrast, the Court emphasizes PURPA’s language of “encouraging” the
development of QF projects 11 times, repeatedly employing this purpose in its reasoning
on individual factors—despite the fact this language states the general Congressional
purpose of creating the utility buying program in the first place, not the statutory standard
for setting rates. As the Consumer Counsel well explains in its briefing, citing federal
authority:
48
No party disputes that “Congress enacted Section 210 of [PURPA] to
encourage cogeneration and small power production.” Whitehall Wind, LLC
v. Mont. Pub. Serv. Comm’n, 2015 MT 119, ¶ 2, 379 Mont. 119. This Court
has recognized the general policy of “allow[ing] the small facilities to
become and remain viable suppliers of electricity.” Whitehall Wind I, ¶ 7.
However, these goals do not override PURPA’s express requirement
that “these rates may not exceed the incremental cost to the utility of
purchasing alternative electric energy.” [Indep. Energy Producing Assoc.,
Inc. v. Cal. Pub. Utils. Comm’n, 36 F.3d 848, 856 (9th Cir. 1994)]. Nor do
PURPA’s policy goals override its black-letter definition of “avoided cost.”
[Emphasis and underlining added.]
¶83 If, as the Court’s opinion implies by its repeated emphasis, “encouraging” QF
development was the sine qua non for setting tariff rates, then every factor would
presumptively be resolved in favor of higher rates. And, indeed, the Court’s analysis leads
to that result: every factor is decided in favor of higher rates, with no consideration of the
“very definition of avoided costs”—ratepayer financial indifference, and no consideration
of the financial impact of its decision upon ratepayers. Consequently, the unfortunate
effect of judicial review in this case is the imposition of new “judicial rates” that drastically
increase costs to the ratepayers, in violation of PURPA.
¶84 One may wonder, if the QF tariff process simply makes mathematical calculations
of those costs avoided by Northwestern Energy because of energy alternatively provided
by QFs, then how can the effect on ratepayers be anything but financially neutral? The
Court’s Opinion assumes so, but the real answer to the question is that tariff-setting is not
a purely mathematical calculation, despite being framed within language that gives that
impression. To the contrary, the process is replete with subjective and speculative
assumptions about the future, and the weighing of policy alternatives. While we may prefer
to think of QF tariffs as premised upon mathematical calculations, in reality the process is
49
as much “crystal ball” as it is “calculator.” For example, the carbon cost factor has been
ruled “an uncertain cost stream” in past PSC decisions, rejected for all prior QF-1 tariffs,
and subjected to an ongoing debate over its viability (currently nonexistent) within the
federal regulatory environment—all of which rendered the threshold determination of
whether to here impose a carbon adder to the QF-1 tariff a decidedly nonmathematical
determination. The Court premises its decision to impose the first-ever carbon adder in a
QF-1 contract, not on science, but on the perceived insufficiency of the PSC’s rationale in
rejecting the adder, and the adder’s use in different regulatory contexts. Opinion, ¶ 44.
The carbon adder determination alone, with its theoretical value of $6.77 per MWh,
increases the cost Northwestern will be obligated to pay for QF-1 contracts, and,
correspondingly, adds millions of dollars to the costs consumers will pay in increased
utility rates. See 18 C.F.R. § 292.303; 16 U.S.C. § 824 a-3(M)(7) (utilities authorized to
recover costs of QF purchases directly from their customers).1
¶85 About that there is no need for speculation here, because the record demonstrates
the recent Montana history of overpriced QF tariffs in falling markets, as well as the drastic
impact judicial review will have upon the ratepayers as a result of this case. In 2012, the
PSC established QF-1 rates of $46.97 per MWh (off-peak) and $86.56 per MWh (on-peak).
1
Notably, such decisions over the years have resulted in a trend of over-priced QF contracts. “It
is fairly obvious today that ‘many state [public utility commissions] and legislatures greatly
overestimated long-run avoided costs, thus forcing utilities to buy huge amounts of overpriced
power.’ Some state commissions overestimated the amount (as well as price) of the power needed.
SoCal, one of the countries’ largest utilities, claims that QF contracts will be its largest source of
stranded costs.” John Burritt McArthur, Cost Responsibility Or Regulatory Indulgence For
Electricity’s Stranded Costs?, 47 Am. U. L. Rev. 775, 919 (1998) (internal citation omitted)
(emphasis added).
50
After a scheduled review of the rates, the PSC adjusted them upwards to $53.14/$92.73 for
2013. When the PSC ruled that NorthWestern’s 2014 petition failed to provide sufficient
information to adjust tariff rates, the 2013 rates remained in place as market energy prices
dropped significantly. The resulting inflated QF rates led to a Montana “gold rush” of QF
applicants seeking to participate in the bonanza. In 2012, six eligible QFs had sought use
of the tariff; in 2015, 45 did.2 NorthWestern entered five new QF contracts and then sought
emergency suspension of the tariff, which was ordered by the PSC. Because the inflated
tariffs exceeded NorthWestern’s avoided costs, the PSC determined that failure to suspend
the rates for solar QFs would impose $60 million in increased costs upon Montana
ratepayers under the contracts sought by the remaining QF applicants—and, to boot, a
carbon adder had not been included in the tariffs.
¶86 That led to the tariff determination now before us, and upon its rulings on the rate
factors, discussed below, the PSC set the new rates at $28.14/$37.26. Upon the scheduled
periodic review of the rates for updated market forecasts, the PSC increased the rates to
$32.78/$41.90. However, upon review, the District Court, after concluding the PSC’s
determination on every rate factor was “arbitrary” (see Order Vacating and Modifying,
April 2, 2019, ¶¶ 15, 17, 18, and 21), decided every factor in favor of higher rates and,
instead of remanding, set the new rates itself—without any consideration of ratepayer
financial indifference—at $42.71/$96.75. While PSC Order 7500d, as updated upon
scheduled review, established the value of a 3 MW solar QF-1 contract at $2.3 million, the
2
At that time, Solar was combined with wind. Beginning with the current cycle, solar was tariffed
separately.
51
District Court established the value at $4.9 million, a 113% increase over the PSC’s
determination. Readily obvious is that the District Court’s on-peak rates exceed even the
inflated rates the PSC suspended during the 2015 bonanza. Based upon the 2015
calculation made by the PSC, that the inflated rates would impose $60 million in new costs
upon ratepayers, the District Court’s new rates would impose rate increases upon
ratepayers in the amount of $104.5 million under the same assumptions ($2.613 million
increased contract value x 40 QF-1 applicants).
¶87 Locking NorthWestern into long-term, inflated QF contracts will also lock
ratepayers into long-term, inflated rates, in direct violation of what is the clear mandate of
PURPA, ratepayer financial indifference. As NorthWestern states, “[t]he new rates would
create an unlawful customer subsidy for solar development for 25 years.” As the PSC puts
it, “[t]he resulting decision is consequentially harmful to ratepayers.” Or, as the Consumer
Counsel puts it, “captive customers would be harmed by the district court’s order. . . . [T]he
district court upset the careful balance struck by the Commission between PURPA’s
general goal of encouraging QF development and its specific mandate that consumers
remain indifferent between QF and non-QF power.” The most revealing point about these
statements concerning the large increase in ratepayer costs is that Appellees do not
contradict them—Appellees simply argue that errors made by the PSC require the District
Court’s rate factor corrections, and steadfastly avoid any consideration of ratepayer
indifference. The Court agrees, affirming the District Court’s decision on every factor, and
in its entirety.
52
¶88 The above discussion underscores the critical importance of properly applying the
standards of review in cases involving technically complex, yet also significantly
subjective, determinations. The standards bear careful repeating. “The scope of review
under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43-44, 103 S. Ct. 2856, 2866-67 (1983); see also Clark Fork Coal. I,
¶ 27. The judiciary’s “role is not to reweigh the evidence.” Nw. Corp., ¶ 47. “[T]he court
should give deference to an agency’s evaluation of evidence insofar as the agency utilized
its experience, technical competence, and specialized knowledge in making that
evaluation.” Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 21, 353 Mont. 507, 222
P.3d 595 (citing § 2-4-612(7), MCA). If there is reasonable record support for the PSC’s
determination, we are to affirm it.
¶89 More, I believe the analytical approach taken by the Court in this case has distorted
the proper application of the standards of review to the PSC’s tariff decision. The Court
analyzes each factor in isolation and renders a decision on each as if they were sub-cases
to be decided individually. While perhaps not intended as a “divide and conquer” strategy,
this analysis nonetheless limits much of the PSC’s discretion, particularly with regard to
its ability to achieve ratepayer financial indifference. If each factor must be judged as its
own case, and decided on the strongest basis, the PSC will be unable to weigh and balance
between the factors as a tool to ensure that ratepayers receive the protection required by
PURPA. For example, the PSC may decide to adopt a supported methodology or
assumption that is more favorable to QFs under one factor, while balancing that advantage
53
by adopting a supported methodology or assumption that is less favorable to QFs on a
different factor. While the PSC may certainly err on an individual factor determination,
Whitehall Wind I, ¶ 27, the focus in these tariff cases must be on PURPA’s express mandate
that rates guarantee ratepayer indifference, and thus, the tariff decision is more than just
“the sum of its parts.” Here, there is an overlay: PURPA requires the PSC to keep its eye
on the bottom line, and courts should allow it the discretion to do so. Under the Court’s
approach, in combination with its “encourage QFs” quasi-rate standard, there is a
presumptive thrust to individually decide each factor in favor of the highest QF rate. This
precedent will likely force the PSC’s hand in future decisions and lead to much higher costs
and rates in violation of ratepayer indifference, which was buried by the courts in this case.
¶90 The District Court also broadly applied the standard of review to conclude every
sub-decision of the PSC was arbitrary and capricious, in spite of the principle that this
standard is a narrow one. In so doing, the District Court was quite obviously moved by the
PSC’s rejection of staff recommendations, from which the court drew heavily for its own
findings of fact and conclusions of law. This line of reasoning is a trend in recent district
court decisions. In three cases now pending before this Court, including this one, the
District Court has concluded the PSC acted arbitrarily by rejecting staff recommendations.
Regarding the carbon adder, as just one example, the District Court reasoned here: “The
Commission’s contrary finding, disregarding the recommendation of its own technical
staff, was arbitrary”; see also MEIC v. Northwestern Energy, 19-0565 (“the Final Order
did not address several issues raised by its own staff. . . . This omission itself renders the
Commission’s 2015 waiver decision arbitrary”) (emphasis added); MTSUN v. PSC, et al.,
54
19-0363 (“MTSUN is entitled to a carbon adder of $9.65 per MWh as recommended by
the staff”). The idea that a decision-making body’s rejection of staff recommendations
should be suspected as arbitrary has no authority in law, is arbitrary itself, and is
particularly inappropriate when applied to the PSC. By design, QF tariff decisions are
made in Montana by five public officials, elected in partisan elections, who are accountable
for these decisions to their constituents, even when acting in a quasi-judicial capacity.
Moreover, their constituents are ratepayers who are protected by federal law from inflated
QF tariff rates that translate into higher utility rates. It is not the staff who bear the duty to
represent and protect the constituent-ratepayers. The Commissioners are entitled to make
these decisions with appropriate deference and without fear that their failure to adopt a
contrary staff recommendation will suggest arbitrariness.
¶91 Turning to the factors, I would affirm the PSC’s determination on the carbon adder
or “adjustment,” reversing the District Court’s imposition of the first-ever adder in a QF-1
rate. To explain, “the Social Cost of Carbon . . . [is a] tool, developed by an interagency
working group, [that] attempts to value in dollars the long-term harm done by each ton of
carbon emitted.” Sierra Club v. FERC, 867 F.3d 1357, 1375, (D.D.C., 2017) (rejecting use
of the adder). The adder is “a federal working group’s calculation of the social cost of
carbon emissions. (Coal and gas plants emit carbon dioxide; nuclear, wind, solar, and
hydro plants don’t.).” Elec. Power Supply Ass’n v. Star, 904 F.3d 518, 522 (7th Cir. 2018).
Its purpose is to “rais[e] the costs that carbon-releasing producers incur to do business.”
Elec. Power Supply Ass’n, 904 F.3d at 524.
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¶92 First, the adder is technically not a “factor,” as it is not a mandated consideration
under either state or federal law. Section 69-3-303, MCA; 18 C.F.R. § 292.304. The Court
cites Cal. Pub. Utilities Comm’n, 133 FERC at 61,268, Opinion, ¶ 39, but the language
there was discretionary in the context of that case, and the Court offers no authority that,
in the subsequent 10 years, the adder has been made a general requirement. Consequently,
without legal force, the adder’s assessment lies entirely within the PSC’s discretion. While
a carbon assessment is considered in a variety of different contexts, in the QF tariff context
it runs headlong into PURPA’s definition of avoided costs, premised upon ratepayer
indifference. “[A]voided cost rates, in short, are not intended to compensate the QF for
more than capacity and energy.” Covanta Energy Group, 105 F.E.R.C. ¶ 61,004, 61,007
(Oct. 1, 2003) (explaining that environmental considerations are not included within the
factors for consideration under 18 C.F.R. § 292.304). As a discretionary matter, the PSC
should be given wide deference in its use.
¶93 As alluded to above, I believe there were legitimate reasons for the PSC’s
determination. The Court faults the PSC for inadequate reasoning, but the PSC came to
this issue from a long history in which it had addressed the issue often, and its reasoning
was clear and supported. The cost was speculative, had never been imposed, and its future
consideration within federal regulatory efforts was doubtful, having first been noticed for
repeal, and then repealed. As the Consumer Counsel’s expert testified, “[w]e have no way
of knowing if, and when, the [] market in Montana will incorporate a value of carbon and
what that value will be.” The District Court reasoned that the PSC had “departed from
precedent,” but was referring to the use of the adder in other contexts, not QF-1 tariffs;
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even so, given the highly speculative and unproven nature of the adder, and the lack of
legal mandate, the PSC should not be locked into a position to forever impose it when
conditions are subject to change or reassessment. These reasons provide a more than
sufficient justification for the PSC’s determination, particularly in light of the PSC’s duty
to ensure ratepayer indifference. Courts should not be imposing costs that regulatory
bodies have not found a basis to impose.3
¶94 The PSC has long been concerned that 25-year contracts expose ratepayers to
substantial risk, as rates based upon current market prices and necessarily speculative
future projections are set for the duration, even as the PSC also seeks to provide stability
for QF investment as required by state law. See § 69-3-604(2), MCA (“Long-term
contracts . . . must be encouraged in order to enhance the economic feasibility of qualifying
small power production facilities.”). However, “long-term” is not defined by law. The
PSC initially set the length at 10 years, but upon reconsideration, raised contract length to
15 years, concluding that a shorter length would not “provide QFs sufficient certainty with
regard to the potential return on investment in qualifying generating technologies or
enhance the economic feasibility of QFs.” The decision is a difficult one, but the question
is not whether another length was better supported in the record, or whether the
Commission went far enough in its determination to choose 15 years. The Court rejects
3
Indeed, courts should not be setting rates at all. If the agency’s decision is determined to be
incorrect and reversible, the matter should be returned to the agency for reconsideration. Whitehall
Wind I, ¶ 14 (“The [District] [C]ourt remanded the case with instructions to the PSC to set a new
rate that would take into account the avoided cost data submitted by Whitehall and the PSC.”).
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the PSC’s reliance on the North Carolina Utilities Commission’s approval of 15-year
contracts as “dubious given its wholesale rejection of out-of-state decisions as a
consideration when setting the avoided-cost rate.” Opinion, ¶ 69. It also rejects the PSC’s
reliance upon Appellees’ expert testimony that 15 years was within the duration range for
viable QF contracts because the PSC failed to acknowledge the conditions upon which the
expert testimony was offered. Opinion, ¶ 69. In my opinion, there is a sufficient record
basis for the PSC’s decision, particularly in light of the requirement of ratepayer
indifference, and I believe reversing for the reasons stated is substituting the judgment of
the court for that of the agency. As we have held, the factfinder is entitled to make
credibility assessments, weigh the evidence, and draw implications from the record to make
valuation decisions—even if rejecting the precise testimony offered by experts for both
sides. See In re Marriage of Clark, 2015 MT 263, ¶ 24, 381 Mont. 50, 357 P.3d 314(affirming trial court’s ranch valuation of $2.4 million despite lack of specific testimony
for that valuation, where it fell between the $1,172,513 offered by husband’s expert and
the $2,667,940 offered by wife’s expert). Here, the PSC’s decision fell between the
contract lengths offered by the parties.4
4
Although not emphasized by the parties’ arguments, the District Court also reversed the PSC’s
“symmetry” determination on QF contract length, wherein the PSC applied the length of a QF
contract symmetrically to a utility’s other, non-QF, resources. In doing so, the PSC departed from
many years of its contrary practice, and offered no reasoned analysis for doing so. The PSC does
not challenge the District Court’s holding on appeal. In light of the lack of record support and lack
of challenge, I would affirm the District Court’s reversal of this holding.
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¶95 The avoided energy and avoided capacity factors have been merged in the Court’s
analysis, which I believe is based upon an overreading of 18 C.F.R. § 292.101(b)(6),5 at
the expense of other provisions. The Court reasons that “[w]hile energy and capacity costs
are technically different costs, they are fundamentally two parts of the same equation that
must be considered together when calculating avoided costs.” Opinion, ¶ 53. Further, the
Court concludes that PURPA “mandate[s] that energy and capacity costs be considered
together when calculating the avoided cost rate,” citing 18 C.F.R. § 292.304(e). Opinion,
¶ 56. The Court thus concludes that the PSC’s analysis was “an arbitrary distinction
between avoided capacity and energy costs when setting the avoided-cost rate.” Opinion,
¶ 54.
¶96 However, the implementing regulations maintain a continuing distinction between
avoided energy and avoided capacity, and they expressly indicate that energy and capacity
must be considered as individual factors. 18 C.F.R. § 292.304(e) provides, in pertinent
part:
Factors affecting rates for purchases. In determining avoided costs, the following
factors shall, to the extent practicable, be taken into account:
(2) The availability of capacity or energy from a qualifying facility during the
system daily and seasonal peak periods, including:
(vi) The individual and aggregate value of energy and capacity from
qualifying facilities on the electric utility’s system;
(3) The relationship of the availability of energy or capacity from the qualifying
facility as derived in paragraph (e)(2) of this section, to the ability of the
5
18 C.F.R. § 292.101(b)(6) provides that avoided costs include “incremental costs to an electric
utility of electric energy or capacity or both.” See Opinion, ¶ 52.
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electric utility to avoid costs, including the deferral of capacity additions and
the reduction of fossil fuel use;
(Emphasis added.) While it cannot be denied that there are intersections between the
analyses, I believe these regulations are inconsistent with the Court’s statement that
PURPA “mandate[s] that energy and capacity costs be considered together,” Opinion, ¶ 56,
because I read them to require that the energy and capacity factors to be considered
individually—as analyzed by the PSC—and then their individual impacts combined and
assessed as an aggregate of the utility’s avoided costs. The Court reasons that the two
analyses do not fit together well, and that merger provides a superior analytical approach.
That may well be true, but I believe the regulations require otherwise.
¶97 This analytical clarification justifies the PSC’s argument that Vote Solar altered its
position on energy and capacity before the District Court, and, further, led the District
Court to erroneously conflate the factors in its analysis. While I would not dismiss Vote
Solar’s arguments as beyond the court’s jurisdiction, I would agree with Appellants’
arguments that the District Court erred. The District Court both approved the PSC’s 6.1%
capacity contribution (within its adoption of staff recommendations, which included the
6.1% capacity) and rejected it (in its later determination that the 6.1% capacity contribution
was arbitrary). I believe there was substantial support for the PSC’s approach and the
methodologies it employed in coming to its individual assessments of avoided capacity and
avoided energy, and that it accurately determined those costs.
¶98 The Southwest Power Pool (SPP) studies the nation’s electric grid and power
market, and its SPP Planning Criteria and Net Planning Capacity program is an industry-
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wide assessment tool for determining the capacity of small QF solar facilities. Neither
Vole Solar nor Cypress Creek disputed the use of this program. The PSC’s application of
the program yielded an avoided capacity calculation of 6.1%, and the PSC concluded that
Vote Solar’s 36% calculation was inconsistent with application of the SPP. (“The
Commission continues to rely on the SPP method . . . . [It] better represents the challenge
of meeting load obligations at all times in all years, rather than adopting the VS-MEIC
approach of finding the simple average of exceedance values calculated separately for each
year. . . . VS-MEIC’s failure to aggregate the annual data before measuring the exceedance
level has a significant impact on the final result and is not consistent with evidence on how
the SPP method works.” Order 7500d, ¶¶ 48-49). While it does appear the Commission
initially used factors from alternate subsections of the SPP in a way that may have limited
the sample size, upon reconsideration, it reassessed and considered a larger sample size of
months and loads than were required under either subsection. While in future proceedings
the PSC should bring clarity to the application of the subsections of the program, it
nonetheless remains clear to me that the PSC did not err by rejecting Vote Solar’s
extraordinary 36% capacity calculation as erroneous under the SPP, and that the PSC’s
6.1% determination is the most reasonable one of record. While it is correct that
NorthWestern also has a high summer peak demand for capacity that should be
acknowledged, that does not cure the fact that there is little solar capacity during
NorthWestern’s greatest demand times during winter, and assigning a 36% solar capacity
will result in a significant over-crediting error, and an enormous cost shift to the ratepayers.
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¶99 The proxy method of determining avoided energy costs has been long used by the
PSC and is not disputed. However, here the District Court’s conflation of the factors came
through as it faulted the PSC for ostensibly failing to consider the cost of additional
generating units NorthWestern planned to install in 2019 for increased capacity. However,
the PSC did consider the additional generation units as capacity resources in its avoided
capacity assessment, rather than as energy resources. The arguments of the parties and the
reasoning of the Court, addressed above, have not demonstrated to me that the PSC’s
consideration of the new units—in accordance with individual determinations of energy
and capacity that is required under 18 C.F.R. § 292.304(e)—is arbitrary, particularly under
the guiding principle of ratepayer indifference. I would thus reverse the District Court’s
determination.
¶100 Much was made by the District Court, and by the Appellees, of a Commissioner’s
comment about the potentially deleterious impact the PSC’s determinations could have on
QF development. Without regard to the question of bias, the comment itself captures a
reality in the development of alternative energy—that as a matter of economics, alternative
energy is more expensive to produce, and development cannot be sustained upon the QF
buying program alone. Many years of experience under PURPA’s buying program have
proven that “avoided cost is often insufficient to fund renewable energy.” Michael Dorsi,
Clean Energy Pricing and Federalism: Legal Obstacles and Options for Feed-in Tariffs,
35 Environs Envtl. L. & Pol’y J. 173, 176-77 (2012). “The claimed benefits of renewable
energy are not that it is cheaper to produce, but that it is a better deal once social costs are
considered.” Dorsi, 35 Environs Envtl. L. & Pol’y J. at 176. Nonetheless, under the limits
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imposed by PURPA, avoided costs “are not intended to compensate the QF for more than
capacity and energy,” Covanta Energy Group, 105 F.E.R.C. at 61,007, and, at bottom line,
“Congress’s intent [is] that utility customers be financially indifferent.” Cal. Pub. Utilities
Comm’n, 134 F.E.R.C. at 61,160. Of course, development of alternative energy is
encouraged by other state and federal programs and incentives, but the point here is that
courts are not permitted to further advance the laudable purposes of PURPA’s buying
program by shifting greater costs to the consumer than permitted by Congress. “When
states attempted to include externality costs in their avoided cost rates, FERC ruled that
only those costs which the utility faces may be considered in setting avoided cost.” Dorsi,
35 Environs Envtl. L. & Pol’y J. at 176. The duty of the courts is to strictly enforce
Congress’s express granting of protection to ratepayers.
¶101 In conclusion, I would hold that the District Court erred by reversing the PSC’s
determinations regarding the carbon adder, contract length, avoided capacity, and avoided
energy. While I would have reversed the Court’s failure to remand to the PSC to set new
rates, that concern is mooted by my other conclusions. I would affirm the District Court’s
reversal of the PSC on contract symmetry.
/S/ JIM RICE
Justice Laurie McKinnon joins in the dissenting Opinion of Justice Rice.
/S/ LAURIE McKINNON
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