Vote Solar v. Public Service Commn. , 2023 UT 13 ( 2023 )

2023 UT 13IN THE
SUPREME COURT OF THE STATE OF UTAH
VOTE SOLAR,
Petitioner,
v.
PUBLIC SERVICE COMMISSION OF UTAH, 1
Respondents
No. 20210041
Heard September 12, 2022
Filed June 22, 2023
On Petition from the Public Service Commission of Utah
Public Service Commission
No. 17-035-61
Attorneys: 2
Brian W. Burnett, Salt Lake City, Jennifer M. Selendy,
Philippe Z. Selendy, Caitlin J. Halligan, Joshua S. Margolin,
Lauren J. Zimmerman, Hannah O. Belitz, Samuel R. Breidbart,
New York, NY, for petitioner
Michael J. Hammer, Salt Lake City, for respondent Public Service
Commission of Utah
Emily L. Wegener, Stephen K. Christiansen, Heidi K. Gordon,
Salt Lake City, for respondent Rocky Mountain Power
Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,
Erin T. Middleton, Patricia E. Schmid, Asst. Solic. Gens., Salt Lake
City, for respondent Utah Office of Consumer Services
_____________________________________________________________
1Other respondents to this review are: ROCKY MOUNTAIN POWER,
UTAH OFFICE OF CONSUMER SERVICES, and UTAH DIVISION OF PUBLIC
UTILITIES.
2Amicus Curiae: Hunter H. Holman, Salt Lake City, for Utah
Clean Energy; Stephen F. Mecham, Salt Lake City, for Solar Energy
Industries Association
VOTE SOLAR v. PUBLIC SERVICE COMMISSION
Opinion of the Court
Sean D. Reyes, Att’y Gen., Justin C. Jetter, Spl. Asst. Att’y Gen.,
Robert J. Moore, Steven W. Snarr, Asst. Att’y Gens., Salt Lake City,
for respondent Utah Division of Public Utilities
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE HAGEN, and
JUSTICE POHLMAN joined.
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 In 2002, the Utah Legislature mandated that the Public Service
Commission (PSC) create a “net metering” program for customers
who also generate electricity. This prompted the PSC to order utility
companies to implement a net metering system. The net metering
system compensated consumers who installed solar panels for the
excess power they exported to the electric grid. In 2014, the
Legislature required the PSC to evaluate the costs and benefits of the
net metering program and, if necessary, modify the program based
on those findings. UTAH CODE § 54-15-105.1. In 2017, the PSC entered
into a settlement agreement with major stakeholders. As part of the
settlement agreement, the parties stipulated to the creation of an
“export credit rate” system, which would eventually replace the net
metering program.
¶2 The PSC then engaged in a lengthy public process to decide
what factors it should consider to calculate the export credit rate
(ECR). Several parties, including Vote Solar, testified and presented
evidence. In October 2020, the PSC issued an order that set forth the
inputs it would use to calculate the ECR (October Order). The
October Order also set an initial ECR. Vote Solar, among others,
moved the PSC to reconsider the inputs it would incorporate into the
rate, the appropriateness of calculating the rate at all, whether it was
arbitrary and capricious for the PSC to annually update the rate, and
whether the PSC’s decision to have unused credits expire annually
was arbitrary and capricious.
¶3 In December 2020, the PSC denied in part and granted in part
the motions for reconsideration (December Order). The PSC agreed
to reconsider some of the components of the ECR calculation but
made clear that it would not revisit other aspects of the October
Order. Vote Solar seeks review of the December Order.
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¶4 The PSC then held hearings during which it accepted
additional testimony and evidence on those aspects of the ECR that
the PSC had agreed to reconsider. In April 2021, the PSC adjusted
the ECR formula and recalculated the ECR (April Order). Vote Solar
does not seek review of the April Order.
¶5 Vote Solar asks us to reverse a number of the decisions the
PSC announced in the December Order. Vote Solar principally
argues that we should set that order aside because the PSC did not
comply with multiple statutory mandates when it discontinued the
net metering program and set the initial ECR. Vote Solar also
contends that the PSC’s decisions were not supported by substantial
evidence.
¶6 The Office of Consumer Services (OCS) moves to dismiss Vote
Solar’s petition for review, arguing that our jurisdiction extends only
to the PSC’s final agency action and that the December Order was
not final agency action. Rocky Mountain Power (RMP) joins in OCS’s
motion.
¶7 We grant OCS’s motion in part and deny it in part. We cannot
reach the substance of Vote Solar’s arguments concerning three of
the issues decided in December 2020 because the Administrative
Procedures Act limits our review to “final agency action.” UTAH
CODE § 63G-4-403(1). The following decisions, from the December
Order, were not final agency actions: that the PSC had met its
statutory burden to analyze costs and benefits of net metering, that
the PSC would only analyze cost-of-service costs and benefits in
creating the ECR, and that integration costs should be included in
the ECR calculation. For ease of reference, we refer to these as the
ECR Calculation Decisions. We therefore lack jurisdiction and have
no choice but to dismiss the petition as to these issues.
¶8 We deny OCS’s motion with respect to two issues decided in
the December Order: the decision to annually update the ECR and
the decision to require that unused credits expire. For ease of
reference, we refer to these as the ECR Operation Decisions. The
December Order represented the PSC’s final agency action on these
issues. When we turn to the merits of Vote Solar’s arguments on
these decisions, we conclude that the PSC did not exceed the bounds
of its authority, and we affirm the PSC.
BACKGROUND
¶9 The Utah Legislature enacted the “Net Metering Statute” in
2002. That statute required utility companies to buy back excess
power from customers who generate their own electricity. UTAH
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Opinion of the Court
CODE §§ 54-15-102, -103. The statute mandated that this be
implemented through a “net metering program.” See id. §§ 54-15-
102(12), -103(1). Under the net metering program, customers who
generated excess power (Customer Generators) could cancel out the
amounts they would have been billed by exporting unused energy to
the electric grid. See id. §§ 54-15-102(2)–(3), -104(3). Customer
Generators also received credits for any exported energy that
exceeded the Customer Generators’ use. Id. §§ 54-15-102(12)(c), -
104(3). These credits expired at the end of each year. Id. § 54-15-
104(3)(a)(ii).
¶10 The Net Metering Statute also required that the value of the
credits for exported power equal at least the utility company’s
“avoided cost,” although the statute gave the PSC discretion to
mandate a more generous credit to Customer Generators. Id. §§ 54-
15-102(8)(b), -104(3)(a)(i). The original statute allowed an electric
company to cap the number of Consumer Generators who could
participate in the net metering program if the total energy generating
capacity from customer generation systems reached 0.1% of the
company’s peak demand during 2001. See id. § 54-15-103(2). The Net
Metering Statute was amended in 2008 to change the allowable cap
to 0.1% of peak demand in 2007 and to permit the PSC to raise this
cap. Id. § 54-15-103(2)–(3).
¶11 In 2009, the PSC changed the net metering program in two
important ways. It increased the credit for exported power, and it
raised the cap on the net metering program to 20% of peak demand
in 2007. Participation in the net metering program soared.
¶12 As the net metering program’s popularity increased, RMP
and other organizations expressed concern that the net metering
program was shifting the program’s costs onto ratepayers who did
not participate in the program. This apparently motivated the
Legislature’s 2014 decision to amend the Net Metering Statute to
require the PSC to evaluate the costs and benefits of the net metering
program. See UTAH CODE § 54-15-105.1(1). The Legislature also
instructed the PSC to create a “just and reasonable charge, credit, or
ratemaking structure.” Id. § 54-15-105.1(2).
¶13 The PSC responded to this legislative mandate by opening a
docket to examine different ways to compensate Customer
Generators for the energy they exported. Multiple parties—including
Vote Solar—participated in discussions with the PSC. These
discussions culminated in a stipulated settlement agreement reached
between several key parties, including RMP, OCS, the Division of
Public Utilities, Vivint Solar, and the Utah Solar Energy Association.
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Vote Solar did not sign the settlement agreement, but it also explicitly
declined to object to the settlement. 3 The PSC approved the terms of
that settlement agreement in a 2017 order.
¶14 The PSC-approved settlement required utility companies to
implement an export credit rate to compensate Customer
Generators. 4 Although the settlement agreement stipulated to an
ECR, it did not address how the PSC should calculate that ECR. 5
Over the course of the next three years, the PSC heard testimony,
took evidence, and invited public comment on what factors it should
use to calculate the ECR. In October 2020, the PSC issued an order
that, among other things, identified what it considered to be the
relevant inputs and calculated an ECR based on those inputs. 6
_____________________________________________________________
3 A settlement agreement appears to be a term of art in this
setting. It refers to a tool for utility rate-making and involves the
regulatory authority seeking the agreement of many key
stakeholders. Agency-approved, non-unanimous settlement to
facilitate utility rate-making has been commonly used in the United
States for decades. Stefan H. Krieger, Problems for Captive Ratepayers
in Nonunanimous Settlements of Public Utility Rate Cases, 12 YALE J. ON
REG. 257, 279–85 (1995). We approved the practice in 1983. Utah Dep’t
of Admin. Servs. v. Pub. Serv. Comm’n, 658 P.2d 601, 615–16 (Utah
1983).
4 The order approving the settlement stipulation, issued in 2017,
stated that the PSC had not yet met its statutory burden of analyzing
the costs and benefits of the net metering program but would do so
in the future.
5 The settlement additionally provided that Customer Generators
who had entered the net metering program between its 2002
inception and a few weeks after the PSC’s approval of the 2017
settlement could remain in the program until 2035. The 2017 order,
in line with the stipulated settlement, also created a “transition
program” for Customer Generators who began exporting excess
energy to the grid between the 2017 settlement agreement and the
creation of an ECR.
6 The October Order recited that it fulfilled the Net Metering
Statute’s requirement that the PSC examine the costs and benefits of
the net metering program. However, the PSC noted in the Order that
it did not take a position on whether the statute, which required the
PSC to evaluate the costs and benefits of net metering and create a
(continued . . .)
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Opinion of the Court
¶15 More specifically, the PSC ruled that it would calculate the
ECR based on integration costs, avoided energy costs, avoided
generation costs, avoided transmission costs, and avoided
distribution capacity costs.
¶16 To the disappointment of many, including Vote Solar, the
PSC also concluded that it would be inappropriate to include factors
other than the cost-of-service in the ECR calculation. 7 The PSC
reasoned that, while it recognized “the importance of environmental
considerations, carbon policy, economic development, and public
health, these matters fall within the regulatory ambit of other
government agencies.”
¶17 In November 2020, Vote Solar and RMP—among others—
moved for reconsideration of the October Order. Vote Solar asked the
PSC to revisit several aspects of the ECR calculation. Vote Solar
wanted the PSC to reconsider the method of calculating avoided
energy, the method of calculating avoided capacity cost, the decision
to include integration costs in the calculation, and the PSC’s decision
to not include non-economic factors in the ECR. Vote Solar also asked
the PSC to reconsider its decision to have unused credits expire
annually and its decision to recalculate the ECR every year.
¶18 In December 2020, the PSC granted in part and denied in part
the requests for reconsideration. The PSC refused to reconsider the
portions of the October Order that Vote Solar had challenged. But the
PSC ordered rehearing on two of the issues RMP had asked it to
reconsider. The PSC left in place the ECR it set in October and
declared the order final with respect to any issue it was not
rehearing.
¶19 The PSC then took additional testimony and evidence and
issued a new order in April 2021. This order changed the ECR
formula and recalculated the ECR based on the updated formula.
new compensation program based on that evaluation, applied to the
creation of an ECR.
7 We have noted that a “rate based on cost of service means a rate
sufficient to pay operating costs plus the cost of a fair return to
investors for providing capital, both equity and debt.” Stewart v.
Utah Pub. Serv. Comm’n, 885 P.2d 759, 771 (Utah 1994) superseded on
other grounds by UTAH CODE § 78B-5-825.5, as recognized in Laws v.
Grayeyes, 2021 UT 59, ¶¶ 50, 54, 498 P.3d 410.
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¶20 Vote Solar seeks review of five issues decided in the
December Order: (1) whether the PSC met its statutory burden to
analyze the costs and benefits of net metering before creating the
ECR, (2) whether the PSC was required to include benefits other than
cost-of-service in creating its ECR calculation, (3) whether it was
proper to include integration costs in the ECR calculation,
(4) whether the ECR should be updated annually, and (5) whether
the ECR credits should expire at the end of each year.
¶21 OCS—in a motion RMP joins—moves to dismiss Vote Solar’s
petition, arguing that we lack jurisdiction to hear the petition
because the December 2020 order was not a final agency action that
confers jurisdiction on us. We indicated that we would hear the
motion to dismiss at the same time that we held arguments on the
merits of the petition.
STANDARD OF REVIEW
¶22 OCS’s challenge to our subject matter jurisdiction presents an
issue that we will decide in the first instance. As such, we have no
ruling to review, and no standard of review applies.
¶23 The two issues we address on the merits—Vote Solar’s
challenges to the PSC’s decisions to annually update the ECR and to
require unused credits to expire—contain different categories of
questions which require their own analysis on the appropriate
standards of review.
¶24 This analysis begins with the standards established by the
Administrative Procedures Act. The Act “sets forth the type of
agency actions for which we may grant relief,” but some sections
“do[] not expressly mandate the standards of review we must
employ when reviewing those actions.” Murray v. Utah Labor
Comm’n, 2013 UT 38, ¶ 18, 308 P.3d 461; see also UTAH CODE § 63G-4-
403. When a standard is not expressly mandated, “the applicable
standard of review will depend on the nature of the agency action.”
Murray, 2013 UT 38, ¶ 22.
¶25 Vote Solar’s challenge to annually updating the ECR contains
two sub-issues. The first is the PSC’s determination that Customer
Generators and other non-power-generating residential customers
constitute different classes of customers. This presents a fact-like
mixed question of fact and law. Without a clear standard of review
from the statute, “we apply our traditional standards of review.”
Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 9, 345 P.3d 1242.
“[W]e review fact-like mixed questions deferentially.” Randolph v.
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Opinion of the Court
State, 2022 UT 34, ¶ 24, 515 P.3d 444; see also Sawyer v. Dep’t of
Workforce Servs., 2015 UT 33, ¶ 11, 345 P.3d 1253.
¶26 The second sub-issue challenges the PSC’s determination that
the ECR should update annually. Vote Solar contends that this
determination lacks factual support. The Administrative Procedures
Act “authorizes appellate courts to grant relief where an ‘agency
action is based upon a determination of fact, made or implied by the
agency, that is not supported by substantial evidence when viewed
in light of the whole record before the court.’” Provo City v. Utah
Labor Comm’n, 2015 UT 32, ¶ 8 (quoting UTAH CODE § 63G-4-
403(4)(g)). Accordingly, “a challenge to an administrative agency’s
finding of fact is reviewed for substantial evidence.” Id.
¶27 Vote Solar likewise challenges the PSC’s decision to require
unused credits to expire as lacking evidentiary support. We review
that under the Act’s substantial evidence standard as well.
ANALYSIS
¶28 OCS claims that we lack jurisdiction because the December
Order was not final agency action. OCS argues that the agency action
at the heart of the PSC docket established a formula for an ECR, and
then calculated that ECR. OCS posits that there could not be final
agency action until the PSC had resolved the motion for rehearing,
decided what components it would use to calculate the ECR, and
then recalculated the ECR based on that formula.
¶29 Our jurisdiction comes from the Utah Constitution. Article
VIII, section 3 of the Utah Constitution vests this court with
jurisdiction over extraordinary writs and questions certified from the
federal court. Section 3 also provides that the Supreme Court “shall
have appellate jurisdiction over all other matters to be exercised as
provided by statute.” UTAH CONST. art. VIII, § 3.
¶30 The Legislature has defined the Supreme Court’s appellate
jurisdiction over “final orders and decrees in formal adjudicative
proceedings originating with . . . the Public Service Commission.”
UTAH CODE § 78A-3-102(3)(e)(i). The Administrative Procedures Act
further refines this court’s appellate jurisdiction to review an
agency’s formal adjudicative proceeding as jurisdiction over “final
agency action.” Id. § 63G-4-403(1). 8 The Legislature has not
_____________________________________________________________
8 An astute reader might question why this court focuses on the
“final agency action” language of the Administrative Procedures Act
when Utah Code section 78A-3-102(3)(e)(i) gives us jurisdiction over
(continued . . .)
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statutorily defined final agency action. And we appear to have had
surprisingly few opportunities to examine what it means for an
agency’s action to be final. Because much of our analysis will turn on
what it means to be “final agency action,” we take a few paragraphs
to examine how our case law on that question has developed.
¶31 We first took up the question in Barker v. Utah Public Service
Commission, 970 P.2d 702 (Utah 1998). There, we were presented with
the question of whether the PSC’s award of attorney fees was final
agency action. Id. at 705.
¶32 In litigation that preceded the dispute at issue in Barker, a
group of ratepayers had asked for review of a PSC rate-making
decision and sought an award of the fees they had incurred
challenging the rate in front of the Commission and this court.
Stewart v. Utah Pub. Serv. Comm’n, 885 P.2d 759, 781–84 (Utah 1994),
superseded on other grounds by UTAH CODE § 78B-5-825.5, as recognized
in Laws v. Grayeyes, 2021 UT 59, ¶¶ 50, 54, 498 P.3d 410. We agreed
with the ratepayers and remanded. Id. at 762, 784. We also awarded
the ratepayers their attorney fees and instructed the PSC to
“determine the amount of time reasonably expended by [the
ratepayers’] attorneys on the issues before the Commission and on
appeal upon which [the ratepayers] have prevailed.” Id. at 783.
¶33 In Barker, the ratepayers challenged the PSC’s order
awarding attorney fees. Barker, 970 P.2d at 704–05. The ratepayers
argued that the PSC had unreasonably discounted the fees they
incurred. Id. at 705, 709. The PSC argued that the attorney fee award
was not final because the PSC was rehearing the calculation of a
refund to its customers that flowed from our decision in Stewart.
Barker, 970 P.2d at 705–06. We rejected that argument, concluding
that the reconsideration of the refund order had no bearing on the
attorney fee award. Id.
“final orders . . . originating with” the PSC. This is because Utah
Code section 78A-3-102(6) states that “[t]he Supreme Court shall
comply with the requirements of Title 63G, Chapter 4,
Administrative Procedures Act, in its review of agency adjudicative
proceedings.” We have interpreted this to mean that our jurisdiction
is premised on final agency action, as that term is used in the
Administrative Procedures Act. See, e.g., Union Pac. R.R. Co. v. Utah
State Tax Comm’n, 2000 UT 40, ¶¶ 11–16, 999 P.2d 17.
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¶34 Along the way, we defined “final agency action.” We drew
on United States Supreme Court precedent and the Model State
Administrative Procedures Act to craft a definition. Id. at 705-06.
¶35 We first explained the holding of the then-current United
States Supreme Court precedent regarding the Administrative
Orders Review Act, 28 U.S.C. § 2342 (1988):
The relevant considerations in determining finality are
whether the process of administrative decisionmaking
has reached a stage where judicial review will not
disrupt the orderly process of adjudication and
whether rights or obligations have been determined or
legal consequences will flow from the agency action.
Barker, 970 P.2d at 706 (cleaned up) (quoting Port of Boston Marine
Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71
(1970)).
¶36 We then noted that “the Model State Administrative
Procedure Act defines final agency action negatively as ‘the whole or
a part’ of any action which is not ‘preliminary, preparatory,
procedural, or intermediate with regard to subsequent agency action
of that agency or another agency.’” Id. (quoting 1981 Model State
Admin. P. Act § 5-102(b)(2)).
¶37 Two years later, we took up the question in Union Pacific
Railroad Co. v. Utah State Tax Commission, 2000 UT 40, 999 P.2d 17. In
Union Pacific, a railroad company challenged the Utah State Tax
Commission’s Property Tax Division’s valuation of its properties,
first before the Tax Commission, then before the court. Id. ¶¶ 4–9.
The Commission issued four orders. Id. ¶¶ 4–7. The first order
decided the initial challenge but allowed twenty days for a motion
for reconsideration. Id. ¶ 4. The parties moved for reconsideration,
and the Tax Commission issued a second order based on that
proceeding, again allowing twenty days to file a motion for
reconsideration. Id. ¶ 5. After the second order, an untimely
challenge to the first order led to a third order from the Commission.
Id. ¶¶ 5–7. The third order stated that the time for rehearing of the
first order had elapsed and did not allow for reconsideration before
the Tax Commission, only a petition for review to this court or the
district court. Id. ¶ 6 & n.2. The parties then moved for
reconsideration on the second order, and the Commission’s fourth
order denied that motion and, like the third order, did not allow for
agency reconsideration, only review by this court or the district
court. Id. ¶ 7.
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¶38 Union Pacific sought review of the fourth order, petitioning
for review in both the district court and this court, although both
petitions came well after the thirty-day deadline. Id. ¶ 8. The district
court dismissed for lack of subject matter jurisdiction. Id. ¶ 9. Union
Pacific argued before us that the fourth order was not “final agency
action,” and therefore it was not required to have sought review
within the thirty-day window. Id. ¶ 10. Union Pacific asked us to
remand to the Tax Commission “for issuance of a final order” that
would constitute final agency action and trigger our jurisdiction and
Union Pacific’s time to petition for review. Id.
¶39 In Union Pacific, we expanded upon Barker and articulated
the test for “final agency action”:
(1) Has administrative decisionmaking reached a stage
where judicial review will not disrupt the orderly
process of adjudication?;
(2) Have rights or obligations been determined or will
legal consequences flow from the agency action?; and
(3) Is the agency action, in whole or in part, not
preliminary, preparatory, procedural, or intermediate
with regard to subsequent agency action?
Id. ¶¶ 15–16.
¶40 We explained that “[a]gency actions that meet the foregoing
test are appealable from the date of the order’s issuance until the last
day to appeal the last final agency action in the case.” Id. ¶ 16
(cleaned up).
¶41 The Union Pacific court held that the Tax Commission’s
fourth order was final and that the petitioner had missed the
deadline to seek review. Id. ¶ 24. When we analyzed whether ruling
on the fourth order would disrupt the “orderly process of
adjudication,” we emphasized that “by denying reconsideration of
its earlier findings and conclusions, the Tax Commission reached the
end of its decisionmaking process.” Id. ¶ 19.
¶42 We further held that “rights or obligations” had been
determined because the order affirmed the railroad’s tax obligations.
Id. ¶¶ 16, 20. We also opined that the order was not “preliminary,
preparatory, procedural, or intermediate” because it “did not
remand the valuation issues for further proceedings[,] nor . . . deny
motions to dismiss. Instead, . . . [it] denied requests to reconsider the
Tax Commission’s holdings . . . and ended its decisionmaking
process by leaving no issues unresolved.” Id. ¶ 21.
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¶43 Our next opportunity to examine what final agency action
means came in a case in which we reviewed a court of appeals
decision applying the Union Pacific test: Ameritemps, Inc. v. Utah Labor
Commission (Ameritemps) 2007 UT 8, 152 P.3d 298, aff’g Ameritemps,
Inc. v. Labor Commission, 2005 UT App 491, 128 P.3d 31.
¶44 In that case, a worker sought compensation for an on-the-job
injury. Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491, ¶¶ 2–3,
aff’d sub nom Ameritemps, Inc. v. Utah Labor Comm’n, 2007 UT 8. The
worker’s employer sought review of the Labor Commission’s
conclusion that he had suffered permanent, total disability. Id. ¶¶ 5–
6. The employer argued that there could be no judicial review of the
order designating disability because the determination was not final
under the Workers’ Compensation Act until the Commission ruled
on a reemployment plan. Id. ¶¶ 9, 12 (citing UTAH CODE § 34A-2-413
(2005)).
¶45 The court of appeals applied the Union Pacific test and held
that review of the order would not disrupt the orderly process of
adjudication because the Labor Commission had denied
reconsideration on the finding of disability. Id. ¶ 20. The court of
appeals reasoned that the disability analysis was distinct from the
analysis the Labor Commission would conduct to approve the
reemployment plan. Id.
¶46 The court of appeals held the second factor was met because
the Labor Commission had determined rights or obligations when
disability payments had begun based on the order. Id. ¶ 21.
¶47 The court of appeals also held that the order declaring the
worker permanently disabled was not “preliminary, preparatory,
procedural, or intermediate” because it “decide[d] permanent total
disability with finality.” Id. ¶¶ 22–23. The court pointed out that in
Barker, we provided examples of orders that are “preliminary,
preparatory, procedural, or intermediate,” namely a “remand for
further proceedings,” “an order converting informal proceedings to
formal” proceedings, and an order denying a motion to dismiss. Id.
¶ 22 (quoting Barker, 970 P.2d at 706). The court of appeals did not
think that any of these examples were analogous to the Labor
Commission’s disability determination. See id. ¶ 23.
¶48 We affirmed the court of appeals. Ameritemps, 2007 UT 8,
¶¶ 10, 13. In our opinion, we noted that the parties had not
adequately briefed the jurisdictional issue, even though it was the
only issue on which we had granted certiorari. Id. ¶ 11. We wrote:
“For the most part, the parties disregarded the question on which we
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granted certiorari, and they treated superficially, if at all, the rule of
law at issue.” Id.¶49 Despite the absence of briefing, we adopted the court of
appeals’ analysis whole cloth because “the clarity and correctness of
the court of appeals’ analysis was sufficient to allow us to resolve
any misunderstanding that may have existed about the current state
of the law.” Id. ¶ 12. 9 We thus concluded that the order determining
disability constituted final agency action. Id. ¶¶ 10, 13.
¶50 Our most recent application of the Union Pacific test can be
found in Heber Light & Power Co. v. Utah Public Service Commission,
2010 UT 27, 231 P.3d 1203. There, we applied the Union Pacific test to
a PSC scheduling order. Id. ¶¶ 7–12.
¶51 Heber Light & Power (Heber Light) is a municipal power
company that was purveying power outside of its authorized
bounds. Id. ¶ 3. RMP filed a complaint with the PSC to prevent
Heber Light from continuing the practice. Id. ¶ 1. Heber Light moved
to dismiss, arguing that the PSC lacked jurisdiction because Heber
Light is not a public utility and is therefore outside the PSC’s
jurisdiction. Id. The PSC denied that motion and entered a
scheduling order indicating it had jurisdiction over the issue. Id.
Heber Light sought review. Id. ¶ 2.
¶52 We applied the Union Pacific test and concluded that the
scheduling order failed all three inquiries. Id. ¶¶ 8–12. We first held
that hearing a challenge to the scheduling order would disrupt the
orderly process of adjudication. Id. ¶ 9. We reasoned that the PSC
had not yet decided the substantive issues, because it had only
concluded that it had jurisdiction. Id. ¶¶ 8–9. We wrote: “Far from
ending the administrative process, the order signaled the beginning
of the process, a process that would be disrupted were Heber Light
allowed to appeal.” Id. ¶ 9.
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9 Ameritemps is our precedent, precedent that no party has
challenged. We note, however, that our decision there appears to
have been influenced by the shabby briefing the parties provided.
See Ameritemps, 2007 UT 8, ¶¶ 11–12. We certainly did not show our
work in that decision nor explain why we thought the court of
appeals was correct. This causes us to view Ameritemps with a little
caution and leaves us a bit wary of any lessons we might try to draw
from the case.
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Opinion of the Court
¶53 We opined that the scheduling order did not determine
rights or obligations. Id. ¶ 10. And we held that the order was
“[p]reliminary, [p]reparatory, [p]rocedural, or [i]ntermediate,”
because it was a denial of a motion to dismiss. Id. ¶¶ 11–12. We
noted that “the Commission was still in the process of adjudicating
the dispute after the order was issued.” Id. ¶ 11.
¶54 It is this case law that OCS draws upon to argue that the
December Order is not final agency action. More specifically, OCS
argues that the December Order fails the first and third parts of the
Union Pacific test. OCS contends that the December and April Orders
each ultimately set an ECR, so if Vote Solar seeks review of the
December Order but not the April Order, the orderly process of
adjudication will be disrupted. OCS also argues that the December
Order was “preliminary, preparatory, procedural, or intermediate”
because it granted a rehearing on issues that would impact the
ultimate (and still not fully decided) calculation of the ECR.
¶55 We partially agree with OCS. When we run the December
Order through the Union Pacific test, we see that the PSC had not
taken final action on those issues necessary to calculate the ECR. This
means we lack jurisdiction to consider Vote Solar’s challenges
centered on whether the PSC analyzed the costs and benefits of net
metering before creating the ECR, whether the Net Metering Statute
required the PSC to include benefits other than cost-of-service in the
ECR calculation, and whether the PSC could properly include
integration costs in the ECR. As noted above, we refer to these as the
ECR Calculation Decisions.
¶56 The PSC did take final agency action in the December Order
on two of the issues Vote Solar challenges. The PSC reached the end
of its decision-making on whether the ECR should be updated
annually and on whether the ECR credits should expire at the end of
each year. We refer to these as the ECR Operation Decisions.
I. THE DECEMBER 2020 ORDER WAS INTERMEDIATE WITH
REGARD TO SUBSEQUENT PSC ACTION ON THE ECR
CALCULATION DECISIONS
¶57 OCS argues that the December Order was “preliminary,
preparatory, procedural, or intermediate with regard to subsequent
agency action,” and thus is not final agency action. (Quoting Union
Pac. R.R. Co. v. Utah State Tax Comm’n, 2000 UT 40, ¶ 16, 999 P.2d 17.)
OCS contends that because the December Order granted a motion to
reconsider aspects of the ECR, and because a new ECR was set in
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April, the December Order was intermediate in the truest sense of
the word.
¶58 Vote Solar argues that the December Order was final because
the PSC had “reached the end of its decision-making process” on
those components of the ECR it challenges in this court. (Quoting
Barker v. Utah Pub. Serv. Comm’n, 970 P.2d 702, 706 (Utah 1998).)
¶59 We see it differently and conclude that the December Order
was an intermediate order as to the ECR Calculation Decisions. A
number of Vote Solar’s challenges focus on the way the PSC
intended to calculate the ECR. Vote Solar asks us to review whether
the PSC has met its statutory burden to weigh the costs and benefits
of net metering and the PSC’s decision to include integration costs,
and to not include non-economic factors in the ECR. Each of these is
a challenge to the validity or outcome of the ECR calculation.
Because the PSC granted a motion to reconsider aspects of the ECR’s
calculation, the PSC did not take final action on the ECR Calculation
Decisions until the April Order.
¶60 Vote Solar claims that our case law dictates a contrary result.
It argues that “Utah courts have consistently held that an agency
order is final agency action where it decides certain issues with
finality and leaves others unresolved.” Vote Solar contends that the
issues it challenges from the December Order are “discrete
components” of the ECR calculation that can be used to “calculat[e]
an output.” That is true as far as it goes, but it fails to tell us what
issues in the December Order were decided with finality.
¶61 The cases Vote Solar makes the centerpiece of its arguments
are not much help to it either. Neither of the orders we examined in
Barker and Ameritemps were intermediate the way the ECR
Calculation Decisions are here.
¶62 The Barker order concerned attorney fees that would not be
changed when the PSC reheard the refund calculation. Barker, 970
P.2d at 705; see supra ¶¶ 31–36. Similarly, nothing the Labor
Commission did with the reemployment plan in Ameritemps would
modify the substance of the challenged order: a determination that
the Ameritemps employee had suffered a permanent, total disability.
Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491, ¶ 23, 128 P.3d 31,
aff’d sub nom. Ameritemps, Inc. v. Utah Labor Comm’n, 2007 UT 8, 152
P.3d 298; see supra ¶¶ 43–49. These orders were not intermediate
because—while the orders were related to other issues being
litigated—those ongoing issues did not depend on—or potentially
change based on—the outcome of the orders’ review.
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Opinion of the Court
¶63 Such is not the case here. Many of the issues decided in the
December Order could flow into the issues that the PSC was
rehearing. For example, the PSC calculated the ECR in the April
Order by applying the integration costs the PSC identified in the
December Order. But the October and December ECR also factored
in some inputs that the PSC reconsidered in the April Order.
¶64 Similarly, Vote Solar challenges whether the PSC analyzed
the costs and benefits of net metering before creating the ECR and
whether the Net Metering Statute required the PSC to include
benefits other than cost-of-service in the ECR calculation. Although
the PSC strongly signaled the fate of those issues when it refused to
rehear them, there was no final action on those topics until the PSC
completed the task of defining the ECR. This is because until the PSC
declared its work on the ECR calculation complete, it could always
go back and adjust the calculation to include other benefits or
redefine the costs and benefits of the net metering program.
¶65 In other words, until the PSC presented its final ECR, we
would not be able to definitively say what it included and what it
excluded. Nor could we say what the PSC had considered until it
stopped considering. This means that the question of what inputs the
PSC would use to calculate the ECR and the question of the validity
of what the PSC used to create the ECR calculation at all were in flux
until it finished ruling on the motion for reconsideration. This makes
the December Order intermediate with respect to the ECR
Calculation Decisions. And intermediate orders are not final agency
action.
¶66 This analysis does not change simply because the PSC
announced—in the order partially denying rehearing—that it did
not intend to revisit a number of decisions about the inputs it would
use. 10 Vote Solar suggests that the PSC’s representation meant that
_____________________________________________________________
10 Vote Solar argues that the PSC dubbing the December Order
“final” should be granted “significant weight” in analyzing whether
it is final agency action. We recognize that it may be frustrating to
parties that an agency’s statement that an order is final is not
determinative of finality. But, as we have stated, “agency decisions
premised on pure questions of law are subject to non-deferential
review for correctness.” Ellis-Hall Consultants v. Pub. Serv. Comm’n
2016 UT 34, ¶ 27, 379 P.3d 1270. If we were to defer to an agency’s
conclusion about the finality of its order, we would, in essence, give
the agency a disproportionate say in when our jurisdiction adheres.
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the PSC had reached the end of the road on those issues it said were
final, making them final agency action and fair game for review. This
type of reasoning, however, would read “intermediate” out of the
Union Pacific test. The focus should be on whether the issues will
continue to play a role in decisions the PSC has yet to make and not
on the PSC’s declarations about whether it intends to rehear those
issues. Here, the ECR Calculation Decisions were “preliminary,
preparatory, procedural, or intermediate with regard to subsequent
agency action” until the ECR calculation was set in April. See Union
Pac. R.R. Co., 2000 UT 40, ¶ 16.
A. Proper Application of the Union Pacific Test Does Not Preclude
Agency Orders from Ever Becoming Final Agency Action
¶67 Vote Solar pushes back against this conclusion by raising a
policy concern. Vote Solar contends that if we conclude the
December Order is intermediate, it will make it much more difficult
to petition for review of agency actions. Vote Solar reasons that, if
the existence of the April Order changing some inputs of the ECR
calculation makes the December Order not “final agency action,”
then the existence of the August 2021 Order updating the ECR, or
the other further orders in the docket, would make the April Order
non-final and therefore unreviewable. Vote Solar predicts that this
would render agency action forever unreviewable because the
agency could continually move the goalposts, thereby never taking
final agency action.
¶68 We see the issue, but it is one that is better understood as a
mootness concern. Once the PSC settled on the formula it would use
to calculate the ECR, we had final agency action.
¶69 We understand Vote Solar’s argument that the PSC might
later change the ECR calculation in a way that impacts the issues on
review. That would not, however, retroactively shift the nature of
what the PSC had decided from final to non-final. It might, however,
render our review of the prior order moot.
¶70 We understand Vote Solar’s concern that it might be difficult
to seek review if the PSC changes its approach and moots a
challenge. But the way to address this concern is not to expand the
definition of final agency action, but to recognize that our
jurisprudence allows us to, in certain circumstances, hear a mooted
challenge. For example, an exception to mootness exists when an
issue will “(1) affect the public interest, (2) be likely to recur, and
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VOTE SOLAR v. PUBLIC SERVICE COMMISSION
Opinion of the Court
(3) because of the brief time that any one litigant is affected, be likely
to evade review.” Widdison v. State, 2021 UT 12, ¶ 14, 489 P.3d 158(cleaned up). 11
II. RULING ON THE ECR CALCULATION DECISIONS WOULD
DISRUPT THE ORDERLY PROCESS OF ADJUDICATION
¶71 The Union Pacific test also asks whether “administrative
decisionmaking [has] reached a stage where judicial review will not
disrupt the orderly process of adjudication.” Union Pac. R.R. Co. v.
Utah State Tax Comm’n, 2000 UT 40, ¶ 16, 999 P.2d 17. OCS argues
that hearing a challenge to the December Order would disrupt the
“orderly process of adjudication.” OCS primarily argues that
problems could arise if this court took jurisdiction over the
December Order—which set an ECR—at the same time the PSC
revisited that ECR on a motion for rehearing.
¶72 Vote Solar does not dispute that the PSC continued to
calculate the ECR after it issued the December Order. But it contends
that does not matter because the decisions it challenges on review
were decided with finality in December 2020 and are separate issues
from the components of the ECR decided in April 2021. Vote Solar
argues that we could address some ECR components while the PSC
continued its process on other ECR components without disrupting
the orderly process of adjudication. We are not as sanguine as Vote
Solar.
¶73 Vote Solar’s petition for review of the December Order while
the PSC was reconsidering the ECR created the potential for dueling
orders. Should we conclude that the December Order is a final
agency action, and then agree with Vote Solar on some of its
arguments on review, the PSC would need to change its approach.
Depending on how we ruled, the PSC might need to recalculate the
ECR with a different set of inputs or perhaps even go back and do a
different cost-benefit analysis of the net metering program. This
hypothetical holding would also make the ECR that the PSC set in
the April Order legally infirm because it is based on those inputs in
the December Order and the decision that the cost-benefit analysis
_____________________________________________________________
11 We offer no opinion on how we might rule on such an
argument. We raise the potential argument to highlight that the
concerns Vote Solar advances may raise the type of issues that
animate our exception to mootness.
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fulfills the PSC’s statutory obligation. But Vote Solar did not seek
review of that April Order.
¶74 This hypothetical would leave us with a decision from this
court reversing the PSC’s decision on some of the inputs it would
use to calculate the ECR (or its approach to its statutory obligations)
and a subsequent, unchallenged PSC decision calculating the ECR
based on those now-reversed inputs (or the now erroneous
approach). This type of result appears to have motivated the
Legislature to only allow review of final agency action. This also
exemplifies why the Union Pacific test considers the real-world
impact of a challenge to help decide whether an order constitutes
final agency action.
¶75 Vote Solar’s petition for review of the December Order also
creates the potential for disrupting the orderly decision-making
process by limiting the options available to the PSC on
reconsideration. If Vote Solar is right, and the December Order is
reviewable as final agency action, the PSC would lose the ability to
revisit any of the ECR components that it deemed final, even while it
reconsiders other components of that same calculation. This is
because the PSC would lose jurisdiction over any issue on review.
So, while the PSC reconsidered the inputs to the ECR, it would be
unable to revisit its previous decisions on those inputs even if it
received testimony or evidence that prompted the need to go back
and adjust them. This disruption to the process is avoided if we
recognize that the December Order decisions on fulfilling the Net
Metering Statute, using only cost-of-service costs and benefits, and
adding integration costs to the ECR were non-final agency action. 12
III. THE DECEMBER ORDER CONSTITUTES FINAL AGENCY
ACTION ON THE ECR OPERATION DECISIONS
¶76 In contrast to the ECR Calculation Decisions, the ECR
Operation Decisions embody the PSC’s final action on those issues.
To start, the PSC’s decisions to have ECR credits expire annually and
to have the ECR calculation itself be updated annually were not
“preliminary, preparatory, procedural, or intermediate with regard
_____________________________________________________________
12 The OCS does not contest that the December Order meets the
second prong of the Union Pacific test—that rights or obligations
were determined by, or legal consequences flowed from, the Order.
Since it is conceded and unbriefed, we express no view on the
correctness of the assertion.
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Opinion of the Court
to subsequent agency action.” See Union Pac. R.R. Co. v. Utah State
Tax Comm’n, 2000 UT 40, ¶ 16, 999 P.2d 17. Neither of these decisions
played any role in calculating the ECR in the April Order. Those
decisions would apply the same to whatever the PSC decided with
respect to the ECR Calculation Decisions. Thus, they were not
intermediate, preliminary, or preparatory to any subsequent PSC
action.
¶77 Nor will our review of those decisions create the potential to
“disrupt the orderly process of adjudication.” See id. We can
determine if the PSC correctly decided whether to have the ECR
credits expire annually and whether to update the ECR annually
without impacting the ECR that the April Order set. Stated
differently, the decision to have the credits expire would apply the
same to whatever size credit rate the PSC’s April Order set. Ditto the
PSC’s decision to reevaluate that credit rate every year.
¶78 Moreover, there is no evidence in the record before us that
the PSC might have needed the ability to revisit the ECR Operation
Decisions when it reheard questions about the ECR’s calculation. On
this record, we can conclude that we can hear the ECR Calculation
Decisions without compromising the PSC’s ability to decide the
remaining issues or risking the possibility of competing and
contradictory orders. The ECR Operation Decisions constitute final
agency action under the Union Pacific framework.13
¶79 Because we have final agency action on the ECR Operation
Decisions, we have jurisdiction to address the substance of Vote
Solar’s challenges.
_____________________________________________________________
13 Let us be the first to recognize that our decision is unsatisfying
because the Union Pacific test, as we apply it to the PSC’s decisions
here, requires parties to have a surplus of confidence in their ability
to correctly analyze whether something is final agency action.
Whether the result we reach is influenced by OCS conceding the
second Union Pacific inquiry, a clunky Union Pacific test, or a need to
have the Legislature define “final agency action” might be up for
debate. But what could be beyond dispute is that our statute and
current test fail to give us the certainty that we strive for in other
rules governing the finality of orders and judgments. See, e.g., UTAH
R. APP. P. 4; UTAH R. CIV. P. 58A. We can anticipate that a future
party might ask us to abandon or refine the Union Pacific test or ask
the Legislature to better define “final agency action.”
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IV. SUBSTANTIAL EVIDENCE SUPPORTS THE PSC’S DECISION
TO ANNUALLY UPDATE THE ECR
¶80 Vote Solar argues that we should reverse the PSC’s decision
to annually update the ECR. Vote Solar’s challenge on this issue
presents two sub-issues: (1) whether Customer Generators and other
non-power-generating residential customers constitute different
classes of customers and (2) whether the ECR should update
annually. Vote Solar first argues that the PSC is required to charge
similarly situated customers the same rate unless there is substantial
evidence of differences that necessitate a diverging rate. Vote Solar
contends that the PSC violated this principle by treating Customer
Generators differently than other ratepayers when it ordered an
annual update to the ECR. Vote Solar further asserts that the PSC’s
determination that Customer Generators are not similarly situated to
other ratepayers is not supported by substantial evidence. 14
¶81 On the first sub-issue, the PSC does not contest the legal
premise that it cannot treat similarly situated customers differently
but contends that Customer Generators are not similarly situated to
other ratepayers. 15
¶82 As an initial matter, we agree with the parties that the basic
legal principle is not in dispute. Utah Code section 54-3-8(1)(b)
forbids the PSC from creating “unreasonable difference[s] as to rates
. . . between classes of service.” We discussed this principle in
Mountain States Legal Foundation v. Utah Public Service Commission,
636 P.2d 1047 (Utah 1981). In Mountain States, Utah Power & Light
Company created a discounted “senior citizen rate” for heads of
household over the age of sixty-five. Id. at 1050. We stated that it “is
_____________________________________________________________
14 Most of the time, Vote Solar frames its argument in terms of the
PSC’s decisions lacking substantial evidence. At a few points in its
brief, Vote Solar parrots the Administrative Procedure Act’s
language and calls the decisions “arbitrary, capricious, and lacking
substantial evidence.” (Citing UTAH CODE § 63G-4-403(4).) Because
the substance of Vote Solar’s arguments focuses on the evidence
underlying the decisions, we stick with that framing.
15 The PSC and RMP additionally argue that, contrary to Vote
Solar’s contention, non-power-generating residential customers are
also subject to annually updating rates. Because we dispose of Vote
Solar’s argument on other grounds, we need not reach the substance
of that argument.
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VOTE SOLAR v. PUBLIC SERVICE COMMISSION
Opinion of the Court
axiomatic in rate making that utilities are barred from treating
persons similarly situated in a dissimilar fashion,” and we struck the
preferred rate for seniors. Id. at 1052, 1057–58.
¶83 We did not hold that the PSC is powerless to recognize that
certain of its constituents can be grouped into categories. To the
contrary, we stated that “[r]easonable classifications between
consumers may be made, but there must be adequate findings of
fact, supported by evidence, which demonstrate a rational basis for
the classification.” Id. at 1052.
¶84 Vote Solar nevertheless argues that the PSC must require
RMP to treat Customer Generators the same as other customers
when it comes to annually updating their rates because there is not
substantial evidence supporting a decision to treat the two groups
differently.
¶85 This presents a fact-like mixed question that we review
deferentially. 16 See Randolph v. State, 2022 UT 34, ¶ 24, 515 P.3d 444.
Such questions generally arise when “application of a legal concept
is highly fact dependent and variable. Or when the factual scenarios
presented are so complex and varying that no rule adequately
addressing the relevance of all these facts can be spelled out.” Id.(cleaned up).
¶86 Although the Administrative Procedures Act does not give
us the standard of review, it defines the deference we provide to an
agency’s factual findings. See UTAH CODE § 63G-4-403(4)(g). We look
to see if there is substantial evidence to support the agency’s
decision. See id. “A decision is supported by substantial evidence if
there is a quantum and quality of relevant evidence that is adequate
to convince a reasonable mind to support a conclusion.” Provo City v.
Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242 (cleaned up).
¶87 The problem Vote Solar faces is that ample evidence existed
to permit the PSC to conclude that Customer Generators are not
similarly situated to other customers. The PSC pointed out in its
October Order that “[ECR] updates [do] not directly impact the rates
an RMP customer pays for electricity.” The PSC also noted that if
_____________________________________________________________
16 The Administrative Procedures Act does “not expressly
mandate” the standard of review to use in this circumstance, so we
revert to our traditional standard of review. Murray v. Utah Labor
Comm’n, 2013 UT 38, ¶ 18, 308 P.3d 461; see also UTAH CODE § 63G-4-
403.
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Customer Generators wanted a fixed long-term rate in exchange for
solar power, they could become a commercial generator under
Schedule 37, an option that is not available to customers who do not
sell energy to RMP. Moreover, multiple experts testified that
updating the ECR annually could ensure costs would not be shifted
onto non-power-generating residential RMP customers.
¶88 Simply stated, the evidence before the PSC allowed it to find
that there is a difference between a group of customers who buy
power and a group of customers who both buy and sell power.
¶89 Vote Solar additionally contends that the PSC’s finding that
the ECR should be updated annually is unsupported by substantial
evidence. This sub-issue presents a question of fact, and, as
explained above, we review an agency’s factual findings for
substantial evidence. See UTAH CODE § 63G-4-403(4)(g).
¶90 The PSC points to evidence before it that annually updating
the ECR would “introduce volatility and uncertainty” into the
returns on solar panel procurement and thus disincentivize
investment. Vote Solar makes a compelling case that there was
evidence before the PSC that might have supported a different
conclusion.
¶91 But that is not the test to set aside the PSC’s factual findings.
When we conduct a “substantial evidence review, we do not reweigh
the evidence and independently choose which inferences we find to
be the most reasonable.” Provo City v. Utah Labor Comm’n, 2015 UT
32, ¶ 8 (cleaned up). Rather, “we defer to an administrative agency’s
findings because when reasonably conflicting views arise, it is the
agency’s province to draw inferences and resolve these conflicts.” Id.(cleaned up).
¶92 Here, the PSC relied on evidence from multiple experts that
failure to update the ECR annually would risk imposing higher rates
on non-Customer Generators. Robert Meredith, the Director of
Pricing and Cost of Service at PacifiCorp, RMP’s parent company,
testified that updating the ECR annually would ensure that the
program’s costs would not shift onto customers who did not sell
power back to RMP. Another RMP witness, Daniel MacNeill,
similarly testified that if the PSC did not regularly update the ECR,
ratepayers who did not participate in the program would pay higher
rates. MacNeill also posited that annual updates would best ensure
the ECR’s continued accuracy.
¶93 Vote Solar has demonstrated that there was conflicting
evidence before the PSC. Vote Solar has not, as it must to prevail,
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VOTE SOLAR v. PUBLIC SERVICE COMMISSION
Opinion of the Court
demonstrated that the PSC’s decision was not supported by
substantial evidence. We affirm the PSC’s decision to update the
ECR annually.
V. VOTE SOLAR HAS NOT SHOWN THAT THE PSC’S DECISION
TO HAVE ECR CREDITS EXPIRE ANNUALLY WAS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE
¶94 Vote Solar asserts that the PSC’s decision to allow ECR
credits to expire annually was not supported by substantial
evidence. Vote Solar argues that the PSC’s only justification for
annual expiration was to prevent “oversizing”—i.e., Customer
Generators purchasing generating systems far beyond their needs in
hopes of not just offsetting their own electric use but also making
money selling power to RMP. Vote Solar further argues that this
conclusion was faulty because the record does not support a
conclusion that allowing credits to roll over from year to year would
incentivize Customer Generators to oversize.
¶95 It bears noting, as the PSC did, that annual expiration of
credits existed under the prior net metering program. The PSC
nevertheless recognized that there was a legitimate policy question
concerning credit expiration. The PSC stated that “the ECR should”
disincentivize oversizing.
¶96 But the PSC did not, as Vote Solar claims, find that annual
expiry was necessary to prevent oversizing. Rather, the PSC
concluded that it had two options: “(1) continue annual expiration
. . . and consider later whether the data . . . warrant elimination of the
expiration” or “(2) eliminate annual expiration now and re-
implement it if the empirical data warrant that action.”
¶97 The PSC chose the first option because, as it explained in the
December Order, it concluded that was “more in the public interest
and less likely to result in unexpected disruptions to” Customer
Generators. Vote Solar does not mount a direct challenge to this
conclusion.
¶98 We reverse an agency’s factual findings if they are not
supported by substantial evidence. See UTAH CODE § 63G-4-403(4)(g).
Since Vote Solar has not directly addressed the PSC’s wait-and-see
approach that continued the practice of annual credit expiration that
had been the practice for years, we are not well positioned to say
there was not substantial evidence supporting the PSC’s decision.
We therefore affirm the PSC’s decision that ECR credits will expire
annually.
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CONCLUSION
¶99 The December Order from which Vote Solar seeks review
addressed a variety of issues with respect to the creation and
calculation of an ECR. That order did not constitute “final agency
action” within the meaning of the Utah Administrative Procedures
Act with respect to the ECR Calculation Decisions. This means we
lack jurisdiction to hear Vote Solar’s challenges concerning the PSC’s
statutory burden to analyze the costs and benefits of net metering,
the PSC’s decision to only analyze cost-of-service costs and benefits
when it created the ECR, and the PSC’s decision that integration
costs should be included in the ECR calculation. We therefore lack
jurisdiction over Vote Solar’s petition for review as to these issues
and dismiss.
¶100 The December Order was “final agency action” with respect
to the ECR Operation Decisions. This means we have jurisdiction to
hear Vote Solar’s challenges to the decision to annually update the
ECR and the decision to have unused credits expire annually. But we
hold that the PSC had substantial evidence before it to support those
decisions. We affirm.
25