Vote Solar v. PSC

ORIGIMAL 10/06/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 19-0223
DA 19-0223
VOTE SOLAR,MONTANA ENVIRONMENTAL
INFORMATION CENTER,and CYPRESS CREEK
RENEWABLES,LLC,
Plaintiffs and Appellees,
and
FILED
OCT 0 6 2020
WINDATA,LLC, Bowen Greenvvooci
Supreme Court
Clerk of
State of Montana
Plaintiff-Intervener and Appellee,
v.
THE MONTANA DEPARTMENT OF
ORDER
PUBLIC SERVICE REGULATION,
MONTANA PUBLIC SERVICE COMMISSION,
Defendant and Cross-Appellant,
NORTHWESTERN CORPORATION,
d/b/a NORTHWESTERN ENERGY,
Defendant and Appellant,
and
THE MONTANA CONSUMER COUNSEL,
Defendant-Intervener.
On September 9, 2020, Appellant NorthWestern Energy and Intervenor Montana
Consumer Council filed a Joint Petition for Rehearing in the above-entitled matter.
Appellee WINData and Appellees Vote Solar, Montana Environmental Information
Center, and Cypress Creek Renewables filed responses objecting to the petition.
This Court generally will grant rehearing on appeal only if our initial decision
overlooked some fact material to the decision, overlooked a question presented that would
have proven decisive to the case, or if the decision conflicts with a statute or controlling
decision not addressed by the Court. M.R. App.P. 20(1)(a).
Having fiilly considered the parties' positions, we conclude rehearing is not
warranted under the standards ofM.R.App.20(1)(a). However,in reviewing our Opinion
while considering this Petition, we determined that clarification ofspecific portions ofthat
Opinion is warranted. We will therefore issue an Amended Opinion with the following
revisions to n 15, 16,42,45, and 70:
¶ 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.
• In 2014, the PSC approved NorthWestern's proposal to collect through
customer rates the avoided-carbon costs associated with its purchase and
operation of hydroelectricafacilities.
¶ 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.
¶ 42:
• 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 Qfs 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."
¶ 45:
• And, given that NorthWestern's hydro facilities, as well as other wind
QFs enjoy a carbon adder in its their avoided-cost rates or the equivalent
rate base amount, to exclude carbon costs from the avoided-cost rate
exelusively for Selilf QFs, particularly given greatly reduced
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maximum-length contracts, is discriminatory to SO QFs and in
violation ofPURPA. 16 U.S.C. § 824a-3(b).
¶ 70:
• 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.
IT IS HEREBY ORDERED that the petition for rehearing is DENIED.
IT IS FURTHER ORDERED that an Amended Opinion is issued herewith.
The Clerk is directed to provide a copy ofthis Order to all counsel of record.
DATED this to day of October, 2020.
Chief Justice
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1 .A.
SU 4iL
Justices
Justice Beth Baker, concurring and dissenting.
I would deny rehearing of the jurisdictional and carbon-adder issues. I also disagree with
the PSC that the Court's Opinion prevents the Commission from establishing separate
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avoided energy and capacity costs with the proxy method in future dockets, and I would
not grant rehearing on that point. I would grant rehearing, however, for the purpose of
remanding to the PSC to reconsider its application and explanation of the SPP planning
criteria and appropriate contract length in light ofthe deficiencies identified in the Opinion.
I also would clarify, as pointed out in my special concurrence, that the Court does not
affirm the District Court's findings in their entirety or the relief ordered, but does affirm
its decision to vacate the PSC's symmetry finding.
Justice
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