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Federal Energy Regulatory Commission

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Commissioner Tony Clark Statement
November 20, 2012
Docket Nos. EL12-108-000, QF11-46-001, QF11-47-001 & QF11-48-001

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Murphy Flat and PURPA

“Contrary to longstanding policy, in this order the Commission decides to exercise its enforcement authority against a state regulatory commission.

    "The Commission’s established policy is to leave to state regulatory authorities or non-regulated electric utilities and to appropriate judicial fora issues relating to the specific application of PURPA requirements to the circumstances of individual QFs"

“The instant case comes on the heels of two other cases dealing with similar factual situations where the Commission made a legal determination but declined to enforce PURPA by its own action.  It is important to note, when the Commission declines to enforce PURPA, the entity petitioning the Commission has access to federal courts to pursue its own enforcement efforts. In this order, the Commission has chosen to expend federal resources to enforce the claims of a single wind developer. I would prefer to follow long standing policy: the Commission makes a legal determination but then allows the developer to fight its own fight, rather than the Commission initiating judicial proceedings on a developer’s behalf against a state commission that is attempting to carry out its mandate to protect its consumers. While PURPA establishes certain legal requirements, this Commission has discretion over initiating enforcement actions and we should use that discretion prudently.

“More broadly, while PURPA was designed as a foot in the door for emerging renewable resources and small generators, I sympathize with concerns that PURPA is increasingly being used as a cudgel that could force consumers to bear undue burdens. For all of the positive attributes of renewable resources, the PURPA construct itself creates a challenge for states charged with balancing the integration of variable resources with the needs of end use consumers.  Given that context, it seems unwise for the Commission to now reverse course without defining some set of limiting principles by which it will decline future entreaties to become enmeshed in cases that, whatever their legal merits, may not ultimately benefit consumers.

“The Commission's decision seems to be mostly an act of exasperation at a string of cases within a single state, but exasperation alone is not a rationale for abandoning a sound Commission practice. In sum, this action may be within the Commission's legal discretion, but that does not necessarily make it advisable. The Commission has now put itself in an awkward position. It will invoke the power of the federal government to proactively champion a private interest that may contradict the best interests of the consumers of a state.

“Accordingly, I respectfully dissent.”