Docket No. EL24-54-000
I concur with the Commission’s determination not to initiate an enforcement action in this case but write separately in an effort to clarify a portion of the jurisdictional dispute between the parties. Petitioners contend that this case is subject to federal court jurisdiction,[1] whereas protesters contend that the matter belongs in state court.[2] That question turns on whether the facility at issue is entitled to the protections under Public Utility Regulatory Policies Act (PURPA)[3], and whether this is a challenge to the Salt River Project Agricultural Improvement and Power District (SRP)’s implementation of PURPA, or whether it is an “as-applied” claim “regarding the application of [SRP’s] implementations to [the] individual parties” in this case.[4]
To be clear, however, the mere fact that residential customers with rooftop solar are the entities making a claim does not render this dispute state jurisdictional. While states and relevant non-jurisdictional entities such as SRP have retail rate authority, PURPA provides for federal jurisdiction over a utility or retail authority’s implementation of PURPA’s obligation to purchase from and sell to Qualifying Facilities.[5] Further, it is clear that behind-the-meter rooftop solar arrays owned or leased by residential customers can be qualifying facilities. 18 C.F.R. § 292.203 provides the criteria that a facility must meet to be a qualifying facility,[6] and exempts “[a]ny facility with a net power production capacity of 1 MW or less” from the requirement to file a Form No. 556 to be considered a qualifying facility.[7] Thus PURPA necessarily implicates rates that utilities charge to residential customers, and “bars the utility from charging [a] home or business different rates than it would any other customer or supplier.”[8] And claims concerning such rates are not automatically considered “as applied” challenges. Rather, as both Petitioners and the National Association of Regulatory Utility Commissioners (NARUC) acknowledge, “[a]n implementation challenge considers whether a state agency or nonregulated utility failed to implement a FERC rule promulgated pursuant to PURPA,” whereas
“[a]n as-applied claim argues that the state or utility implementation of such rule is unlawful as it applies to or affects individual parties.”[9]
For these reasons, I respectfully concur.
[1] 16 U.S.C. §§ 825(a)-(b) (directing the Commission to provide “such rules as it determines necessary to encourage [Qualifying Facilities].”
[2] 16 U.S.C. §824(e)-3(f) (directing state commission compliance with PURPA by implementing the rules adopted by the Commission and a state may take action under PURPA only to the extent that that action is in accordance with the Commission’s rules); accord FERC v. Mississippi, 456 U.S. 742, 751 (1982); Indep. Energy Producers Assoc. v. CA Pub. Util. Comm., 36 F.3d 848, 856 (9th Cir. 1994); Cogeneration Coalition of America, Inc., 61 FERC ¶ 61,252 at 61,925-6 (1992); Final Rule Regarding the Implementation of Section 210 of the Public Utility Regulatory Policies Act of 1978, Order No. 69, FERC Stats. & Regs. ¶ 30,128 at 30,864, order on reh’g, Order No. 69-A, FERC Stats. & Regs. ¶ 30,160 (1980), aff’d in part & vacated in part on other grounds sub nom. Am. Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 (D.C. Cir. 1982), rev’d in part on other grounds sub nom. Am. Paper Inst. v. Am. Elec. Power Serv. Corp., 461 U.S. 402 (1983).
[3] 16 U.S.C. § 824a-3.
[4] Vote Solar v. City of Farmington, 2 F.4th 1285, 1286 (10th Cir. 2021).
[5] See 18 C.F.R. § 292.303(a) and (b) (setting forth the obligation to purchase and obligation to sell), and 16 U.S.C. § 824a-3(g) and (h); Vote Solar v. City of Farmington, 2 F.4th at 1287-88 (providing background on the distinction between “as-implemented” and “as applied” challenges).
[6] 18 C.F.R. § 292.203(a).
[7] Revisions to Form, Procs., & Criteria for Certification of Qualifying Facility Status for Small Power Prod. or Cogeneration Facility, Order No. 732, 130 FERC ¶ 61,214, at 15 and 37 (2010) (“In exempting smaller generating facilities from the requirement to file a Form 556 in order to obtain QF status, the Commission is simply reverting, for these 1 MW and below facilities only, back to the policy that existed prior to Order No. 671, where QF status did not depend on such a filing. At that time, a facility’s QF status was dependent only on whether the facility met the technical criteria for QF status.”). Solar facilities that meet the criteria for small power production facilities contained in §292-203 are eligible for QF status, however PURPA does not require solar facilities to be QFs.
[8] Vote Solar v. City of Farmington, 2 F.4th at 1287.
[9] NARUC Motion to Intervene Out of Time and Motion to Dismiss at 3; Petitioner Answer at 4; see also Vote Solar v. City of Farmington, 2 F.4th at 1287-90 (discussing the distinction between each type of challenge).