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Winding Creek Solar LLC v. Peterman

United States Court of Appeals, Ninth Circuit

July 29, 2019

Winding Creek Solar LLC, Plaintiff-Appellant/ Cross-Appellee,
v.
Carla Peterman; Martha Guzman Aceves; Liane Randolph; Clifford Rechtschaffen; Michael Picker, in their official capacities as Commissioners of the California Public Utilities Commission, Defendants-Appellees/ Cross-Appellants.

          Argued and Submitted February 13, 2019 San Francisco, California

          Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding No. 3:13-cv-04934-JD.

          Eric Lee Christensen (argued), Beveridge & Diamond, Seattle, Washington; Thomas Melone, Allco Renewable Energy Ltd., New York, New York; for Plaintiff-Appellant.

          Christine Jun Hammond (argued), Pouneh Ghaffarian, and Arocles Aguilar, California Public Utilities Commission, San Francisco, California, for Defendants-Appellees.

          David Bender, Earthjustice, Madison, Wisconsin, for Amici Curiae Montana Environmental Information Center, Idaho Conservation League, and Vote Solar.

          Gregory M. Adams, Richardson Adams PLLC, Boise, Idaho; Irion Sanger, Sanger Law PC, Portland, Oregon; for Amici Curiae Community Renewable Energy Association, and Northwest and Intermountain Power Producers Coalition.

          Before: M. Margaret McKeown, William A. Fletcher, and Mary H. Murguia, Circuit Judges.

         SUMMARY[*]

         Public Utilities

         The panel affirmed the district court's judgment after a bench trial and summary judgment in favor of the plaintiff in an action brought under the Public Utility Regulatory Policies Act against Commissioners of the California Public Utilities Commission.

         PURPA requires electric utilities to buy all the power produced by alternative energy generators known as Qualifying Cogeneration Facilities ("QFs") and to pay the same rate they would have if they had obtained that energy from a source other than the QFs. QFs are guaranteed their choice of this "avoided cost" rate as calculated either at the time of contracting or the time of delivery. Plaintiff was a QF that wanted to develop a solar generating facility in California.

         To regulate the terms under which electric utilities purchase power from QFs, the CPUC established the Renewable Market Adjusting Tariff ("Re-MAT") program. The panel held that Re-MAT violated PURPA's requirements because it capped the amount of energy utilities were required to purchase from QFs and because it set a market-based rate, rather than one based on the utilities' avoided cost. California did not offer a PURPA-compliant alternative. The panel held that, with no PURPA-compliant program available, PURPA preempted Re-MAT.

         The panel further held that the district court did not abuse its discretion to fashion equitable relief when it declined to award plaintiff its preferred remedy of a particular contract.

          OPINION

          ...


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