and Submitted February 13, 2019 San Francisco, California
from the United States District Court for the Northern
District of California James Donato, District Judge,
Presiding No. 3:13-cv-04934-JD.
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.
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.
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
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
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.
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