On November 1, 2016, FERC dismissed a complaint filed by the Vote Solar Initiative and the Montana Environmental Information Center (collectively, “Vote Solar”) against the Montana Public Service Commission (“Montana Commission”) alleging that the Montana Commission violated section 210 of the Public Utilities Regulatory Policies Act of 1978 (“PURPA”) by suspending NorthWestern Energy’s (“NorthWestern”) obligation to adhere to a standard rate for solar qualifying facilities (“QFs”) with a nameplate capacity between 100 kW and 3 MW. FERC dismissed the complaint on the grounds that: (i) it does not have jurisdiction to order the Montana Commission to take or not take particular actions; and (ii) Vote Solar is neither a QF nor an electric utility, and therefore is not permitted to file a petition for enforcement pursuant to section 210 of PURPA.
In its September 19, 2016 complaint, Vote Solar alleged that the Montana Commission suspended NorthWestern’s obligation to adhere to the standard rate set for solar QFs with a nameplate capacity between 100 kW and 3 MW, thereby extinguishing legally-enforceable obligations to which these solar QFs were entitled under PURPA, and denying them opportunities to create future obligations. Vote Solar requested, among other things, that FERC: (i) invalidate the two notices suspending the standard rate, on the grounds that such suspension violates PURPA; and (ii) reinstate the standard rate originally approved by the Montana Commission in 2013 and reapproved in 2015.
In its November 1, 2016 order dismissing the complaint, FERC noted that section 306 of the Federal Power Act (“FPA”) only allows complaints against “any licensee, transmitting utility, or public utility” and then only for “anything done or omitted to be done . . . in contravention of the provisions of [the Federal Power] Act.” The Commission found that the Montana Commission is neither a licensee, transmitting utility, nor a public utility, and therefore cannot be subject to a complaint under FPA section 306. Additionally, FERC stated that section 210 of PURPA provides that, for purposes of enforcement of PURPA, the rules adopted by FERC pursuant to PURPA are treated as rules enforceable under the FPA, and enforcement of the FPA in this context is a matter within the exclusive jurisdiction of federal district courts. Lastly, FERC found that Vote Solar is not authorized to file a petition with FERC for enforcement of PURPA, because section 210 of PURPA only permits such petitions from an “electric utility, qualifying cogenerator, or qualifying small power producer.” Vote Solar does not fall into any of these statutory classifications. As a result, FERC dismissed Vote Solar’s complaint.
A copy of the November 1, 2016 order may be found here.