BEFORE THE PUBLIC UTILITY COMMISSION OF OREGON AR 603
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1 BEFORE THE PUBLIC UTILITY COMMISSION OF OREGON AR 603 In the Matter of Rulemaking to Implement Community Solar Provisions of SB Comments of Renewable Northwest, Oregon Solar Energy Industries Association, NW Energy Coalition, and Northwest Sustainable Energy for Economic Development I. Introduction Renewable Northwest, the Oregon Solar Energy Industries Association ( OSEIA ), NW Energy Coalition, and Northwest Sustainable Energy for Economic Development ( Northwest SEED ) (collectively, the Joint Parties ) thank the Oregon Public Utility Commission Staff ( Staff ) and the Oregon Department of Justice ( DOJ ) for this opportunity to comment on the legal issues that may affect the development of Oregon s first Community Solar Program ( CSP ). In these comments, we first outline our support for a CSP design based on a net metering framework because such a design best harmonizes with the language in Senate Bill 1547 of 2015 ( SB 1547 ) while also addressing preemption concerns and likely avoiding potential issues with securities law. We then provide our recommendations on the location of community solar projects. Finally, we explain why Section 22, Subsection 5(b), of SB 1547 mandates the donation of individual participants excess generation, as opposed to donation of the unsubscribed portion of community solar projects. The Joint Parties have a wealth of knowledge on issues relevant to the design of community solar projects. Renewable Northwest is a non-profit advocacy organization that works to facilitate the expansion of responsibly developed renewable resources in the Northwest. OSEIA is a trade association that promotes and advances solar energy utilization and commercialization through education and advocacy, ensuring that solar energy plays a significant role in Oregon s renewable energy portfolio and making the Oregon solar energy industry nationally competitive. The NW Energy Coalition is an alliance of about 100 environmental, civic, and human service organizations, progressive utilities, and businesses in the Northwest that promotes development of renewable energy and energy conservation, consumer protection, low-income energy assistance, and fish and wildlife restoration on the Columbia and Snake rivers. Northwest SEED is a regional non-profit organization with a mission of creating communities powered by locally-controlled clean energy. Collectively, the Joint Parties have a long history of participating in regulatory proceedings related to the development and integration of renewable energy projects, including dockets of particular relevance to this rulemaking, such as UM 1673, UM 1690, UM 1716, UM 1746, UM 1758, as well as a wide array of dockets related to the Public Utility Regulatory Policies Act ( PURPA ). Comments of the Joint Parties 1
2 II. A Net Metering Framework Best Addresses Preemption Concerns. In its January 26, 2017 Interoffice Memorandum to Staff ( the Memorandum ), DOJ outlined three approaches to address concerns regarding the extent of the authority of the Oregon Public Utility Commission ( OPUC or the Commission ) to determine the compensation for CSP generation. While the Federal Energy Regulatory Commission ( FERC ) has authority over wholesale sales, 1 with the exception of rates set under PURPA, states have authority over retail sales. 2 The DOJ Memorandum identifies three potential approaches to implementing the CSP in a manner that avoids preemption issues: (1) implementing the CSP under a net metering framework, relying on the OPUC s authority over retail sales; (2) implementing the CSP under a PURPA framework, relying on the OPUC s authority to set wholesale PURPA rates; and (3) designing a CSP that would have projects sell their power at market-based rates, subject to FERC jurisdiction. While we agree with the DOJ s analysis that these three approaches address concerns regarding the extent of the OPUC s authority and preemption under the Federal Power Act ( FPA ), we recommend that the OPUC implement the CSP using a net metering framework. A. Implementing the CSP under a net metering framework best balances the language in SB 1547 with other legal and policy considerations. The Joint Parties support implementing the CSP under a net metering framework because such a design best balances the language in SB 1547 with other legal and policy considerations. As noted above, a net metering framework would address preemption concerns. A community solar net metering program that compensates CSP generation at the resource value of solar energy ( RVOS ) would also address a number of other potential legal issues, as well as a number of policy issues. For example, a net metering framework best allows the Commission to implement a program that is consistent with SB 1547 while addressing the potential risk of participation in a community solar project being subject to regulation as securities. Also, a net metering approach would be simpler for and more familiar to participants, and would place the CSP in a stable state regulatory environment. Of the three approaches outlined in the Memorandum, a net metering approach best allows the OPUC to implement a CSP that is consistent with SB While SB 1547 gives the OPUC significant discretion in implementing this CSP, it also gives the OPUC specific direction with regard to a number of program features. For example, the statute specifies that utilities should credit a participant s electric bill in a manner that reflects the RVOS unless the Commission has good cause to adopt a different rate. 3 Under a net metering approach, the Commission would likely be in a better position to set a rate for the compensation of CSP generation that complies with SB 1547 by reflecting the RVOS that will emerge from Docket No. UM Implementing this CSP under a net metering framework is also consistent with language in SB 1547 that establishes features for the program similar to those in ORS , Oregon s 1 16 U.S.C. 824(b), 824d(a), 824e(a). 2 Federal Energy Regulatory Comm n v. Electric Power Supply Ass n, 136 S.Ct. 760, 766, 193 L.Ed.2d 661 (2016). 3 SB 1547, Section 22(6). Comments of the Joint Parties 2
3 Net Metering statute. For example, like Oregon s Net Metering statute, 4 SB 1547 limits individual participation in the project to a portion that does not exceed that participant s electricity consumption. 5 Also, similar to Oregon s Net Metering statute and rules, 6 SB 1547 mandates that amounts in excess of an individual participant s offer to own or subscribe to a community solar project be used in support of low-income residential customers. 7 A CSP design that follows a net metering approach would also best comply with SB 1547 s directive that the Commission adopt rules that incentivize program participation. 8 By netting against their consumption, it is our understanding that participants would avoid the potentially taxable event that could result from a buy all, sell all arrangement under the other two approaches outlined in the Memorandum. Additionally, net metering has been around in Oregon for almost two decades, so the concept of netting is likely more familiar to potential participants in this CSP. Additionally, designing this CSP under a net metering framework would allow the program to avoid the state regulatory uncertainty associated with PURPA, 9 or the rate uncertainty that would follow a wholesale approach. Regulatory and rate uncertainty would likely act as disincentives to participation. Finally, our understanding is that a community solar net metering approach would likely address any concerns about participation in a community solar project implicating securities laws and regulations. Under this framework, a participant s benefit is limited to offsetting that participant s electricity bill. The U.S. Securities and Exchange Commission has expressed that similar arrangements do not constitute securities under federal law. 10 B. PURPA avoided cost rates are an appropriate compensation mechanism for the unsubscribed portion of community solar projects. The Joint Parties support compensation of any unsubscribed power from community solar projects at PURPA avoided cost rates. The Memorandum outlines two options for compensating unsubscribed power: (1) at PURPA avoided cost rates, or (2) at market-based rates, 4 ORS (1)(d)(E) (Defining a net metering facility as a facility for the production of electrical energy that is intended primarily to offset part or all of the customer-generator s requirements for electricity. ) 5 See SB 1547, Section 22, Subsection 5(a) (Limiting a project manager s offer to a potential participant to an amount that does not exceed a potential [participant s] average annual consumption of electricity. ) 6 OAR (1) ( Any unused kilowatt-hour credit accumulated by a customergenerator of a public utility at the conclusion of the annual billing cycle will be transferred, in a manner approved by the Commission, to customers enrolled in the public utility's low-income assistance programs. ); see ORS (3)(d) (Contemplating that unused credits after the end of the netting period are granted to the utility for use in its low-income assistance program). 7 S.B. 1547, Section 22(5)(b). 8 Id., Section 22(2)(b)(A). 9 PURPA is a highly litigated area of the law. For example, we are of the following active or recent PURPA-related dockets before the OPUC: UM 1610, UM 1725, UM 1729, UM 1734, UM 1752, UM 1794, UM 1799, UM Comments of the Joint Parties 3
4 subject to FERC jurisdiction. The Joint Parties support the first approach because community solar project compensation would remain under OPUC jurisdiction. Additionally, it would be significantly less cumbersome for a community solar project to receive compensation for unsubscribed power under this approach. It is our understanding that the steps necessary to certify a project as a Qualifying Facility are significantly less cumbersome than those associated with obtaining FERC authority to sell electricity at market-based rates. As a result, we support having community solar projects receive PURPA avoided cost rates for any unsubscribed generation. III. The Commission Should Adopt Rules That Allow for the Broadest Possible Location of Community Solar Projects. In order to maximize customer participation in SB 1547 s CSP and give effect to the plain language in SB 1547 regarding project location, the Commission should endeavor to adopt rules that allow for the broadest possible location of projects. Ideally, community solar projects would be able to locate anywhere in Oregon. Not only would such an approach square with the provision in SB 1547 allowing community solar projects to be located anywhere in this state, 11 it would also address fairness concerns about the access of differently-situated utility customers to potentially higher-value solar resources. To the extent that the Commission seeks to further limit the location of community solar projects either because of concerns about the risk of a potential dormant Commerce Clause challenge or otherwise one potential approach would be to initially require that community solar projects be located in the service territory of any of the utilities serving community solar program participants. In other words, the OPUC could adopt such a footprint for the initial phase of the program and then expand it over time to other parts of the state, as the Commission deems appropriate. Such an approach would help alleviate fairness concerns by enabling PGE s westside customers to participate in a community solar project located in PacifiCorp s east-side service territory. If there is interest in such a phased approach, we recommend that it be discussed in future stakeholder workshops. IV. Subsection 5(b) Mandates the Donation of Excess Generation Associated with an Individual Participant s Portion of a Community Solar Project. Section 22, Subsection 5(b), of SB 1547 ( Subsection 5(b) ) refers to the value of the excess generation associated with an individual participant s portion of a community solar project, as opposed to the entire unsubscribed portion of a community solar project. Subsection 5(b) reads as follows: Any value associated with the generation of electricity in excess of an offer to own or subscribe to a community solar project as limited by paragraph (a) of this subsection must be used by the electric company procuring electricity from the 11 S.B. 1547, Section 22(4)(c). Comments of the Joint Parties 4
5 community solar project in support of low-income residential customers of the electric company. [12] Interpreting Subsection 5(b) requires discerning the intent of the legislature by first looking at the text and giving common words their ordinary meaning, as well as by considering the context of the subsection, including other subsections relating to the same subject. 13 That exercise supports our interpretation of Subsection 5(b). Subsection 5(b) does not address the unsubscribed portion of a community solar project. Subsection 5(b) expressly refers to the value of the generation in excess of an offer made to an individual project participant, as opposed to the unsubscribed portion of a project. An is ordinarily used to refer to an undetermined member of a class. It is used as an indefinite article before a singular noun not referring to any specific member of a class or group or referring to a member not previously mentioned. 14 If the legislature intended to address the unsubscribed portion of a project with Subsection 5(b), the legislature could have achieved that with precise wording like all offers or unsubscribed generation. Subsection 5(b) s reference to Section 22, Subsection 5(a) of SB 1547 ( Subsection 5(a) ) also weighs against an interpretation of Subsection 5(b) as applying to all of the unsubscribed generation associated with a community solar project. Under Subsection 5(a), [a] project manager may offer proportional ownership in or proportional subscriptions to a community solar project in any amount that does not exceed a potential owner s or potential subscriber s average annual consumption of electricity. Subsection 5(a) sets the limit for how much a project manager can offer an individual potential participant in a community solar project. The reference in Subsection 5(b) to that limit supports interpreting that subsection as referring to the value associated with the generation in excess of what is offered to an individual participant. The context of Subsection 5(b) also supports this interpretation since Subsection 5(a), the subsection that precedes it, and the only other subsection under the same numeral, refers to an individual participant. Therefore, interpretations of Subsection 5(b) as applying to all unsubscribed power are erroneous. V. Conclusion The Joint Parties appreciate this opportunity to comment on the legal issues that may affect the implementation of the CSP provisions in SB As stated above, we support implementing the CSP under a net metering framework, with PURPA avoided cost rates as the compensation for the generation associated with the unsubscribed portion of a community solar project. We also encourage the Commission to draft rules that allow for the broadest possible location of community solar projects, consistent with the language in SB Finally, we highlight that Subsection 5(b) refers to the value of the excess generation associated with an individual participant s portion of a community solar project, as opposed to the entire 12 Id., Section 22(5)(b) (emphasis added). 13 PGE v. Bureau of Labor and Industries, 317 Or. 606, , 859 P.2d 1143 (1993). 14 Randomhouse Webster s College Dictionary 1 (2d ed. 1997). Comments of the Joint Parties 5
6 unsubscribed portion of a community solar project. We look forward to continue actively engaging in this rulemaking. Dated March 1, /s/ Dina Dubson Kelley Dina Dubson Kelley Chief Counsel Renewable Northwest dina@renewablenw.org /s/ Jeff Bissonnette Jeff Bissonnette Executive Director Oregon Solar Energy Industries Association jeff@oseia.org /s/ Silvia Tanner Silvia Tanner Staff Counsel Renewable Northwest silvia@renewablenw.org /s/ Jaimes Valdez Jaimes Valdez Policy Manager Northwest SEED jaimes@nwseed.org /s/ Fred Heutte Fred Heutte Senior Policy Associate NW Energy Coalition fred@nwenergy.org Comments of the Joint Parties 6
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