With the holidays behind us and the cheer and reverie of the New Year trailing off, wind developers in Idaho may be realizing that the Federal Energy Regulatory Commission (FERC) left a lump of coal in their stockings on Christmas Eve. On December 24, FERC agreed to dismiss an historic legal action that it had taken to enforce the Public Utility Regulatory Policies Act of 1978 (PURPA) against the Idaho Public Utilities Commission (IPUC) on behalf of Qualifying Facility (QF) wind developers who have been beaten up by numerous decisions coming out of the state agency over the past several years. FERC had never before sought to enforce PURPA against a state agency, but the IPUC apparently found FERC’s tipping point.
In exchange for its agreement to dismiss this first-of-its-kind action, FERC extracted a simple acknowledgement of questionable value from the IPUC: “The Idaho PUC acknowledges that a legally enforceable obligation may be incurred prior to the formal memorialization of a contract to writing.” And that is as far as their substantive agreement goes. In other words, the IPUC acknowledges that a hypothetical situation may occur, without agreeing to the all-important question of when that situation does occur. The agreement signals an apparent policy change at FERC, and it also leaves QF wind developers on their own, once again, to enforce PURPA in protracted litigation in federal court, i.e., without a viable option.
For those keeping score, there was none in this dispute: FERC threw in the towel before the first bell.