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The Solar Energy Industries Association (SEIA) petitioned the Ninth Circuit Court of Appeals in September to examine FERC Order No. 872, which improperly inhibits the establishment of qualifying facilities (QF) under the Public Utility Regulatory Policies Act (PURPA).

The order eliminates QFs’ ability to establish long-term, fixed-rate contracts and arbitrarily expands the “one-mile rule”. This was by generating many additional conditions that stymie solar development. These practices are illegal and obviously contravene the objective of the PURPA legislation.

Following is a statement by Abigail Ross Hopper, president, and CEO of the Solar Energy Industries Association (SEIA):

“This attack on PURPA is an attack on competition. FERC Order No. 872 very clearly contradicts existing law and protects the interests of incumbent utilities at the expense of regular customers. However, the changes FERC approved will discourage QF development. It allowed utilities to bypass one of the only tools we have to increase competition in territory dominated by monopoly utilities. We are asking the court to invalidate Order No. 872.

“PURPA is a significant driver of solar jobs and investment. It is responsible for bringing utility-scale solar online around the country. FERC Order No. 872 threatens progress for solar energy at a time our nation can least afford it. Under SEIA’s Solar+ Decade goals, solar energy will supply 20% of all electricity generation by 2030. Moreover, they will add hundreds of thousands of jobs and billions of dollars in investment, all while addressing our growing climate crisis.”

Apart from that petition, the Montana Environmental Information Center, together with nine other solar and advocacy groups, have filed a federal court challenge against the Federal Energy Regulatory Commission’s (FERC) recent PURPA regulations, which they claim “effectively guts” the law’s application.

The lawsuit, filed in the United States Court of Appeals for the Ninth Circuit, challenges what the petitioners describe “four illegal components” of FERC’s regulations that “beyond the agency’s authority and conflict” with Congress’s goals:

  1. The FERC failed to complete an environmental impact analysis. This would have demonstrated that restrictions “undermining renewable energy development” would have a major environmental impact.
  2. That FERC “invented a new effective cap on generation held by the same company across a wide region”. “contrary to the restricted authority provided” to evaluate whether facilities are at the same site and thus subject to PURPA’s 80 MW size limit.”
  3. That FERC removed the power of developers of PURPA “qualifying facilities” to set a long-term price for their energy at the time of contract formation. However, this was a step that eliminates project financing choices and “conflicts with Congress’s purposes.”
  4. The duty of calculating a utility’s saved costs, on which reimbursement under PURPA predicates. Moreover, it was moved from the state regulator to the developer of a qualifying facility by FERC “illegally.”

Moreover, the petition by the solar and environmental groups requested the court to “vacate” FERC’s regulatory order, or to rescind the regulations.

What is FERC’s PURPA?

The Public Utility Regulatory Policies Act (PURPA, Pub.L. 95–617, 92 Stat. 3117, enacted November 9, 1978) is a United States Act passed as part of the National Energy Act. It had to promote energy conservation (reduce demand) and promote greater use of domestic energy and renewable energy (increase supply). Moreover, the law was made in response to the 1973 energy crisis. Moreover, one year in advance of a second energy crisis. Upon entering the White House, President Jimmy Carter made energy policy a top priority. However, the law started the energy industry on the road to restructuring.

The law requires FERC to implement regulations that encourage the development of QFs, which are often small power generators. However, the Electric Power Supply Association, SEIA, and others argue that FERC’s latest ruling defies federal law by allowing states. This was to eliminate provisions that showed to help encourage QF deployment and development.

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