One for the little guy
February 4th 2015
A stalled project to put 15 industrial-sized wind turbines next to the six already up and running between Choteau and Fairfield will get reconsideration before the Montana Public Service Commission on Feb. 10.
Martin Wilde of Fairfield, working through the company, Greenfield Wind L.L.C., has been in a disagreement with NorthWestern Energy since April 2014 over what the utility will pay the wind developer for each megawatt-hour generated. The cost to integrate the intermittent energy into the region’s power grid is also unsettled.
In December, both parties agreed to a price to avoid further litigation, and filed a joint motion to approve a settlement agreement with the PSC, but the commissioners denied the settlement by a 3-2 vote.
Since that time, Brad Johnson replaced Bill Gallagher on the commission. Gallagher, Roger Koopman and Kirk Bushman voted against the settlement, while Travis Kavulla and Bob Lake voted for it.
Wilde called the denial “an 11th hour surprise reversal ruling” that “appeared to result from Gallagher placing his personal opinion and politics ahead of federal and state laws and ahead of the best interests of Montana rate payers.”
The PSC has invited the parties to present oral arguments for reconsideration at its Feb. 10 meeting in Helena.
At stake is whether Teton County will see a doubling of wind generation and an additional six-figure tax bill it will pay. Wilde’s Fairfield Wind six-turbine project that cost more than $25 million will start paying taxes next November.
Greenfield Wind attorney Ryan Shaffer of Missoula stated in his written motion to reconsider that the PSC’s decision was “unlawful, unjust and unreasonable” and constitutes an unlawful discrimination against “qualifying facilities,” namely, certain types of small power generation facilities, such as those from renewable-energy sources like the wind.
According to the Edison Electric Institute, the federal Public Utility Regulatory Policies Act of 1978 (PURPA) requires electric utilities to purchase energy offered by qualifying facilities. The goal is to support the development of small, onsite renewable generation and to promote diversity of a utility’s supply portfolio.
Montana has a renewable portfolio standard that requires public utilities to obtain a percentage of their retail electricity sales from eligible renewable resources. That percentage grew to 15 percent in 2015 after starting at 5 percent in 2008.
The PURPA also requires utilities to purchase electric energy from qualifying facilities at rates that are just and reasonable to consumers and that are equal to the utility’s avoided cost, defined as the incremental energy and capacity cost the utility would have incurred generating power from its own operating plant.
The state, through the PSC, governs the process to define those rates and has set a standard rate for certain qualifying facilities, but the Greenfield Wind project does not meet the criteria for that rate.
Wilde said that Greenfield has been seeking a long-term contract under PURPA with NorthWestern since 2010. But those efforts have been stymied, Wilde said, by the PSC’s rules prohibiting such long-term contracts for projects over a three-megawatt eligibility cap for the standard rate. Greenfield would generate 25 megawatts.
The rule used to be that the standard rate would apply to facilities generating 10 megawatts or less, and Wilde’s Fairfield Wind six-turbines qualified for the standard rate by generating 10 MW.
While the two parties were far apart at first in their proposed rates for the power, Shaffer said, “Greenfield recognized that with some concessions on Greenfield’s part, the gap between the rate proposed by NorthWestern and the rate proposed by Greenfield could be largely bridged.”
The negotiated rate is $50.49 per megawatt-hour if Greenfield pays NorthWestern for integration or $53.99 per MWh if Greenfield delivers a wind-integrated product. Another stipulation calls for Greenfield to delay the commercial online date until 2016.
Back in 2011, NorthWestern was paying a weighted average cost of $60.44 per MWh for qualifying facilities.
The PSC staff recommended that the commission approve the settlement but the commission voted otherwise.
Recent case law in the state determined that rates for purchases from qualifying facilities must be based on “current avoided least cost resource data,” Shaffer said. He argued that the market prices underlying the negotiated rate and the PSC staff’s benchmarking analysis come directly from NorthWestern’s 2013 least cost plan.
Shaffer alleges that the Federal Energy Regulatory Commission found that the PSC is failing to implement federal law for projects exactly like Greenfield. His argument is tied to the PSC’s recent approval of NorthWestern’s purchase of PPL’s hydroelectric dams. That process used the same market rates for evaluating whether the hydroelectric power system was a least-cost source. The commission voted for approval of the acquisition, Shaffer said.
He said the settlement rate “would save between $5.9 and $10.6 million over the life of the project compared to the two most reasonable alternative avoided-cost benchmarks.”
Wilde said, “Rejection of the unopposed settlement unreasonably deprives NorthWestern’s customers of the benefits of these favorable rates.”
He added that Greenfield’s rates would be significantly higher if Greenfield is forced to fully litigate its claim to a “legally enforceable obligation,” which is a “must-buy” provision of PURPA.
He explained that PSC’s own rules provide that a utility shall purchase available power from any qualifying facility at either the standard rate determined by the commission to be appropriate for the utility, or at a rate which is a negotiated term of the contract between the utility and the qualifying facility.
Feb 4 2015
Greenfield Wind and Northwestern Energy file Unopposed Joint Motion to Settle Before the Montana PSC
Greenfield Wind, LLC and NorthWestern Energy presented an unopposed joint settlement to the Montana PSC for approval in November 2014, and although there was not opposition at the hearing on December 1st, the settlement was inexplicably denied in mid December by an 11th hour surprising reversal ruling.
The December 16th Decision denying the Unopposed Stipulation appeared to result from past commission chairman Gallagher, who did not attend the December hearing, placing his personal opinion and politics ahead of Federal and State law and ahead of the best interests of Montana rate payers.
In response, on January 8th, Greenfield Wind filed a Motion for Reconsideration, which is currently before the Montana Public Service Commission and presents a critical question of whether the Commission will approve of a Qualifying Facility negotiating with NorthWestern to obtain reasonable long-term avoided cost rates as directed by PURPA and supported by recent rulings from FERC and Montana State Courts, or whether the Commission will subject the parties, and quite possibly the Commission itself, to further litigation.
After eight months of work on the contested case and the settlement, the December 16th last minute reversal decision to deny the unopposed settlement was not only surprising but unlawful, unjust, and unreasonable, and should thus be reconsidered for the following reasons:
- First, the record abundantly supports a conclusion that the rates and terms contained in the Stipulation are consistent with, and likely significantly below, any reasonable current estimate of NorthWestern’s actual avoided costs. The Commission Staff’s analysis demonstrated that the Settlement rate would save between $5.9 and $10.6 million over the life of the project compared to the two most reasonable alternative avoided cost benchmarks. Rejection of the Unopposed Settlement unreasonably deprives NorthWestern’s customers of the benefits of these favorable rates.
- Second, Greenfield Wind submits that the avoided cost rates will be significantly higher if Greenfield is forced to fully litigate its claim to a legally enforceable obligation (“LEO”) at the Commission and any subsequently necessary judicial proceedings – thus subjecting NorthWestern’s customers to higher rates than those offered in the Unopposed Stipulation.
- Third, the apparent rationale for rejection of the Unopposed Stipulation rests upon unlawful discrimination against QF projects, which combined with other recent events would constitute an actionable violation of federal and state law if allowed to stand.
- Fourth, the rejection of the negotiated rate between NorthWestern and Greenfield will launch the parties and the Commission back into unnecessary and costly litigation.
If a state chooses to regulate electric utilities, it must implement the Federal Energy Regulatory Commission’s (“FERC”) regulations under the Public Utility Regulatory Policies Act of 1978 (“PURPA”) (16 USC § 824a–3(f)(1); FERC v. Mississippi, 456 U.S. 742, 751, 102 S.Ct. 2126, 2133 (1982)).
FERC’s regulations, which are adopted by ARM 38.5.1902(1), require state commissions to implement PURPA in a way that requires a utility to purchase energy and capacity from QFs at the full avoided costs of the purchasing utility (Amer. Paper Institute, Inc. v. Amer. Elect. Power Serv. Corp., 461 U.S. 402, 415-18 (1983)).
The Montana Supreme Court has explained: “PURPA requires large utilities to purchase energy from smaller qualifying facilities at rates that allow the small facilities to become and remain viable suppliers of electricity.” (Whitehall Wind, LLC v. Montana Pub. Serv. Comm’n., 355 Mont. 15, 16-17, 223 P.3d 907, 908-09 (2009)).
FERC’s regulations also permit a QF and an electric utility to enter into a contract containing agreed-to rates, terms, or conditions. 18 C.F.R. § 292.301(b). FERC has explained that “a contracted-for-rate would never exceed true avoided costs and would thus be consistent with PURPA.” (Cedar Creek Wind LLC, 137 FERC ¶ 61,006, at n. 73 (2011) (citing Order No. 69, 45 Fed. Reg. 12,214 (1980))).
This rule “recognizes that the ability of a qualifying cogenerator or small power producer to negotiate with an electric utility is buttressed by the existence of the rights and protections of [FERC’s] rules.” (45 Fed. Reg. at 12,217)
FERC has rejected state implementation schemes that stand as an impediment to such amicable contract formation (Grouse Creek Wind Park, LLC, 142 FERC ¶ 61,187, at P 40 (2013)) and some courts have reversed state commission decisions rejecting agreed-to PURPA rates (Pub. Util. Commn. Of Texas v. Gulf States Utilities Co., 809 S.W.2d 201, 208-09 (Texas 1991)).
Montana’s “mini-PURPA” further instructs the Montana PSC. It declares: “Long-term contracts for the purchase of electricity by the utility from a qualifying small power production facility must be encouraged in order to enhance the economic feasibility of qualifying small power production facilities.” (M.C.A § 69-3-604(2) (emphasis added)).
The Commission’s own rules provide, “Each utility shall purchase available power from any qualifying facility at either the standard rate determined by the commission to be appropriate for the utility, or at a rate which is a negotiated term of the contract between the utility and the qualifying facility.” (ARM 38.5.1905(2)).
However, the MPSC has also implemented a rule that requires QFs sized over 3 megawatts (“MW”) to prevail in an all-source competitive solicitation to obtain a long-term contract (ARM 38.5.1902(5)). Because NorthWestern has not been compelled to regularly hold such solicitations, FERC declared this rule constitutes a failure to implement PURPA’s bare minimum requirement to make long-term avoided cost rates available to QFs (Hydrodynamics, 146 FERC ¶ 61,193, PP 32-35 (2014)).
The Montana courts have likewise faulted the Commission for failure to provide reasonable avoided cost rates to QFs (See Whitehall Wind, LLC, 355 Mont. at 18, 223 P.3d at 909 (reversing rate determination where “the PSC’s own staff economist contradicted the PSC’s rate determination”)); (Whitehall Wind, LLC v. Montana Pub. Serv. Comm’n, Cause No. DV-03-10080, Remand Order (Mont. 5th Dist., May 21, 2014) (again reversing the MPSC’s subsequent order)).
PROCEDURAL AND FACTUAL BACKGROUND
Greenfield has been seeking a long-term contract under PURPA with NorthWestern since 2010. It has spent substantial sums of time and money to develop its wind project in reliance on federal and state law. But those efforts have been stymied since at least 2010 by the Commission’s rules prohibiting such long-term contracts for projects over the eligibility cap for standard rates and outside of the 50-MW cap for wind projects.
NorthWestern states that it filed the original Petition in this case at the PSC because the Commission has not authorized it to enter into long-term contracts outside of an all-source solicitation. In the absence of a Commission-approved methodology to calculate long-term rates for Greenfield Wind’s project, the parties engaged in extensive and costly discovery and contested proceedings over the most appropriate methodology.
Through the Commission’s proceedings and discovery processes, Greenfield was able to review NorthWestern’s data and calculations. In doing so, Greenfield recognized that with some concessions on Greenfield’s part the gap between the rate proposed by NorthWestern and the rate proposed by Greenfield could largely be bridged. Additionally, a contested transmission cost issue became moot when Gaelectric’s senior transmission requests were withdrawn and removed from the transmission queue – further bridging the gap between the parties.
Thus, Greenfield and NorthWestern were able to negotiate a rate that was derived using NorthWestern’s method of estimating the avoided costs. The net Stipulation/Settlement rate is approximately $50.49/MWh if Greenfield pays NorthWestern for integration, or $53.99/MWh if Greenfield delivers a wind integrated product. Due to NorthWestern’s near-term long position, Greenfield agreed to delay the commercial online date for the full contract rate until 2016, and will only be paid $19.99/MWh (minus integration costs) for any generation delivered in 2015.
In light of the fact that NorthWestern is a regulated utility and the Commission has approved no methodology to calculate large QF rates, such approval is necessary for the project to move forward without further delay.
On December 1, 2014, the Commission held an evidentiary hearing on the Stipulation. Multiple rounds of testimony from Greenfield and NorthWestern and all data requests were admitted into the record for purposes of evaluating the Stipulation. All of NorthWestern and Greenfield’s witnesses were made available for live or telephonic cross examination. The Montana Consumer Counsel (“MCC”) and LEO Wind, Inc. both attended the Stipulation hearing. Neither of them opposed the Stipulation or requested post-hearing briefing to challenge its terms.
On December 16, 2014, the Commission held its work session on the Stipulation.
The Commission’s Staff presented a memorandum summarizing the terms of the Stipulation, including five market benchmarks against which to compare the Stipulation rate. Each of Staff’s five benchmark rates were higher than the Greenfield Wind rate. Thus, Commission Staff recommended approval of the Stipulation.
The PSC Commission’s Staff explained: The reasons to approve, would be that the rate appears to reasonably approximate avoided costs. It would avoid expenditure of further resources by all parties, including the Commission, on this matter. It would signal that NorthWestern can negotiate with large QFs, and that the PSC will implement rates for large QFs.
In fact, the Commission’s Staff explained that its portfolio comparison benchmark analysis, using the same inputs used to model the PPL Montana Hydroelectric Projects (“PPL Hydros”), demonstrated that “having Greenfield energy as part of the portfolio saves the portfolio costs.” But the Commission voted to reject the Stipulation by vote of three to two.
Former Commissioner Gallagher, as well as Commissioners Koopman and Bushman voted against the Stipulation, while Commissioners Kavulla and Lake supported approving the settlement.
==January 12, 2015
Marty Wilde, WINData LLC
More Wind Turbines Potentially Coming to Fairfield
Posted: Jan 10, 2015 5:11 PM MST Updated: Jan 10, 2015 7:41 PM MST
On a farm in Fairfield 6 wind turbines already generate 10 megawatts, which supplies about 2,000 average residential houses annually, but developers are trying to build more of them.
“It will be 15 more turbines just like these, maybe slightly bigger,” said Marty Wilde Principal Engineer at Wind Data.
Wilde said they will add 25 megawatts of renewable energy into the Northwest Energy grid. Wind turbines currently cost about 2 million dollars a megawatt, but Wilde said there are advantages.
“The main advantage is the carbon free generation and how it addressees some of the green house gases and the climate change issues,” said Marty Wilde Principal Engineer at Wind Data.
Wind turbines in other states have killed endangered birds, but that has not been the case in Fairfield.
“Out here we haven’t had any impact and we have ongoing post construction studies,” said Marty Wilde Principal Engineer at Wind Data.
Wilde said building more turbines will bring construction jobs, more local tax dollars to the county, and money to farmers who provide the land.
“There is really no investment on our part other than having to farm around them and it creates income so for sure it helps, and that income helps the community,” said Reece Brown with K Farms
The next set of 15 wind turbines for the “Greenfield Wind Project” would be built this year and is expected to be done by this coming fall, but none of them will be built unless the Montana Public Service Commission approves it first.
“There have been a lot of challenges one again, that’s why we are so excited to be in front of the PSC like we are now looking for this approval for this next wind farm here,” said Marty Wilde Principal Engineer at Wind Data.
I just signed a letter calling on U.S. Senator Ron Wyden and Congress to renew the vital tax credit for wind and other sources of renewable energy. The Production Tax Credit (PTC) helps wind energy compete with highly subsidized fossil fuel industries, attracts investors for new wind projects, fosters innovation and employs tens of thousands of Americans in the clean energy economy.
Because of wind energy’s growing success, dirty energy billionaires, like the Koch brothers, campaigned to kill the renewable energy credit program. Congress is at a crossroads.
Will they support policies and industries that increase carbon pollution, fueling climate-related disasters? Or will they take action to promote safe, clean energy that will allow us to stabilize the climate?
As incoming Chairman of the Finance Committee, Senator Wyden will play a major role in deciding which direction Congress goes.
Please join me in telling Senator Wyden to renew the renewable energy tax credit now: http://act.engagementlab.org/sign/wind-credit_Wyden/?referring_akid=.227975.zAnFDm&source=taf
By signing the letter, you will send a message the future of our kids and and the stability of our climate are priorities that deserve urgent attention. Thank you for taking action!
PLEASE SIGN THE PETITION via Climate Parents | Senator Wyden: Restore support for wind power!.
A few years ago, Apple sold me a $4,000 computer with a defective graphics chip/logic board. The defective part was the Nvidia 8600M GT GPU, and when it was discovered that the machine was defective, Apple refused to take it back and issue me a refund. Instead, they promised to replace the 8600M GT boards when they failed, up to 4 years from the date of purchase.
Three years later, the board failed, and predictably, Apple refused to replace it. Instead, they used the fact that the machine wouldn’t boot (due to the failed logic board) to deny the repair. Not only that, but in addition, they tried to charge me a hefty sum of money to have it replaced, knowing full well that Nvidia pays for the full repair cost.
Three and a half months ago, after having my repair denied, I announced on this very site that I was going to sue Apple. Reading these lawsuit threats often, many people assumed that I was bluffing or blowing off steam, but true to my word, I did exactly what I said I was going to do. I sued Apple.
I did not take this step lightly, however. In the months following the announcement, I did everything in my power to keep my dispute with Apple out of the court system.
First, I filed a complaint with the Better Business Bureau. In their rebuttal to the BBB, Apple blatantly lied about the diagnostics they had run on my computer, and the BBB promptly closed the case, leaving Apple’s “A+” rating intact.
Next, I spoke with Apple Executive Services … three separate times. Each time, I was told that “We value each customer and hope that they have a positive experience with Apple, and are sorry that you did not have this experience, but you will get nothing.” … or something to this effect.
After that, I sent a demand letter to Apple via certified mail. I informed them that if I did not have my issue resolved within 10 days, I would sue.
Only then, after Apple failed to reply, did I file a Small Claims lawsuit.
Last week, the trial was held.
I arrived at the King County Courthouse shortly after 8am, and about forty five minutes later, the clerk performed roll call. Imagine my surprise when I learned that Apple had sent not one, but two people to represent the company. When Apple told me that I would get nothing, they really meant it.
After calling roll, and before calling the docket, the clerk went down the case list and asked each litigant if they would be willing to try mediation. Mediation keeps cases out of the court system, and keeps the outcomes confidential. This is especially beneficial to companies, as having judgements issued against them by customers is bad PR.
Always one to exhaust all good-faith remedies before resorting to more drastic measures (really, nobody can say I didn’t try my hardest to stay out of court), I agreed to try mediation, and to my surprise, so did Apple.
Since everything said in the mediation room is confidential, I cannot go into details about what happened there, but I will tell you that it failed, and the case was sent back to the courtroom.
In retrospect, I am glad that mediation did fail. After seeing that Apple sent two guys … two guys who were in continuous contact with Apple legal via text and cell … I knew that I was outgunned, outspent, and out-everything elsed. $500,000,000,000 vs. $37 and a pack of chewing gum is not a fair fight. Because of this, I offered settlements that were ridiculously favorable to Apple and unfavorable to myself, but even these were rejected. Thank goodness that they were.
After failing mediation, shortly after 11am, we were called before the judge, sworn in, and I read my opening statement. I said basically everything I’ve been saying on this blog for the last several months. I stuck to the facts, handed my exhibits to the clerk (several printed pages), and was as professional as possible.
When it was Apple’s turn, their representatives opened by throwing a hail mary pass. While holding up the press release outlining the 8600GT replacement program, they claimed that, because the CPU in my MacBook Pro was clocked at 2.6Ghz, and not 2.4Ghz, or 2.5Ghz as stated in the release, that I had a completely different computer … one that was not subject to the 4 year replacement program.
You see, when I ordered my MacBook Pro, I paid about $300 extra for them to up-clock the chip from 2.5Ghz to 2.6Ghz. Yes, it was a classic Apple ripoff, and yes, I was dumb to order it, but I did it, mea culpa.
I had absolutely no idea that it would be used against me in a court of law to explain to a judge why I should not be covered by an extended warranty, and it caught me off-guard. Perhaps, despite everything, I am still a bit naive, because not even I expected Apple to just … lie. At least not in such a silly manner.
Remember, I was not going up against the owner of some taco stand, I was up against the most profitable company in the USA. I honestly expected more than a silly fib.
After listening to Apple, the judge turned to me and asked for my response, and I explained to him, in detail, that the chips, logic boards, and GPUs in all of the MacBook Pro models were the same, regardless of the speed at which the CPUs had been clocked.
Confused, the judge turned to Apple and asked, “Is this true?”