Care v. Cpuc

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2024
• Docket: 23-55291
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIANS FOR RENEWABLE No. 23-55291 ENERGY, a California Non-Profit Corporation; et al., D.C. No. 2:11-cv-04975-JWH-JCG Plaintiffs-Appellants,

MEMORANDUM*

v.

CALIFORNIA PUBLIC UTILITIES COMMISSION, an Independent California State Agency; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding

Argued and Submitted October 10, 2024 Pasadena, California

Before: PAEZ, NGUYEN, and HURWITZ, Circuit Judges.

CAlifornians for Renewable Energy (“CARE”), Michael Boyd, and Robert

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Sarvey appeal the district court’s dismissals of their operative complaints asserting

that the California Public Utilities Commission (“CPUC”) violated the federal Public

Utility Regulatory Policies Act (“PURPA”), 16 U.S.C. § 824a-3. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. CARE, Boyd, and Sarvey alleged sufficient facts to establish Article III

standing at the motion to dismiss stage. See Spokeo, Inc. v. Robins, 578 U.S. 330,

338 (2016). They alleged that they received less compensation than federal law

entitles them to for electricity they sold to utilities because of the CPUC’s improper

calculation of avoided cost. This “is a classic pocketbook injury sufficient to give a

plaintiff standing.” Jama v. State Farm Mut. Auto. Ins. Co., 113 F.4th 924, 937 (9th

Cir. 2024) (cleaned up).

2. Although Boyd and Sarvey alleged sufficient facts to establish Article

III standing, the district court correctly held that their operative seventh amended

complaint failed to state a claim. See Maya v. Centex Corp., 658 F.3d 1060, 1068

(9th Cir. 2011) (“[T]he threshold question of whether plaintiff has standing (and the

court has jurisdiction) is distinct from the merits of his claim.”). A PURPA

implementation claim must allege a violation of that statute or an implementing

regulation. See 16 U.S.C. § 824a-3(h)(2)(B). The purported violation in this case, as

we noted in a prior opinion, is the CPUC’s avoided cost calculation applicable to the

sale of electricity by a qualifying facility (“QF”) to an investor-owned utility

2 (“IOU”) to satisfy the Renewables Portfolio Standard (“RPS”) obligations imposed

on IOUs by California law. See CAlifornians for Renewable Energy v. Cal. Pub.

Utils. Comm’n, 922 F.3d 929, 936-38 (9th Cir. 2019). IOUs can only satisfy their

RPS obligations with electricity generated by facilities certified by the California

Energy Commission (“CEC”) as “eligible renewable energy resources.” Cal. Pub.

Util. Code §§ 399.11(a), 399.25(a). The seventh amended complaint does not allege

that Boyd and Sarvey are so certified.1

3. The district court did not abuse its discretion in denying Boyd and

Sarvey leave to file an eighth amended complaint because amendment would have

been futile. See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002).

The proposed eighth amended complaint also failed to allege that Boyd and Sarvey

are certified by the CEC as renewable energy resources, nor do they argue they are

so certified on appeal.

4. CARE’s operative sixth amended complaint also failed to state a claim

upon which relief can be granted. PURPA only authorizes suits by QFs and other

specified entities. 16 U.S.C. § 824a-3(h)(2)(B). The sixth amended complaint did

not allege that CARE was a QF or otherwise authorized to sue. See 18 C.F.R.

§ 292.203.

1 Because we determine the district court properly dismissed Boyd and Sarvey’s claim under Rule 12(b)(6), we need not address the court’s Rule 41(b) dismissal.

3 5. Given the long history of this litigation, the district court did not abuse

its discretion in denying CARE leave to file an eighth amended and third

supplemental complaint alleging that it had recently obtained QF certification.

Nguyen v. Endologix, Inc., 962 F.3d 405, 420 (9th Cir. 2020). In any event,

amendment would be futile as the proposed pleading does not allege that CARE is

CEC certified. See Flowers, 295 F.3d at 976.

AFFIRMED.2

2 Appellants’ motion for judicial notice, Dkt. 40, and Appellees’ motion to strike portions of the reply brief, Dkt. 47, are denied.