Idaho Power Co. v. Idaho Public Utilities Commission

90 P.3d 889, 140 Idaho 139, 2004 Ida. LEXIS 47
CourtIdaho Supreme Court
DecidedMarch 30, 2004
DocketNo. 29016
StatusPublished

This text of 90 P.3d 889 (Idaho Power Co. v. Idaho Public Utilities Commission) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Idaho Power Co. v. Idaho Public Utilities Commission, 90 P.3d 889, 140 Idaho 139, 2004 Ida. LEXIS 47 (Idaho 2004).

Opinions

KIDWELL, Justice.

This is an appeal from a final Order of the Idaho Public Utilities Commission (Commission) denying Idaho Power Company’s (Idaho Power) request to recover “lost revenue” from the implementation of Idaho Power’s Irrigation Buy-Back Program (Program) during the 2001 growing season. Idaho Power argues Commission Order 28699 authorized the recovery of lost revenue and the Commission’s subsequent order denying the recovery of lost revenue conflicts with this earlier order. Because this Court finds Order 28699 did authorize the recovery of lost revenue, the Order of the Commission denying Idaho Power recovery of lost revenue is vacated and remanded.

I.

FACTUAL AND PROCEDURAL BACKGROUND

This ease arises from the latter of a two-case proceeding before the Commission. The first case (IPC-E-01-03) started on February 7, 2001, when Idaho Power submitted a formal application to the Commission requesting permission to implement an energy conservation program called the Irrigation Buy-Back Program (Program). The Program offered monetary incentives in the form of payments to its large irrigation customers to encourage them to reduce their electrical demand and associated consumption of energy during the 2001 growing season. The Program was in response to the “current projections of below-normal stream-flows in the Snake River and its tributaries, coupled with the volatile wholesale energy market in the Western United States.” Idaho Power believed these factors created a situation where it would be more cost-effective for Idaho Power to undertake the Program. Because the Program would result in Idaho Power expending large sums (hereinafter “direct costs”) in payments to eligible customers and foregoing substantial amounts in revenue (hereinafter “lost revenue”), Idaho Power sought an Order of the Commission that would permit Idaho Power to treat “payments to customers and lost revenue associated with the Program as purchased power expenses eligible for recovery in retail rates by passing them through the Company’s Power Cost Adjustment (“PCA”) mechanism.”

On February 20, 2001, the Commission issued Order 28647 approving Idaho Power’s application for the sole purpose of authorizing Idaho Power to solicit competitive bids from its irrigation customers to reduce their energy consumption during the 2001 growing season. The Commission also noted in its “findings” that Idaho Power remarks that its willingness to proceed with the Program was “dependent upon Commission assurances” that Idaho Power would be able to recover through its PCA mechanism direct costs and lost revenue resulting from the Program. The Order also required Idaho Power to seek future authorization before proceeding further with the Program. Future authorization had to be obtained on or before March 9, 2001.

On February 27 and 28, 2001, Astaris LLC, the Land and Water Fund of the Rockies, the Industrial Customers of Idaho Power Company (ICIP), the J.R. Simplot Company, and Jeffrey C. Brooks filed written comments in response to Idaho Power’s Program and their request to recover expenses resulting from the Program. The majority of the commentators supported the implementation of the Program, but not all were in agreement regarding the recovery of lost revenue.

On March 5, 2001, the Commission scheduled a public hearing for March 13, 2001, to review whether Idaho Power’s Program should continue, and to receive testimony and comments regarding lost revenue, the cost-effectiveness of the Program, and any other concerns of interested persons or parties.

On March 7, 2001, in compliance with Commission Order 28647, Idaho Power submitted its request for authority to accept bids from irrigators in the Program. In its submission to the Commission, Idaho Power also reiterated its concern regarding its ability to recover “lost revenue.” On March 12, 2001, the Commission’s Staff and the Farm Development Corporation filed comments pertaining to Idaho Power’s request for the recovery of lost revenue from the Program. On March 13, 2001, the Commission held its [141]*141public hearing and took the testimony of four intervenors and several members of the public regarding Idaho Power’s Program and issues regarding the recovery of costs and lost revenue.

On March 14, 2001, the Commission entered Interlocutory Order 28676, which approved Idaho Power’s request to implement the Program. The Order acknowledged that Idaho Power voluntarily proposed and entered into the Program and stated that Idaho Power “may” treat the revenue impacts of the Program as a purchased power expense in the Company’s PCA mechanism.

On March 25, 2001, the Commission issued Order 28699. This Order summarized many of the comments provided by interested parties and reviewed the procedural history up to that point in the proceedings, which included Idaho Power’s concern regarding the recovery of lost revenue, the voluntary nature of the Program, and the manner in which direct costs and lost revenue of the Program were to be treated in the PCA mechanism. The Order also required Idaho Power to develop and present a proposal to the Commission recommending a procedure to calculate the appropriate amount of lost revenues that should be passed through the Company’s PCA mechanism prior to actual recovery in rates.

On October 18, 2001, Idaho Power filed its application seeking an order of the Commission “approving the costs to be included in the 2002/03 Power Cost Adjustment year” for the Program. The application was docketed as Case No. IPC-E-01-34, the second part of the two-ease proceeding before the Commission.

On November 30, 2001, the Idaho Irrigation Pumpers Association and the Commission’s staff filed written comments in response to Idaho Power’s application for a Commission order approving the costs from the Program. Both parties concluded Idaho Power should be able to recoup a portion of its lost revenues. However, many written comments received from the public indicated they did not think Idaho Power should recover its lost revenue from the Program. On December 28, 2001, Idaho Power filed a response to the public, Commission staff and Irrigation Pumpers Association’s comments regarding, inter alia, Idaho Power’s request for lost revenues. On April 15, 2002, the Commission issued Order 28992, which authorized Idaho Power to include the direct costs it accrued through the Program into the 2002/03 PCA year. However, the Commission denied Idaho Power’s request for recovery of its lost revenue alleged to have been incurred by Idaho Power through the Program.

On May 2,2002, Idaho Power filed a timely Petition for Reconsideration. Idaho Power requested the Commission reconsider its denial of the recovery of lost revenue from the Program. On May 30, 2002, the Commission, for the limited purpose of ensuring that it had adequate time to review the entire record in this matter, granted Idaho Power’s Petition. On August 29, the Commission issued Order 29103, which reaffirmed the Commission’s denial of lost revenue in accordance with Order 28992. Idaho Power appealed to this Court.

II.

STANDARD OF REVIEW

The Idaho Constitution provides that the Idaho Supreme Court shall have jurisdiction to review on appeal any order of the Idaho Public Utilities Commission. IDAHO CONST, art. V, § 9; Indus. Customers of Idaho Power v. Idaho PUC, 134 Idaho 285, 288, 1 P.3d 786, 789 (2000). The scope of this

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Bluebook (online)
90 P.3d 889, 140 Idaho 139, 2004 Ida. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/idaho-power-co-v-idaho-public-utilities-commission-idaho-2004.