Nippc.org

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
MOTION TO ANSWER AND ANSWER OF EXELON
TO THE IDAHO PUBLIC UTILITIES COMMISSION
Pursuant to Commission Rules 212 and 213,1 Exelon Corporation (“Exelon”) submits this limited Answer to the Answer filed by the Idaho Public Utilities Commission (“Idaho PUC”) in this proceeding. Exelon submits that Cedar Creek Wind LLC’s (“Cedar Creek”) Petition for Enforcement of the Public Utility Regulatory Policies Act of 1978 (“Cedar Creek Petition” or “Petition”) presents an important question of law that goes to the heart of Congress’ intent in enacting the Public Utility Regulatory Policies Act of 1978 as amended (“PURPA”) to enable Qualifying Facilities (“QFs”) to sell their power output to utilities under a mandatory purchase obligation.2 MOTION FOR LEAVE TO ANSWER
Pursuant to Rule 212, Exelon requests leave to file an Answer to the Answer filed by the Idaho Public Utilities Commission (“Idaho PUC”) in this proceeding.3 Exelon respectfully requests the Commission to accept this Answer pursuant to Rule 213(a)(2).4 Exelon understands that the Commission’s regulations do not permit answers to answers ordinarily, but the Commission accepts such answers when the pleadings are helpful to clarify the issues and assist the Commission in reaching a fully-1 18 C.F.R. §§ 385.212 and 385.213 (2010). 2 Congress repealed the PURPA mandatory purchase obligation in the Energy Policy Act of 2005 under circumstances that do not apply in this case; namely, the utility has not sought exemption under the Commission’s regulations and the QFs do not have nondiscriminatory access to a competitive wholesale market. 16 U.S.C. § 824a-3(m). 3 Exelon timely intervened in this proceeding on August 16, 2011. 4 18 C.F.R. § 385.213(a)(2). informed and well-reasoned decision.5 Here good cause exists to accept Exelon’s Answer because the Idaho PUC’s decision raises a significant issue of federal law that could have far-reaching harmful impacts on implementation of PURPA, especially if Exelon files this Motion to Answer and Answer to emphasize that at issue here is a misreading of the Commission’s regulations that jeopardizes the fundamental statutory right of QFs to sell their output under PURPA and the Commission’s PURPA regulations. If uncorrected by this Commission, the Idaho PUC’s orders stand for the proposition that states’ implementation of PURPA may require the host utility’s written contract to purchase power from a QF to establish the “legally enforceable obligation” under the Commission’s regulations6 to purchase QF power, contrary to PURPA, this Commission’s PURPA’s regulations, and this Commission’s clear precedent. As this Commission has recognized, allowing the host utility’s actions to establish the “legally enforceable obligation” to sell or purchase power under PURPA would enable utilities to thwart the statute by simply refusing to or delaying signing a contract.7 The Idaho 5 See, e.g., Entergy Services, Inc., 116 FERC ¶ 61,286, at P 6 (2006); Midwest Independent Transmission System Operator, Inc., 116 FERC ¶ 61,124, at P 11 (2006). 6 18 C.F.R. §292.304(b)(5), (d)(2). In fact, the term “legal y enforceable obligation” is used by the Commission in its regulations governing rates for purchases of QF power to al ow both ful y executed contracts and “other legal y enforceable obligations” to establish PURPA purchase obligations and the date on which avoided costs are determined for QF power. For example, 18 C.F.R. § 292.304.(b)(5) states that rates “based upon estimates of avoided costs over the specific term of the contract or other legal y enforceable obligation” may differ from avoided costs at the time of delivery. (Emphasis supplied.) The distinction would be meaningless if a ful y executed contract were required to establish a PURPA purchase obligation and determine avoided cost rates. 7 Order No. 69, Smal Power Production and Cogeneration Facilities; Regulations Implementing Section 210 of the Public Utility Regulatory Policies Act of 1978, FERC Stats & Regs., Regulations Preambles 1977-1981 ¶ 30,128, at 30,880; 45 Fed. Reg. 12,214, 12,230-31 (Feb. 25, 1980), aff’d in part & vacated in part on other grounds, Amer. Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 (D.C. Cir. 1982), rev’d in part on other grounds, Amer. Paper Inst., Inc. v. Amer. Elec. Power Serv. Corp., 461 U.S. 402 (1983) (“Order No. 69”)(explaining that use of PUC’s Orders, and its Answer filed in this proceeding, demonstrate that the Idaho PUC has failed properly to interpret and implement PURPA and the Commission’s PURPA regulations by refusing to give effect to the “legally enforceable obligation” until the host utility signed the Firm Energy Sales Agreements (the “Agreements”) accepting the QF’s commitment to sell. This undercuts the fundamental QF right to sell guaranteed by statute and is contrary to the Commission’s own interpretation of its regulations. This ruling by the Idaho PUC must be corrected. BACKGROUND AND SUMMARY
Cedar Creek filed its Petition for Enforcement on August 5, 2011 asking this Commission’s to initiate an enforcement action against the Idaho PUC “insofar as the Idaho PUC Orders impermissibly held that a QF’s right under PURPA to charge at the then-existing avoided cost rates exists only upon the execution of a contract by both parties.” (Petition at 2.) In its submittal, Cedar Creek stated that the Idaho PUC rejected five Firm Energy Sales Agreements (“Agreements”) between Cedar Creek (the “QF”) and PacifiCorp d/b/a Rocky Mountain Power (“Rocky Mountain Power”) solely because the utility, Rocky Mountain Power (the “host utility”), failed to execute the Agreements by December 14, 2010. December 14 is the deadline established by the Idaho PUC for projects above 100 kW to qualify for so-called “published” avoided cost rates rather than alternative avoided cost rates determined by an Integrated Resource Planning Process.8 As recited by the Cedar Creek Petition (at 1-2, 6) the Idaho PUC mistakenly rejected the Agreements on the basis that there was no “legally enforceable obligation” under PURPA until the time the contract was fully executed, i.e. signed by the term “legal y enforceable obligation” in the regulations is intended to prevent a utility from circumventing PURPA by refusing to enter into a contract with a QF). 8 Cedar Creek Petition at 1. Rocky Mountain Power on December 22, 2010, notwithstanding that the QF Cedar Creek had executed the Agreements on December 13, 2010.9 The Idaho PUC issued two Orders, on June 8, 2011 and July 27, 2011, which stated the Idaho PUC’s position that a legally enforceable obligation was created only at the time the contract was fully executed, i.e. signed by the host utility, Rocky Mountain Power.10 Thus, the Idaho PUC incorrectly concluded that a “legally enforceable obligation” under PURPA was not triggered by the QF until December 22, 2010, too late for Cedar Creek to qualify for the published avoided cost rates. Cedar Creek initiated this proceeding to challenge this determination and address the Idaho PUC’s failure to implement PURPA under In its orders, the Idaho PUC, determined that the host utility agreeing to enter into a contract accepting the QF’s commitment is the appropriate trigger for the creation of a legally enforceable obligation. This is the core issue in this Proceeding. Thus, the crucial question presented in this case is whether a “legally enforceable obligation” under PURPA and this Commission’s regulations and case law is triggered by: (1) the written commitment by the QF to sel its power output or (2) the final acceptance of that QF’s commitment by the host utility. The Idaho PUC incorrectly determined that the action of the host utility in accepting the QF’s commitment creates the “legally enforceable obligation.” The Idaho PUC failed to properly implement the Commission’s PURPA regulations. It is imperative that the Commission make clear that the a “legally enforceable obligation” under the Commission’s PURPA regulations is 9 Idaho PUC Order No. 32260, Case No. PAC-E-11-01 et al., (June 8, 2011); Idaho PUC Order No. 32302, Case No. PAC-E-11-01 et al., (July 27, 2011). 10 Idaho PUC Order No. 32260, Case No. PAC-E-11-01 et al., (June 8, 2011); Idaho PUC Order No. 32302, Case No. PAC-E-11-01 et al., (July 27, 2011). established by the QF’s actions and at the QF’s option, such as when the QF has done everything in its power to create an obligation by making a written commitment to sell all of its net output to the host utility, not when the host utility finally agrees to execute the contract accepting the QF’s commitment. Exelon, as an owner of QF wind farms in the state of Idaho, respectfully supports Cedar Creek’s requested relief seeking the Commission’s confirmation that “[a] state commission tasked with implementing the Commission’s PURPA regulations may not require that a QF have a fully executed contract to establish a ‘legally enforceable obligation’ under the Commission’s PURPA regulations.” (Cedar Creek Petition at 15.) Exelon urges the Commission to confirm its ruling that “a QF, by committing itself to sell to an electric utility, also commits the electric utility to buy from the QF.”11 Thus, the “legally enforceable obligation” to purchase under PURPA is established upon the QF’s commitment to sell its output to the utility under PURPA’s statutory and regulatory framework, not the utility’s agreement to purchase. The Idaho PUC’s ruling that “legally enforceable obligation” under this Commission’s PURPA regulations is not established until the host utility agrees to purchase the power, fundamentally misconstrues the purpose Congress sought to achieve in enacting PURPA: to prevent utilities from refusing to purchase power from QFs by establishing a requirement under federal law for utilities to make such purchases.12 The Commission also has been crystal clear that the states are not permitted to require an executed contract with a utility to establish a “legally enforceable 11 J.D. Wind 1, LLC, et al., 129 FERC ¶ 61,148, at P 25 (2009). 12 Id., at P 24. contract.”13 The Commission should correct the Idaho PUC’s error and make clear that by committing itself to sell, a QF is creating a “legally enforceable obligation” of the host A. A “Legally Enforceable Obligation” of the Host Utility to Purchase QF
Power Ultimately is Governed by PURPA and this Commission’s
Regulations; the Idaho PUC Incorrectly Implemented That Law.
The fundamental issue in this proceeding is defining the trigger for establishing a “legally enforceable obligation” under the Commission’s regulations. The issue is whether the QF’s written commitment to sell or the utility’s execution of a contract to purchase establishes a “legally enforceable obligation” under PURPA and this Commission’s regulations. In the orders at issue in this proceeding, the Idaho PUC incorrectly found that the trigger for creating a legally enforceable obligation is the date that the host utility finally agrees to execute a contract accepting the QF’s written commitment, rather than the date that QF made a written commitment to sell its power to the host utility under PURPA. The Idaho PUC incorrectly found that only the action of the host utility triggers the creation of a legally enforceable obligation under PURPA. The Commission’s precedent interpreting its own regulations is clear on that point: the QF’s offer to sell its power output to the host utility establishes the “legally enforceable obligation” of the utility to purchase.14 The Idaho PUC’s decision to disqualify Cedar Creek from eligibility for the published avoided cost rates was based on its mistaken view that the utility’s signature on the commitment to sell proffered by the 13 Order No. 69, supra, n. 6. See also, Metropolitan Edison Co., 72 FERC ¶ 61,015, slip op. at 15 and n. 8 (1995)(citing Order No. 69 in rejecting the utility’s argument that an avoided cost determination cannot be made until a utility agrees to enter into a binding contract). QF was necessary to establish a legal obligation to buy. Rather, under this Commission’s rules and precedent, Cedar Creek’s tender of its written commitment to the host utility on December 13, 2010, invoking its PURPA right to require the utility to purchase its power is the relevant action creating the “legally enforceable obligation” to purchase. The Idaho PUC failed properly to implement this Commission’s regulations under PURPA with potentially far-reaching harmful impacts undermining Congress’s 1. The Actions of the QF Trigger the “Legally Enforceable Obligation”
Under PURPA.
FERC has established that a “legally enforceable obligation” under PURPA is established by the commitment of the QF, not the agreement of the host utility. Otherwise a QF’s ability to invoke its PURPA right to sell power to a utility would depend on the utility’s voluntary agreement to purchase the power and execute a contract accepting the QF’s commitment - exactly the situation Congress enacted PURPA to remedy, as this Commission recognized in J.D. Wind. Thus, under the Idaho PUC’s reading of PURPA, a host utility could easily flout the statute and escape its PURPA The requirement that the actions of the QF, not the actions of the host utility, trigger the creation of a legally enforceable obligation is expressly addressed in this Commission’s Order No. 69, the Order promulgating the PURPA regulations.15 In fact, 15 Order No. 69, Smal Power Production and Cogeneration Facilities; Regulations Implementing Section 210 of the Public Utility Regulatory Policies Act of 1978, FERC Stats & Regs., Regulations Preambles 1977-1981 ¶ 30,128; 45 Fed. Reg. 12,214, 12,230-31 (Feb. 25, 1980), aff’d in part & vacated in part on other grounds, Amer. Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 (D.C. Cir. 1982), rev’d in part on other grounds, Amer. Paper Inst., Inc. v. Amer. Elec. Power Serv. Corp., 461 U.S. 402 (1983) (“Order No. 69”). the term “legally enforceable obligation” is used by the Commission in its regulations governing rates for purchases of QF power to distinguish between contracts and “other legally enforceable obligations,” either of which will create a PURPA purchase obligation and establish the date on which avoided costs rates can be used to determine, at the QF option. For example, 18 C.F.R. § 292.304.(b)(5) states that rates “based upon estimates of avoided costs over the specific term of the contract or other legally enforceable obligation” may differ from avoided costs at the time of delivery. The distinction would be meaningless if there were no difference between “contract” and “other legally enforceable obligation.” And the Commission’s regulations make clear that it is the QF’s choice of how to sell its energy and/or capacity that determines what avoided cost is used to establish rates. 18 C.F.R. §304(d) states that QFs have the option to provide energy as available, using the avoided costs at the time of delivery, or to “provide energy or capacity pursuant to a legally enforceable obligation for the delivery of energy or capacity over a specified term,” using rates calculated at the time of delivery or at the time the obligation is incurred, whichever the QF chooses. Therefore, whatever other factors the state may take into account in determining specific avoided cost rates for a specific transaction under PURPA, it may not require a written contract executed by the utility in order to establish a legally enforceable Order No. 69,16 is clear: the Commission expressly recognized that if a signed contract were a condition precedent for an enforceable obligation under PURPA, a utility could thwart the statute’s purpose simply by refusing to sign. The Commission explained: “[u]se of the term ‘legally enforceable obligation’ is intended to prevent a 16 Order No. 69, supra, n. 6. utility from circumventing the requirement that provides capacity credit for an eligible qualifying facility merely by refusing to enter into a contract with the qualifying facility.”17 Thus, under Order No. 69, the action of a host utility in agreeing or not agreeing to execute a contract cannot be the trigger creating a “legally enforceable obligation.” The host utility’s “legally enforceable obligation” to purchase a QF’s power output is established by the statute and is triggered by the QF’s committing to sell its power in compliance with PURPA and the Commission’s regulations. The Commission relied on Order No. 69 in issuing its decision in JD Wind 1, LLC, et al., 129 FERC ¶ 61,148 (2009). That decision ruled that the Texas PUC’s order attempting to restrict “legally enforceable obligation” only to QFs that provide “firm” power was inconsistent with its PURPA regulations. In its Order the Commission Under our regulations, a QF has the option to commit itself to sell all or part of its electric output to an electric utility. . . . Accordingly, a QF, by committing itself to sell to an electric utility, also commits the electric utility to buy from the QF; these commitments result either in contracts or in non-contractual, but binding, legally enforceable obligations.18 Accordingly, the trigger for creating a “legally enforceable obligation” is the QF’s written commitment to sell its output to the host utility, not the host utility’s agreement to accept 17 Id. 18 JD Wind 1,supra, n.10, at P 25 (emphasis supplied). 19 The Idaho PUC argues that the parties themselves established that “a ful y executed contract” is required here by the contract term stating that the contract wil be effective “after execution by both Parties and approval by the Commission.” (Idaho PUC Answer at 4.) But that commonplace contractual term used to effectuate a written contract cannot be interpreted to supersede the Commission’s regulations that the QF must be able to establish a legal y enforceable obligation by its own actions or the statutory purposes wil be thwarted. Otherwise, as here, the utility’s unilateral delay in final y accepting the QF’s written commitment can undermine the QF’s option to establish avoided cost rates under FERC’s As discussed in other Commission orders, the “actions of the QF” that establish a “legally enforceable obligation” may take various forms, but it is the QF’s commitment that is the trigger for creating a “legally enforceable obligation.” In Metropolitan Edison20 the Commission rejected the host utility’s challenge to the state’s implementation of PURPA, refusing to be drawn into second guessing the state commission’s determination of avoided costs, but also signaling the error of the utility’s argument that the avoided cost could not be determined until the utility entered into a binding contract. Of critical importance here, in Metropolitan Edison, the Commission noted that suggest[s] an interpretation of our PURPA regulations (in particular, of 18 C.F.R. § 304(d) (1994)) that would not allow [a legally enforceable obligation to be created and] an avoided cost determination to be made until such time as a utility actually agreed to enter into a binding contract accepting the QF’s commitment. [Emphasis supplied.] 21 The Commission noted that “this suggestion was expressly rejected by the Commission in its initial rulemaking implementing PURPA . . . 22 (citing Order No. 69). Thus, the Commission’s PURPA regulations promulgated in Order No. 69 and its subsequent precedent are clear: the trigger for creating a “legally enforceable obligation” is a QF’s written commitment to sell its power, not the host utility’s action to regulations and consequently undermine the QF’s development and financing, contrary to the Commission’s stated purposes. 20 Supra, n. 12. There the utility sought to chal enge the state’s determination of the avoided cost rate by arguing, inter alia, that the rate should not have been established prior to the time the utility agreed to enter a binding contract. The state had determined the rate based on avoided costs at the time the developer took what actions it could to establish a legal y enforceable obligation. While the Commission refused to review the state’s decision, it did note that the utility’s argument was contrary to the Commission’s precedent and regulations and that the utility’s behavior in that instance appeared to demonstrate exactly why establishing a “legal y enforceable obligation” cannot depend upon a utility’s agreement to purchase power from a QF. Slip op. at 15. 21 Metropolitan Edison, 72 FERC ¶ 61,015, at 61,050. 22 Id. finally execute a contract and accept the QF’s commitment. Yet that is exactly what the Idaho PUC has found in the Cedar Creek orders. That has been “expressly rejected” by this Commission and therefore is a clear failure to implement PURPA and this Commission’s PURPA regulations. The Commission should issue a order ruling on the issue of law presented by the Idaho PUC’s orders, confirming again that a “legally enforceable obligation” is established under PURPA by the QF’s written commitment to sell its power to the host utility under PURPA, and not at the time the host utility agrees to enter into a binding contract accepting the QF’s commitment. 2. The Idaho PUC’s Answer Misconstrues this Commission’s Prior
Decisions.

In its Answer in this proceeding, the Idaho PUC misapplies the Commission’s deference to State Commissions in prior proceedings as an “anything goes” policy. That certainly is not the case where a state regulator fails to implement PURPA. While states may have broad discretion under this Commission’s regulations to implement PURPA, they do not have the discretion to ignore the Commission’s clear regulations and completely thwart the congressional mandate that utilities have a “legally enforceable obligation” to purchase QF power. The Idaho PUC’s reliance on prior FERC The Commission orders cited by the Idaho PUC, without explanation, as the basis for their decision, do not support the Idaho PUC’s orders here. In each of those cases, the Commission upheld state decisions that supported the QF option for avoided cost rates validly established “at the time a legally enforceable obligation” was incurred and rejected the utilities’ efforts to invalidate those pre-existing legally enforceable obligations. Indeed, the Commission noted in those cases that its regulations allowing QFs to opt for avoided cost rates at the time of a contract or “other legally enforceable obligation” are designed to protect QFs from the potential for the host utilities to “relentless[ly] refus[e] to cooperate with QF developers” selling power under PURPA. 23 Conversely, in this proceeding the QF’s rights to sell are jeopardized by the Idaho PUC’s failure to implement PURPA. The cases cited by the Idaho PUC do not address the issue presented here – whether the state can require a fully executed contract signed by the utility to trigger the “legally enforceable obligation” in the regulations. The Commission should not rely on “isolated language in prior orders that “ignores the intent For instance, In West Penn Power Company, cited by the Idaho PUC to support state discretion,25 the utility challenged the state’s refusal to change the avoided cost calculation based on changed circumstances.26 The Commission rejected the utility’s argument because the rates had been calculated at the time a “legally enforceable obligation” was established and were validly “locked-in.” Thus that case is inapposite to the question here that centers on whether a state may require a utility’s agreement to establish a “legally enforceable obligation” under PURPA. Hence the Idaho PUC’s reliance on isolated language from West Penn is misplaced. Indeed, as the Commission explained in West Penn, if the avoided cost rates could successfully be challenged and changed after the QF incurs a legally enforceable obligation, then QFs 23 Metropolitan Edison, 72 FERC ¶ 61,015 at 61,050. 24 West Penn Power Company, slip op. at 22 (admonishing the utility there not to attempt to “fit its petition into certain isolated language in our recent orders, [that] ignores the intent of those decisions”). The Idaho PUC has used “isolated language” of prior Commission orders out of context while ignoring the intent of those decisions. 25 Answer of Idaho Public Utilities Commission, at 20. 26 West Penn Power Company, 71 FERC ¶ 61,153, slip op. at 20 (1995). could be forced to pursue a moving target for financing. Thus, the Commission made clear in that case that the rate certainty provided under the Commission’s regulations, at the QFs option, is to facilitate the QFs securing financing. Allowing the state to require a utility’s agreement to purchase to dictate the establishment of the “legally enforceable obligation” under this Commission’s PURPA rules would be completely at odds with the fundamental purposes of the statute and regulations. So also with respect to other cases parties have attempted to rely on. For instance, Jersey Central Power & Light,27 like West Penn, dealt with whether to terminate or amend a contract. The case does not stand for the proposition that a signed contract is required – or can be required under the Commission’s regulations – to establish a “legally enforceable obligation” under PURPA rules. The Commission Should use its Authority to Correct the Idaho PUC’s
Interpretation Because it Could Have Wide-spread Harmful Impacts
on Implementation of PURPA.

The Commission’s authority under Section 210(h)(2) of PURPA28 to enforce the requirements of PURPA extends to situations where state agency implementation of PURPA is “inconsistent with or contrary to the Commission’s regulations.”29 The Commission can and should exercise its authority here to ensure that PURPA’s rules are correctly implemented. If the Commission does not act, the Idaho PUC may let stand an erroneous determination that a host utility may determine when a “legally enforceable obligation” to sell or purchase QF power is created. This has far-reaching 27 Jersey Central Power & Light Company, 72 FERC ¶ 61,015, at 61,297 (1995) (“Jersey 28 16 U.S.C. § 824a-3(h)(2) (2006). 29 Policy Statement Regarding the Commission’s Enforcement Role Under Section 210 of the Public Utility Regulatory Policies Act of 1978, 23 FERC ¶ 61,304 at 61,545(1983) (Policy Statement). consequences for QFs, not only those located in Idaho, but also in other jurisdictions. If the Idaho PUC can issue an order that gives the discretion to create a “legally enforceable obligation” to the host utility, thereby completely thwarting the congressional purpose to establish a federal “legally enforceable obligation,” then so also can every other state regulator. If host utilities determine when a “legally enforceable obligation” under PURPA is established, QFs will be powerless to proceed. This defies the intent of PURPA and must be corrected. This question is crucial to QFs The issue at the core of Cedar Creek’s Petition is straightforward. The Idaho PUC failed to implement PURPA when it decided that the trigger for creating a legally enforceable obligation was not until such time as a host utility agreed to enter a binding contract accepting the QFs written commitment to sell under PURPA. As demonstrated herein, the Idaho PUC’s finding is contrary to this Commission’s PURPA regulations, Order No. 69, and precedent, and therefore fails to implement PURPA. While this Commission need not wade into every issue in the Cedar Creek proceeding, this Commission does need to address the critical question about the correct trigger for creating a legally enforceable obligation. This is a question with critical nationwide If the Commission does not bring an enforcement action under its PURPA authority, the Commission at least should issue an order ruling that the “legally enforceable obligation” was created at the time the QF invoked its PURPA right to sell in a written commitment to the host utility. Requiring a “fully executed contract” signed by the host utility to establish a “legally enforceable obligation” is where the Idaho PUC failed to implement PURPA, and it is on this issue that the Commission must act to protect the rights of QFs under the Commission’s PURPA regulations. CONCLUSION
For the reasons set forth herein the Commission should issue an order ruling that the trigger for creating a “legally enforceable obligation” is the written commitment of the QF to sell its power to the host utility, not the action of the host utility to finally sign the contract. The Commission should ensure that the rights of QFs selling under PURPA, as set forth in PURPA, the Commission regulations, Order No. 69, and related Commission precedent are not violated by the Idaho PUC’s actions to date. Exelon respectfully requests that the Commission accept this Answer, and issue an order confirming that a host utility’s “legally enforceable obligation” to purchase QF power is established, not when the utility chooses to sign a contract, but rather when the QF commits to sell its output to the utility. Contrary to the Idaho PUC’s request for blanket deference, the fundamental PURPA implementation issue raised in this proceeding can be addressed, and must be addressed, to protect the rights of QFs under this Commission’s PURPA regulations. The Commission’s action here is necessary to ensure that the rights of wind QFs selling power under PURPA in Idaho – CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing document upon each person designated on the official service list compiled by the Secretary in Dated this 14 th day of September, 2011. /s/ Janine Durand Janine Durand GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, NW Washington, DC 20036 Telephone: (202) 887-3767 jdurand@gibsondunn.com

Source: http://www.nippc.org/upload/Exelon%20Answer%20091411.pdf