Published on August 20th, 2014 | by Roy L Hales2
Washington State: Can The Commission’s Decision Survive A Legal Challenge?
August 20th, 2014 by Roy L Hales
Washington state has recommended that companies that lease rooftop solar systems, and sell the power produced by the system to a customer, be treated as electrical companies. In a press release issued in July, the state’s utility commissioners stated it would not “be appropriate to require the same level of economic and rate regulation of solar leasing companies as it applies to investor-owned utilities.” They are asking that the state Legislature draw up a statute to clarify the commission’s authority. The big question: Can the Commission’s decision survive a legal challenge?
“This is something may or may not be resolved by the legislature, but no other state has ever done anything along the lines of exerting monopoly jurisdiction over a company that is not a utility before,”Brian Miller, President of the Alliance for Choice (TASC) “It is not something that will survive legal challenge or the political process.”
In a similar case last month, the Iowa Supreme court ruled (4-2) that a local solar energy company did not act as a public utility when it attempted to enter a third-party power purchase agreement with the city of Dubuque.
“The Iowa Supreme Court said that solar companies are not utilities and they will not regulate on them as utilities,” Miller explained.
Similar decisions have been made in Nevada, New Mexico, and Oregon, and were mentioned in the court document.
In Arizona, for example, the court decided that SolarCity’s business was not selling electricity but rather “designing, financing, installing and monitoring solar systems”
The Washington state Utilities and Transportation Commission (UTC) is asking the state Legislature to draw up a statute clarifying the commission’s authority.
UTC has been studying their role in this situation since 2011. They currently do not maintain information on solar leasing companies, because they are not required to register.
“The Commission is trying to be proactive and make sure that we know how to define our role clearly,” A UTC spokesperson said. “we believe our primary focus should be on consumer protection and ensuring that the proper conditions are established for fair competition.”
They recommend the Attorney General’s office retain the authority to investigate any legal problems that arise.
The Commission hopes that the state legislature will clarify its position during the 2015 session, otherwise, “the UTC will consider initiating a rulemaking to clarify its jurisdiction.”
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