There has been a lot of buzz today about the 9th Circuit decision in Ellis v Salt River Project as a big win for rooftop solar. A thread. cdn.ca9.uscourts.gov/datastore/opin… @SRPconnect #energytwitter
SRP is often criticized for having the worst DG policy in the state. This case is a class action suit over their new E-27 rate plan for DG customers in adopted in 2015. It increased rates for solar customers by 65% and resulted in a 50-96% drop in new DG apps. PG 7
Ellis' case was tossed at the trial court. He alleged claims related to state law, equal protection, and antitrust. The state law claims were also tossed on appeal because he did not provide proper notice of an intent to sue.
The appellate court did not vet the equal protection (constitutional law) claim, because the trial court had not considered SRP's defense. So, that was remanded back to trial court.
The meat of the decision is the antitrust claims, which begin on page 23. The trial court stated Ellis had not demonstrated an injury. The appellate court disagreed. But then SRP articulates several defenses, two of which are rejected by the appellate court.
First, SRP tries to claim the "filed rate doctrine" protects them, but the appellate court rejects that because SRP doesn't file their rates anywhere. They literally make them unilaterally, they are not regulated by anyone.
Second, SRP argues the "doctrine of state action immunity" protects them. This is where things get interesting and very timely. The Court tosses this defense because "the State of Arizona has not articulated a 'policy to displace competition.'" PG 25.
The Court relies in ARS 40-202(D), 30-803(A), 30-805(E), 30-803(F), 30-802(B)(1)(a), 30-805(D), and 30-813 to demonstrate that Arizona has a policy in favor of competition (not anti-competitive behavior) (all on page 26).
"Even if '[t]he sort of competition [Arizona law] envisions has yet to emerge on the scale the legislature hoped,' Arizona has clearly 'expresse[d] a policy preference for competition in electricity generation and supply.'" (page 27)
Coincidentally, SRP is currently running a bill HB 2101 (and its mirror bill SB 1631) that completely scrap ARS 40-202(D). It also repeals and then re-writes 30-802, 30-803, and 30-805. The re-writes eliminate the competition language relied on by the Court.
Therefore, I believe it is accurate to say that the basis for the win for solar today, would no longer be applicable should HB 2101 pass. If you care about DG solar, you should be looking closely at these bills: azleg.gov/legtext/55leg/…. HB2101 already passed out of committee.
SB 1631 could be in committee as soon as Wed, Feb 9th. HB 2101 is waiting to be heard in rules committee, possibly as soon as Mon, Feb 7th.
If you’re wondering how to track bills in AZ, it’s a legit question. Definitely sign up for @SierraClubAZ’s legislative tracker emails: sierraclub.org/arizona/legisl…

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