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Goldwater Institute fights renewable-energy rules in Arizona court

The Arizona Republic|Ryan Randazzo |November 17, 2010
ArizonaGeneral

The Goldwater Institute took a fourth stab Tuesday at striking down rules in Arizona that force utilities to use renewable energy such as solar power. The institute's lawyer, Clint Bolick, argued in the Arizona Court of Appeals that the rules passed in 2006 by the Corporation Commission exceed the authority of those five elected officials who oversee utilities such as Arizona Public Service Co.


The Goldwater Institute took a fourth stab Tuesday at striking down rules in Arizona that force utilities to use renewable energy such as solar power.

The institute's lawyer, Clint Bolick, argued in the Arizona Court of Appeals that the rules passed in 2006 by the Corporation Commission exceed the authority of those five elected officials who oversee utilities such as Arizona Public Service Co.

The Arizona Corporation Commission allows APS and other utilities to collect monthly tariffs from customers to subsidize the cost of solar, wind, geothermal and other alternative-power sources.

APS is proposing to raise that monthly tariff to a maximum of $4.05 a month for residential customers. It's $3.46 today.

The rules not only require …

... more [truncated due to possible copyright]

The Goldwater Institute took a fourth stab Tuesday at striking down rules in Arizona that force utilities to use renewable energy such as solar power.

The institute's lawyer, Clint Bolick, argued in the Arizona Court of Appeals that the rules passed in 2006 by the Corporation Commission exceed the authority of those five elected officials who oversee utilities such as Arizona Public Service Co.

The Arizona Corporation Commission allows APS and other utilities to collect monthly tariffs from customers to subsidize the cost of solar, wind, geothermal and other alternative-power sources.

APS is proposing to raise that monthly tariff to a maximum of $4.05 a month for residential customers. It's $3.46 today.

The rules not only require utilities to get increasing amounts of power from renewables until they get 15 percent of their power that way by 2025, but also require that set percentages come from "distributed" sources such as rooftop solar, and that the rooftop projects are spread evenly among homes and businesses.

"I would say it is the poster child for excessive commission regulation that has nothing to do with (the commission's) rate-making authority," Bolick said.

Bolick has lost his argument against the rules three times already in Arizona courts.

The latest attempt ended in September 2009, when Maricopa County Superior Court Judge Joseph Heilman determined that regulators have the authority to regulate power sources. He went further to say that the renewable-energy rules are good policy.

"The (renewable-energy) rules are the commission's efforts to control costs and rates over the long run by promoting and safeguarding the security, convenience, health and safety of the affected utilities customers and the public in Arizona," Heilman wrote in his decision.

He said fossil-fuel availability will be limited in the future and the rules diversify energy resources, "which is critical to maintaining reliable electric services in Arizona."

Heilman's decision came after the Supreme Court and Court of Appeals both declined to exercise special-action jurisdiction on the Goldwater challenge.

Corporation Commission lawyer Wes Van Cleve argued Tuesday that regulators have the authority to regulate rates and that the energy rules are an extension of that authority because they relate to rates that customers will pay for power in the future.

Judges Maurice Portley, Margaret Downie and Patricia Orozco asked questions of both sides.

Downie told Bolick the judges could not "address the wisdom of the rules" and had to focus on the narrow issue of the commission's authority. She also questioned why the Goldwater Institute and the APS customers it is representing did not challenge the rules as they were being discussed during a lengthy process at the Corporation Commission.

"I'm troubled by the delay in this challenge," Downie said.

Bolick said the challenge was timely and came soon after regulators approved raising the tariff on APS customers in 2008.

"The rules here start bad and get worse," Bolick said. "They go to the heart of managerial decisions. What this gets to is who is really in charge of the (utilities' energy) resource portfolio. (To the commissioners imposing the rules) cost is no object and technological feasibility is no issue."

Long-running dispute

Timeline in Miller vs. Arizona Corporation Commission

- Nov. 14, 2006: The Arizona Corporation Commission adopts the Renewable Energy Standard and Tariff Rules.

- Aug. 14, 2007: The rules go into effect.

- June 27, 2008: The Goldwater Institute asks the Arizona Supreme Court to strike down the rules, and eventually is declined.

- Nov. 12, 2008: The Goldwater Institute refiles special action in the Arizona Court of Appeals, where it also is declined.

- Nov. 19, 2008: The Goldwater Institute refiles complaint in the Maricopa County Superior Court.

- June 15, 2009: Judge Joseph Heilman hears oral arguments.

- Sept. 2, 2009: Heilman rules in favor of the Arizona Corporation Commission.

- Nov. 2, 2009: The Goldwater Institute files appeal.

- Tuesday: The Goldwater Institute makes its argument to the Court of Appeals.


Source:http://www.azcentral.com/ariz…

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