PUC Rulemaking, 2009

HB3039 assigns the task of designing the pilot program and writing its Administrative Rules to Oregon’s Public Utilities Commission (OPUC). The Rulemaking process began In September 2009 and consisted of several public workshops in which various interested parties came together periodically to discuss and critique a series of evolving “straw proposals”   (http://www.puc.state.or.us/PUC/admin_rules/workshops/AR_538_Informal_Phase.shtml) for program design put forward by PUC Staff. Public participation in the formal rulemaking process concluded on Feb 12, 2010 with submission of Closing Comments on AR538 and UM1452  (http://apps.puc.state.or.us/edockets/docket.asp?DocketID=15820 ) by PUC Staff and other stakeholders. OREP actively participated in rulemaking, offering significant contributions to the process for determining the incentive rate. 

During rulemaking for HB3039 an issue of legal jurisdiction has complicated the task of designing Oregon’s feed-in tariff pilot program. Simply put, the problem is that the federal government (Federal Energy Regulatory Commission - FERC) has jurisdiction over all wholesale sales of electricity in the United States (with a few minor exceptions that don't apply in Oregon).  A wholesale sale is any sale of electricity to someone else (utilities) who will then resell the electricity to an end user.  A FIT sale is therefore a wholesale sale. The question is whether Oregon’s PUC, by setting a fixed price for energy that is to be purchased by a utility from their retail customers who choose to produce solar energy, could place Oregon in violation of FERC’s pre-emption.

A detailed analysis of the FERC pre-emption issue with possible solutions was issued January 2010 by National Renewable Energy Laboratories (NREL) as “Renewable Energy in State-Level Feed-in Tariffs: Federal Law Constraints and Possible Solutions“ (online at  http://www.nrel.gov/docs/fy10osti/47408.pdf)

Several possible solutions have been presented to Oregon’s PUC Commissioners in parties’ Closing Comments (http://apps.puc.state.or.us/edockets/docket.asp?DocketID=15820).  A final decision on the pilot program design (AR538 and UM1452) was schedules to be made February 26th, but is now pending. On February 25th ALJ Patrick  Power issued a ruling that vacates the target date for a decision. (http://edocs.puc.state.or.us/efdocs/HDA/ar538hda161424.pdf)