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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Apline Energy, LLC v. Matanuska Electric Association (3/4/2016) sp-7085

Apline Energy, LLC v. Matanuska Electric Association (3/4/2016) sp-7085

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

ALPINE  ENERGY,  LLC,                                                 )  

                                                                      )     Supreme  Court  No.  S-15696  

                                Appellant,                           )  


                                                                      )     Superior Court No. 3AN-13-06239 CI  

           v.                                                         )  


                                                                      )     O P I N I O N  


MATANUSKA ELECTRIC                                                   )  


ASSOCIATION and the                                                                                            

                                                                      )    No. 7085 - March 4, 2016  


REGULATORY COMMISSION OF                                              )  

ALASKA,                                                               )  


                                Appellees.                            )  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, Michael Spaan, Judge.  


                      Appearances:  Robert K. Reiman, Law Offices of Robert K.  


                      Reiman,  Anchorage,  for  Appellant.                           David  J.  Mayberry,  


                      Crowell         &      Moring,          LLP,        Anchorage,            for     Appellee  


                      Matanuska  Electric  Association,  Stuart  W.  Goering  and  


                      Emma K. Pokon, Assistant Attorneys General, Anchorage,  


                      and  Craig  W.  Richards,  Attorney  General,  Juneau,  for  


                      Appellee Regulatory Commission of Alaska.  


                      Before:  Stowers, Chief Justice, Fabe, and Bolger, Justices.  


                      [Winfree and Maassen, Justices, not participating.]  


                      BOLGER, Justice.  

----------------------- Page 2-----------------------

I.          INTRODUCTION  

                       Federal  law  requires  electric  utilities  to  purchase  power  generated  by  


cogeneration facilities that meet certain standards and provides a method of calculating  


the purchase rate that the utilities must pay. To qualify for this treatment, a facility must  


be certified that it meets the standards.  It may self-certify, by filing a form describing  


the project and asserting that it believes it meets the standards, or it may request a formal  


determination  that  it  meets  the  standards.                               The  Regulatory  Commission  of  Alaska  


implements this certification scheme on the state level, but the determination whether a  


facility qualifies falls within exclusive federal jurisdiction.  


                       The main issue presented  in  this appeal is whether  a  self-certification  


constitutes a federal determination that a facility meets the standards and whether the  


Commission must defer to this self-certification.  We conclude that a self-certification  


does not constitute a federal determination and that the Commission's broad discretion  


to implement the federal scheme means it has the power to require a developer to  


formally certify its projects.  




            A.         Regulatory Background  


                       Congress enacted the Public Utility Regulatory Policies Act (PURPA) in  


 1978 to increase conservation  of energy, make electric utilities more efficient, and  


encourage equitable rates for electric customers.1                                       Section 210 of PURPA2   seeks to  


accomplish this by "encourag[ing] the development of cogeneration and small power  


            1          See  Public Utility Regulatory Policies Act of 1978 (PURPA), Pub. L. No.                                               

95-617, § 2, 92 Stat. 3117 (1978) (codified at 16 U.S.C. § 2601 (2012));                                                            FERC v.   

Mississippi, 456 U.S. 742, 746 (1982).                 

            2          PURPA § 210 (codified as amended at 16 U.S.C. § 824a-3).  


                                                                        -2-                                                                7085

----------------------- Page 3-----------------------


production facilities."               Cogeneration facilities produce electric energy along with some                              

other types of useful energy, such as heat.                         4                                                              

                                                                       PURPA encourages development of these  


facilities by requiring electric utilities to purchase electric energy from and sell electric  

                                                                                                                            5   and  by  



energy to "qualifying" cogeneration and small power production facilities, 

exempting these qualifying facilities from state and federal regulation as utilities.6  


                     PURPA charges the Federal Energy Regulatory Commission (FERC) with  


implementation,7  and directs state regulatory authorities to implement FERC's rules in  


turn.8       In  Alaska,  this  task  falls  to  the  Regulatory  Commission  of  Alaska  (the  



                     Under FERC's regulations implementing PURPA, "qualifying facilities"  


are facilities that both meet certain efficiency, operating, and use standards, and are  


               10   Facilities can become certified in two different ways: They may file a notice  


of self-certification with FERC, asserting that they meet the relevant standards, or they  


           3         FERC,  456  U.S.  at  750.  

           4          16  U.S.C.  §  796(18)(A).  

           5         Id .  §  824a-3(a).  

           6         Id .  §  824a-3(e).  

           7         Id .  §  824a-3(a).  

           8         See  id.  §  824a-3(f).  

           9          16  U.S.C.   §  796(15),  (21)  (defining  "[s]tate  regulatory  authority"  as  the  

regulatory  body  with  jurisdiction  over  "rates  and  charges  for  the  sale  of  electric  energy  

to  consumers");  AS 42.05.141  (granting the Regulatory  Commission of Alaska  authority  

to  regulate  public  utilities  and  their  rates  and  charges).  

           10         18 C.F.R. § 292.203(b) (2015).  


                                                                   -3-                                                             7085

----------------------- Page 4-----------------------


may  apply  to   FERC  for  certification.                  If  a  certified  facility  is  "substantial[ly]  alter[ed]  

                                                 12                                      13  

or  modifi[ed],"  it  must  recertify.               Self-certification  is  free,          while  formal  certification  


carries  a  filing  fee  of  $24,070  for  cogeneration  facilities.                     Other  parties  may  challenge  


a   self-certified   or   formally   certified   facility's   qualifying-facility status;                         a   challenge  

carries  a  filing  fee  of  $24,370.16  

                    FERC's   regulations   implementing  PURPA   also   control   the   rates   that  

utilities  must  pay  qualifying   facilities   for   energy.  Purchase  rates  must  not   exceed  the  

utility's   "avoided   costs,"17  

                                           which   are   "the   incremental   costs   to   an   electric   utility   of  

electric   energy   or   capacity   or   both   which,   but   for   the   purchase   from   the   qualifying  


facility   .   .   .  ,  such  utility  would  generate  itself  or  purchase  from  another source."                          In  

other  words,  the  utility  is  obligated  to  purchase  a  qualifying  facility's  energy,  but  it  is  not  

obligated   to  pay   any   more   for   that   energy   than   it  would  have  paid   if   it   obtained   the  

energy  from  a  different  source.    

          11        Id .  §  292.207.  The  parties  and  the  superior  court  all  refer  to  this  process  as  

"formal  certification."   We  adopt  this  terminology.   

          12        Id .  §  292.207(d)(2).  

          13        Id .  §  292.207(a).  

          14        Id .  §  381.505(a).  

          15        Id .  §  292.207(d).  

          16        Revisions  to  Form,  Procedures  and  Criteria  for  Certification  of  Qualifying  

Facility Status, 75 Fed. Reg. 15,950, 15,951 n.15 (Mar. 30, 2010) ("A motion seeking  


revocation requires a filing fee as a declaratory order."); 18 C.F.R. § 381.302(a) (listing  


the fee for filing declaratory order to challenge the certification).  

          17         18  C.F.R.  §  292.304(a)-(b);  see  also   16  U.S.C.  §  824a-3(b)  (2012).  

          18         18  C.F.R.  §  292.101(b)(6).  

                                                               -4-                                                         7085

----------------------- Page 5-----------------------

                      Because   potential   qualifying   facilities   and   investors   need   to   predict  

purchase rates to be able to estimate                            the return on a potential investment, FERC's                     

regulations require utilities to "make available data from which avoided costs may be                                                      

               19   These data are not the same as a purchase rate; rather, they are "the first step  


in the determination of such a rate."20  


           B.         Facts  

                      In May 2008, Alpine Energy self-certified five proposed cogeneration  


facilities.  Only two of these facilities are at issue in this case:  Pioneer Energy #1, later  


renamed "Goose Creek Energy Project," and Pioneer Energy #4, later renamed "Pioneer  


Energy Project."  Alpine anticipated selling the thermal energy from Pioneer Energy #1  


to local businesses, residences, and greenhouses for the purpose of space heating.  It  


intended to sell the thermal energy from Pioneer Energy #4 to the Alaska State Fair and  


to  various  commercial  customers  and  greenhouses,  again  for  the  purpose  of  space  




                      Shortly after filing the notices of self-certification, Alpine requested the  


local electric utility, Matanuska Energy Association (MEA), to interconnect with its  


facilities - that is, to physically connect the cogeneration facilities with MEA's utility  


network to facilitate the purchase of electric energy.21                                    Alpine also requested MEA to  


provide certain avoided-cost information required by the Commission's regulations, and  


to open good-faith negotiations for the purchase of power from Alpine's facilities.  


           19         Id .  §  292.302(b).  

           20         Small    Power    Production    and    Cogeneration   Facilities;    Regulations  

Implementing  Section  210  of  PURPA,  45  Fed.  Reg.   12,214,   12,218  (Feb.  25,   1980).  

           21         See   18  C.F.R.  §  292.101(b)(7)  (defining  "[i]nterconnection  costs"  as  "the  

reasonable  costs  .  .  .  directly  related  to  the  installation  and  maintenance  of  the  physical  

facilities  necessary  to  permit  interconnected  operations  with  a  qualifying  facility").  

                                                                     -5-                                                              7085

----------------------- Page 6-----------------------

                         UnderAlaskaregulations,aqualifyingfacility's                                             request for interconnection     

triggers a 60-day period within which the utility must provide the qualifying facility with                                                                 

                                                                                                                           22   Accordingly, in its  

a tariff setting out rates for interconnection, purchases, and sales.                                                                                           

reply to Alpine, MEA requested certain engineering information from Alpine that it  


stated was necessary to determine the costs of interconnection. MEA also stated that the  


avoided-cost information Alpine had requested was available in its then-effective tariff,  


on file with the Commission.  


                         Alpine  did  not  provide  the  requested  engineering  information  in  its  


response.  Instead, Alpine reiterated its request to enter negotiations for the purchase of  


energy.  As a result, MEA filed a petition with the Commission requesting a waiver of  


the 60-day period.  Alpine did not oppose the petition, and the Commission granted the  


waiver, suspending MEA's obligations under 3 AAC 50.790(b) "until at such time as it  


voluntarily provides the interconnection to [Alpine] or until in a future order, in response  


to a filing by [Alpine] or otherwise, we revoke the waiver, whichever first occurs."  


                         Alpine  and  MEA  continued  to  correspond  about  negotiating  power  


purchase agreements.   The discussions focused on two of the projects that Alpine had  


initially proposed: Pioneer Energy #4, to be sited at the Alaska State Fair, and the Goose  


CreekEnergy Project (formerly PioneerEnergy #1), intendedto provideheat and electric  


energy for the Goose Creek Correctional Facility.23  


                         At the outset, MEA expressed doubts about the qualifying-facility status of  


Alpine's  projects  and  about  Alpine's  ability  to  successfully  develop  them.                                                                      MEA  


specifically  mentioned  Alpine's history  of proposing  cogeneration  projects without  


             22          3  Alaska  Administrative  Code  (AAC)  50.790(b)  (2015).  

             23          The  record  does  not  show  when  Alpine  began  planning  a  project  at  Goose  

Creek.   None  of  its  initial  self-certifications  describe  such  a  project.   From  this  point  on,  

though,  this  project  is  clearly  a  subject  of  negotiations  with  MEA.  

                                                                               -6-                                                                        7085

----------------------- Page 7-----------------------


commitments for the purchase of thermal energy.   The parties disputed the projects'  


qualifying-facility status for several months.  In May 2009, however, Alpine provided  


MEA with letters of interest from two potential thermal energy customers, or thermal  


hosts - the Alaska State Fair and the Department of Corrections.  MEA subsequently  


agreed to begin negotiations with Alpine for the purchase of electric energy.  


                    Alpine sent MEA a draft power purchase agreement for the Goose Creek  


project in June  2010,  but the parties did not negotiate the terms of the agreement.  


Instead, in August 2010, Alpine and MEA entered into "Precedent Agreements" for the  


projects at issue here. Under these agreements, negotiations were halted, and Alpine was  


required to meet certain conditions before negotiations would resume.  The agreements  


required Alpine to obtain binding contractual commitments for the sale of the thermal  


energy that its proposed projects would produce, receive commitments for all financing  


necessary to construct and operate the projects, and obtain all permits, authorizations,  


and rights needed to construct and operate the projects.  If Alpine met the conditions by  


December 31, 2011, the parties agreed to negotiate power purchase agreements. If  


Alpine did not meet the conditions by that date, the agreements would terminate.  


                    While it was communicating with Alpine, MEA was also planning its own  


power generation project, the Eklutna Generation Station.   It put out a Request for  


Proposals in October 2009, seeking contractors for the project.  And in March 2011,  


MEA signed a contract committing to the first stage of the project.  


                    In December 2011, Alpine self-recertified the Pioneer and Goose Creek  


projects, and again requested interconnection fromMEA. The recertifications stated that  


both projects would sell the bulk of their thermal energy to Mat-Su Produce. According  

                                                               -7-                                                         7085

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to Alpine, Mat-Su Produce was to be an Alpine subsidiary that operated greenhouses.                                                                                                         


The Pioneer project would sell the remainder of its thermal energy to the Alaska State  


Fair, the City of Palmer, Matanuska-Susitna Borough Schools, and other commercial  


customers, and the Goose Creek project would sell the remainder of its energy to Valley  


Utilities and other commercial customers.  


                             At the same time that it self-recertified, Alpine also informed MEA that the  


conditions of the precedent agreements had been met and requested to begin negotiating  


power purchase agreements. Along with its request, Alpine provided MEA with copies  


of agreements with potential thermal hosts and with copies of agreements with broker- 


dealer FirstSouthwest for  debt placement services.   MEA responded that it did not  


believe the conditions were met; in particular, it noted that Alpine had obtained no  


financing  commitments  and  had  not  obtained  Commission  authorization  for  either  


project.  On January 9, 2012, MEA informed Alpine that it considered the precedent  


agreements terminated because Alpine had failed to meet the conditions precedent by the  



              24             Mat-Su Produce was not registered to do business in Alaska by the time of                                                                                

the administrative proceedings, and still is not.                                                          Search Business License Database                                              ,  

DEP 'T    OF    COMMERCE,    CMTY.,    &    ECON.    DEV.,   

/cbp/MAIN/CBPLSearch.aspx?mode=Bl (showing no search results when searching                                                                                          

"Business Name" for "Mat-Su Produce" and "Mat Su Produce") (last visited Feb. 16,                                                                                                  


                                                                                          -8-                                                                                  7085

----------------------- Page 9-----------------------

          C.        Proceedings  


                     1.       Administrative proceedings  


                    On  February  13,  2012,  Alpine  filed  a  formal  complaint  with  the  



                        asserting  that MEA had  failed  to  comply  with  its obligations under  


PURPA and its implementing regulations.  Alpine requested relief in the form of (1) an  


order for MEA to provide the avoided-cost information required by 3 AAC 50.790(d),  


including the data and methodology used to derive those costs; (2) a declaratory order  


that MEA may not refuse to negotiate with Alpine based on doubts as to the validity of  


its projects' qualifying-facility status; (3) an order for MEA to enter into negotiations to  


purchase power from Alpine's facilities; (4) an order for MEA to set the rates for those  


purchases   based   on   its   avoided   costs   at   the   time   Alpine   initially   requested  


interconnection; and (5) an order that those avoided costs should include the costs of the  


Eklutna Generation Station, or in the alternative an order enjoining MEA from incurring  


any additional expenses to add capacity.  


                    MEA denied the allegations in the formal complaint and moved to dismiss.  


It challenged Alpine's claim that it had met the terms of the precedent agreements,  


pointing out that Alpine's agreements with thermal hosts were expressly contingent on  


the negotiation  of a power  purchase agreement, and  were  therefore not binding as  


required by the precedent agreements.  It also highlighted the highly speculative nature  


of  both  projects'  primary  thermal  host,  Mat-Su  Produce.                                And  it  pointed  out  that  


FirstSouthwest had not agreed to finance Alpine's projects; instead, it had agreed to act  


as a placement agent for any bonds issued by Alpine or its projects, but left it up to  


Alpine to actually issue such bonds or obtain other financing.  



                    See  3 AAC 48.130  (listing the Commission's procedures  for filing and  


investigating formal complaints).  

                                                                -9-                                                             7085  

----------------------- Page 10-----------------------

                                   Accordingly,   MEA   argued,   the   Commission   should   require   Alpine   to  

formally certify its projects as qualifying facilities before enforcing rights dependent on                                                                                                                                

their qualifying-facility status. MEA asserted that Alpine's failure to meet the precedent                                                                                                              

agreements, and the facts underlying its failure, raised legitimate questions about its                                                                                                                                   

projects' qualifying-facility status, which should be resolved by FERC in the formal                                                                                                                            

certification   process.     MEA   also   claimed   it   had   already   provided  Alpine   with   the  

required avoided-cost information, and that the Commission's waiver of its obligation   

to provide the information required by 3 AAC 50.790(b) was still valid.                                                                                                      

                                   The Commission dismissed Alpine's claim in part on July 20, 2012.                                                                                                                        It  

                                                                                               26  Alpine's claim of entitlement to a tariff under  

found no good cause to investigate                                                                                                                                                                                

3 AAC 50.790(b) because its earlier waiver of that requirement had not been rescinded.  


The Commission also determined that it did have the authority to require Alpine to  


obtain formal certification if there was a legitimate claim that the merits of a qualifying  


facility's self-certification were questionable.   It decided that MEA asserted such a  


legitimate claimhere, and dismissed without prejudice Alpine's claims that depended on  


its projects' qualifying-facility status, instructing Alpine that it could refile its claims  


after obtaining formal certification.  


                                   The Commission did, however, find good cause to investigate whether  


MEA                 was             in        compliance                          with             the          information-publication                                             requirements                            of  


3 AAC 50.790(d). MEA had provided only an average of its avoided costs over the next  


five years, instead of a year-by-year projection as required.   The Commission also  


expressed concern that MEA's avoided-cost calculations did not consider any part of its  


recent Eklutna Generation Station project avoidable, although MEA had committed to  


                 26                See   3 AAC 48.130(f) ("A formal investigation will not be instituted on                                                                                                               

complaint,   except for                                    good cause shown                                     to   the [C]ommission's satisfaction                                                           by   the  


                                                                                                           -10-                                                                                                     7085

----------------------- Page 11-----------------------


the project only after its communications with Alpine.  Finally, the Commission noted  


that it was unclear whether MEA actually "maintained" the information as required, or  


simply generated it upon request.  


                    On August 23, 2012, MEA filed a Notice of Compliance, informing the  


Commission   that   it   had   made   publicly   available   all   information   required   by  


3 AAC 50.790(d).  


                    The parties both moved for summary judgment on this remaining issue.  


Alpine argued that it was entitled to the avoided-cost information as of May 2008, the  


time of its initial request for interconnection.  In particular, Alpine focused on the cost  


of the Eklutna Generation Station, which MEA had not yet committed to build when  


Alpine originally requested interconnection.  If MEA had agreed to purchase energy  


from Alpine at that time, Alpine argued, MEA would not have had to build as much  


additional capacity.   Alpine claimed that the costs incurred to build that additional  


capacity were therefore avoidable, and should be included in the purchase rates for  


Alpine's electric energy.  Alpine also argued that 3 AAC 50.790(d) required MEA to  


provide the data and methodology underlying its avoided-cost information, and that  


MEA had not done so.  


                    In MEA'smotion for summary judgment, it directed the Commission to the  


information it had made available in August 2012, in accordance with its Notice of  


Compliance.              MEA   claimed   that   this   information   was   in   compliance   with  


3 AAC 50.790(d), and that the regulation did not require it to make public the underlying  


data  and  methodology.                 It  acknowledged,  however,  that  it  had  not  published  this  


information prior to August 23, 2012, instead providing it only upon request.  It denied  


that the Eklutna Generation Station was an avoidable cost, or that Alpine was entitled to  


a purchase rate based on historic avoided costs.  It also pointed out that the Commission  


had already decided that Alpine must obtain formal certification for its projects before  

                                                              -11-                                                         7085

----------------------- Page 12-----------------------

they were entitled to                                                                 any  purchase rate, and that the historic avoided-costs issue was                                                                                                                                                                            

therefore outside of the scope of the proceedings.                                                                                                                                                  

                                                     The Commission agreed with MEA that the only remaining issue was                                                                                                                                                                                                             

whether   MEA's   publicly   available   information   was   currently  in   compliance   with  

3 AAC 50.790(d).                                                          It found that MEA was fully in compliance, and that it did not need                                                                                                                                                                                   

to    supply    the    data    and    methodology    underlying    its    avoided-cost    calculations.   

Accordingly, the Commission denied Alpine's motion for summary judgment, granted                                                                                                                                                                                                                                     

MEA's cross-motion for summary judgment, and closed the docket.                                                                                                                                                                                                              

                                                    2.                         Superior court proceedings                                     

                                                    Alpine appealed the Commission's decision to the superior court.                                                                                                                                                                                                 Alpine  

argued that the Commission lacked the power to require it to formally certify its projects                                                                                                                                                                                                                          

before requiring MEA to treat the projects as qualifying facilities.                                                                                                                                                                                                             Instead, Alpine   

claimed, the Commission should have required MEA to provide a specific tariff for each                                                                                                                                                                                                                                           

of Alpine's projects, and to purchase electric energy from these projects at a rate based                                                                                                                                                                                                                                   


on the avoided costs at the time it filed the Formal Complaint.                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                      Even if the Commission  


was authorized to require formal certification, Alpine argued, it should have held an  


evidentiary  hearing  before  doing  so.                                                                                                                      Alpine  also  reiterated  its  arguments  that  the  


Commission's regulations require utilities to publish a general qualifying facility tariff  


andto providethedataand methodology underlying theirpubliclyavailableavoided-cost  




                                                     The superior court affirmed the Commission in full.   It found that the  


Commission interpreted its own regulations reasonably in finding it had the authority to  

                          27                        Alpinehad                                   argued beforetheCommission                                                                                             that it wasentitled to a rate based                                                                   

on the avoided costs as of May 2008, when it first requested interconnection.                                                                                                                                                                                                                                           In the   

 superior court, and in the present appeal, it argues instead that it is entitled to a rate based                                                                                                                                                                                                                            

on the avoided costs "no later than the filing of the Formal Complaint."                                                                                                                                                                                                                  

                                                                                                                                                                  -12-                                                                                                                                                          7085

----------------------- Page 13-----------------------

require  formal  certification,  and  that  it  properly  exercised  such  authority  here.   It  found  

that  no  evidentiary  hearing  was  necessary  because  the  Commission  simply  determined,  

based  on  the  facts  alleged  by  Alpine,  that  no  good  cause  existed  to  open  an  investigation.   

And  it  found  that  the  Commission  reasonably  interpreted  its  regulations  to  contain  no  

general  tariff  or  data-and-methodology  requirement.   Alpine  now  appeals.   


                   "In   an   administrative   appeal  we   independently  review   the  merits   of  the  


agency's  decision."            We  apply  the  "reasonable  basis"  test  to  the  Commission's  decision  


not   to   conduct   an   investigation.             Under   the   deferential   "reasonable   basis"   test,   we  

consider  whether  the  agency's  decision was "arbitrary,  capricious, or unreasonable,"30  

and  whether  the  agency  "[took]  a  hard look  at  the  salient  problems a   nd   .   .  .  genuinely  

engaged  in  reasoned  decision  making."31  

                   "We  review   an   agency's   interpretation   of   its   own  regulations  under  the  


reasonable  and  not  arbitrary  standard"                 when  the  agency's  interpretation  "implicate[s]  

special  agency  expertise  or  the  determination  of  fundamental  policies  within  the  scope  

          28       Luper  v.  City  of  Wasilla,  215  P.3d  342,  345  (Alaska  2009)  (citing  Griswold  

v.  City  of  Homer,  55  P.3d  64,  68  (Alaska  2002);  Balough  v.  Fairbanks  N.  Star  Borough,  

995  P.2d  245,  254  (Alaska  2000)).   

          29       Jager v. State, 537 P.2d 1100, 1107 (Alaska 1975).  


          30        Denali  Citizens Council v. State, Dep't of Nat. Res., 318 P.3d 380, 385  


(Alaska 2014) (quoting Ninilchik  Traditional Council v. Noah, 928 P.2d  1206, 1213  


(Alaska 1996)).  


          31       Id. (quoting Kachemak Bay Conservation Soc'y v. State, Dep't of Nat. Res.,  


6 P.3d 270, 275 (Alaska 2000)).  


          32       Stosh's I/M v. Fairbanks N. Star Borough,  12 P.3d  1180, 1183 (Alaska  


2000) (citing Handley v. State, 838 P.2d 1231, 1233 (Alaska 1992)).  


                                                            -13-                                                       7085

----------------------- Page 14-----------------------


 of the agency's statutory function."                                    This "deferential standard of review properly                          

recognizes that the agency is best able to discern its intent in promulgating the regulation                                                  

                 34  "We will affirm the agency's interpretation under this deferential standard  

 at issue."                                                 

 if the agency's interpretation is a reasonable one."35  


                         However, "[t]he 'substitution of judgment' test is the appropriate standard  


 for  interpreting  regulations  .  .  .  when  the  agency  interpretation  does  not  concern  



 administrative expertise as to either complex subject matter or fundamental policy."                                                                             


 Questions  of  statutory  interpretation  are  also  reviewed  under  the  "substitution  of  


judgment" test unless the agency's "interpretation of law turns on its technical expertise  


 or  'the  determination  of  fundamental  policies  within  the  scope  of  [its]  statutory  


 function.' "37  


IV.	         DISCUSSION  


             A.	         The  Commission  May  Require  Alpine  To  Formally  Certify  Its  



                         1.	         Federal law does not prohibit the Commission from requiring  


                                     formal certification.  

             33          Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co.                                                , 746 P.2d 896, 903  

 (Alaska 1987).   

             34          Stosh's I/M, 12 P.3d at 1183 (quoting Rose v. Commercial Fisheries Entry  


 Comm'n, 647 P.2d 154, 161 (Alaska 1982)).  


             35          Anderson v. State, Dep't of Revenue , 26 P.3d 1106, 1109 (Alaska 2001)  


 (citing Handley, 838 P.2d at 1233).  


             36          Borkowski v. Snowden, 665 P.2d 22, 25 (Alaska 1983) (citing Rose, 647  


P.2d at 161).  


             37          W. States Fire Protection Co. v. Municipality of Anchorage, 146 P.3d 986,  


 989 (Alaska 2006) (quoting Tesoro, 746 P.2d at 903).  


                                                                            -14-	                                                                     7085

----------------------- Page 15-----------------------

                              Alpineargues that FERChas                                      exclusivejurisdictiontodeterminequalifying-                                 

facility status, and that it has done so here by accepting the self-certifications.                                                                                          It claims   

that the Commission must therefore defer to this determination and accept Alpine's self-                                                                                                

certifications as conclusive evidence of the projects' qualifying-facility status.                                                                                              

                              Neither Congress nor FERChasdirectlyaddressedthisissue. PURPAitself                                                                                      

                                                                                                  38  and delegates implementation to FERC.39  

simply sets standards for qualifying facilities                                                                                                                                                    

FERC's regulations set up the certification system, but do not specify whether state  


regulators and others must treat self-certification as conclusive evidence of qualifying- 


facility status, or if they must give any deference at all to a self-certification.40  FERC has  


suggested in its orders that state regulators may require formal certification, but it has  


never expressly ruled on this point.41  


                              It is clear, however, that FERC granted states significant discretion in  


implementing and enforcing its regulations.  FERC's regulations implementing section  


210 of PURPA "afford the State regulatory authorities . . . great latitude in determining  


the manner of implementation of [FERC's] rules, provided that the manner chosen is  


               38             16  U.S.C.  §  796(18)(B)  (2012).   

               39            Id.  §  824a-3(n).  

               40             18  C.F.R.  §§  292.203,  .205,  .207  (2015).  

               41             See   Chugach  Elec.  Ass'n ,   121  FERC  61,287  ¶  21  (2007)  ("[T]here   [are]  

reasons  that  a  [qualifying  facility]  may  want  or  need  [formal]  certification  (including  the  

requirement   of   some   lenders,   utilities,   or   state   regulators   that  a   generator   seeking  

[qualifying  facility]  status  and  the  benefits of  PURPA  be   [formally]  certified)   .   .   .   .");  

Revisions   to   Form,   Procedures,   and   Criteria   for   Certification   of   Qualifying   Facility  

Status,  75  Fed.  Reg.   15,950,   15,951  (Mar.  30,  2010).  

                                                                                            -15-                                                                                      7085

----------------------- Page 16-----------------------


                                                                                                      Subpart Cregulates     

reasonably designed to implement the requirements of Subpart C." 


sales   and   purchases   between   qualifying   facilities   and   utilities,                                  

                                                                                                        and  includes  the  

                                                                                                    44  FERC specifically  



obligation for utilities to purchase energy from qualifying facilities. 

contemplates state implementation by regulation as well as by case-by-case dispute  



                    It is also clear that FERC has exclusive jurisdiction over determinations of  


qualifying-facility  status  and  that  states  may  not  make  such  determinations.                                           In  


Independent Energy Producers Ass'n v. California Public Utilities Commission, the  


Court of Appeals for the Ninth Circuit invalidated a California regulatory scheme that  


permitted  utilities  to  unilaterally  decide  that  qualifying  facilities  with  whom  they  


contracted, including formally certified qualifying facilities, no longer met the federal  


                                                     46  The state regulations permitted utilities to reduce  

operating and efficiency standards.                                                                                       


the purchase rates for those facilities by 20% instead of paying the full avoided-cost rate  


                                                                47  The court invalidated the scheme, holding  

to which they would otherwise be entitled.                                                                              


          42        Small    Power    Production    and    Cogeneration    Facilities;    Regulations  

Implementing  Section  210  of  PURPA,  45  Fed.  Reg.  12,214,  12,230-31  (Feb.  25,  1980).  

          43         18  C.F.R.  §  292.301(a).  

          44        Id .  §  292.303(a).  

          45        Small    Power    Production    and    Cogeneration    Facilities;    Regulations  

Implementing   Section  210   of  PURPA,  45  Fed.  Reg.   at   12,231; FERC  v.  Mississippi,  

456  U.S.  742,  751  (1982).  

          46        36 F.3d 848, 858 (9th Cir. 1994).  


          47        Id . at 852.  


                                                              -16-                                                         7085

----------------------- Page 17-----------------------

that   PURPA   required   a   federal   decision   maker  applying   uniform   standards   for   all  


determinations of qualifying-facility status.                            

                     Alpine  claims  that  its  self-certifications  mean  that  FERC  has  already  


determined its projects' qualifying-facilitystatusandthat theCommission impermissibly  


disregarded that determination and made a determination of its own. We must therefore  


decide whether self-certifications constitute determinations of qualifying-facility status  


by  FERC,  or  whether  the  Commission's  decision  not  to  enforce  Alpine's  asserted  


PURPA rights at this time is itself an impermissible determination of qualifying-facility  




                     Self-certification alone does not create a qualifying facility; under FERC's  


regulations,  a  cogeneration  facility  is  a  qualifying  facility  only  if  it  meets  certain  


                                                                                                                         49   FERC  

standards and is certified, either by self-certification or formal certification.                                             


does not formally review self-certifications; rather it examines the filing "to determine  


that the self-certifier has provided the information required by the regulations," but it  


does not check the accuracy of that information or determine whether the information  


provided, if accurate, demonstrates qualifying-facility status.50  And when FERCaccepts  


notices of self-certification from project owners, it specifically informs the owner that  


"[a]cceptance for filing does not constitute approval of any application or self-certifying  




                     Alpine's assertion that FERC determined that "its projects as described [in  


its self-certifications] were valid [q]ualifying [f]acilities" is therefore incorrect.  Alpine  


           48        Id .  at  854.  

           49        18  C.F.R.  §  292.203(b).   

           50        Revisions  to  Form,  Procedures,  and  Criteria  for  Certification  of  Qualifying  

Facility  Status,  75  Fed.  Reg.   15,950,   15,951  (Mar.  30,  2010).   

                                                                 -17-                                                           7085

----------------------- Page 18-----------------------

made   that   determination;   FERC   simply   verified   that   Alpine   filled  out  the   self- 

certification form correctly.                                     FERC has also made clear in a different context that "no                                                                   

[FERC] determination or approval attaches to a self-certification" because "no [FERC]                                                                                              

action is required or even contemplated."                                                     51  

                               Self-certifications are therefore not determinations of qualifying-facility  


status within the meaning of Independent Energy Producers .  The court in that case  


relied  on  PURPA's  definition  of  a  qualifying  facility  as  a  facility  that  "[FERC]  


determines, by rule, meets such requirements . . . as [FERC] may, by rule, prescribe."52  


It also highlighted a passage from PURPA's legislative history stating that qualifying  


facilities were to be "identified through [FERC] action."53                                                                            But as FERC has expressly  


stated, it takes no action on self-certifications, and it does not determine whether a self- 


certified facility meets the substantive requirements.  


                              Nor did the Commission make any determination of its own here. Instead,  


it recognized that no determination has yet been made and that a determination from  


FERC will likely be needed to settle the dispute between the parties.  The Commission  


did refer to the standards for qualifying-facility status, but it did not determine whether  


Alpine's projects met those standards; instead, it assessed the likelihood that FERC  


               51              Chugach Elec. Ass'n                            , 121 FERC 61,287 ¶ ¶ 53-54 (2007) (explaining why                                                            

no filing fees attach to a self-certification);                                                      see also id.                  at ¶ 31 ("[FERC] staff's not                              

issuing a deficiency letter to a self-certified facility does not constitute a finding as to any                                                                                             

matter contained in such a self-certification.").            

               52             Indep. Energy Producers, 36 F.3d at 854 (omission in original) (quoting  


 16 U.S.C. § 796(18)(B)(I) (2012) (emphasis added)).  


               53             Id .  (quoting  H.R.  Conf.  Rep.  No.  1750  at  89,  reprinted  in   1978  


U.S.C.C.A.N. 7659, 7797, 7823 (1978) (emphasis added)).  


                                                                                              -18-                                                                                       7085

----------------------- Page 19-----------------------

would consider the projects qualifying facilities, and on that basis, allocated the cost of                                                                                                                         

obtaining a FERC determination to Alpine.                                                                     

                                 Neither FERC nor the Commission has determined the qualifying-facility                                                                    

status of Alpine's projects, and federal law does not otherwise prohibit the Commission                                                                                                  

from requiring self-certified qualifying facilities to formally certify. This authority falls                                                                                                                 

well within the Commission's "great latitude" to implement PURPA's power purchase                                                                                                                 

                                  54  As aresult,the Commission neednot defer to Alpine's self-certifications  


and has the authority to require Alpine to obtain formal certification of its projects from  


FERC before requiring MEA to treat them as qualifying facilities.55  


                                 2.	              It  was  reasonable  for  the  Commission  to  require  formal  


                                                  certification here.  


                                  The Commission determined that "legitimate concerns" about Alpine's  


projects' qualifying-facility status exist and that therefore no good cause existed to open  


an investigation, based on three factors: (1) the lack of commitments from thermal hosts  


and the conditional nature of agreements with potential thermal hosts; (2) the lack of  


infrastructure to deliver thermal energy; and (3) "the speculative nature of Alpine['s] . . .  


largest host, Mat-Su Produce."  


                                 Alpine argues that the Commission's conclusion was unreasonable, but it  


does not actually address any of the bases for the Commission's decision.  Instead, it  


argues that these circumstances came to pass only because of MEA's failure to provide  


avoided-cost  information,  which  made  it  impossible  to  "firm up  the  financing  and  


                 54               Small              Power               Production                       and          Cogeneration   Facilities;                                          Regulations  

Implementing Section 210 of PURPA, 45 Fed. Reg. 12,214, 12,230. (Feb. 25, 1980).                                                                                                                                       

                 55              Alpine argued before the superior court that the Commission incorrectly  


interpreted its own regulations to permit requiring formal certification.  It did not raise  


this argument in this appeal, so we treat it as waived and do not address it.  


                                                                                                       -19-	                                                                                                7085

----------------------- Page 20-----------------------

contractual commitments necessary to proceed" with developing the projects.                                                                                                               Alpine  

also   argues   that   the   standard   applied   by   the   Commission   - "legitimate                                                                                            concerns"  

regarding qualifying-facility status - was unreasonable.                                                                                

                               Alpine first argues that MEA thwarted the development of its projects by                                                                                               

failing to provide the required avoided-cost information and that, as a remedy, MEA                                                                                                            

should be compelled to treat Alpine's projects as qualifying facilities.                                                                                                      Instead, the   

Commission    decided    to    enforce    the    avoided-cost    disclosure    requirement    only  

                                 56      Although the Commission did not explain why it made this choice,  


Alpine does not argue that its proposed remedy was the Commission's only option. The  


Commission could reasonably  have decided that the potential cost to ratepayers of  


forcing MEA to contract with Alpine before it received formal certification outweighed  


any benefit.  


                               Whatever the reasons for the speculative nature of Alpine's projects, the  


Commission's actual concerns about the projects were reasonable.                                                                                                    Alpine produced  


agreements with two thermal hosts, but those agreements were conditioned on Alpine  


contracting with MEA for the sale of electric energy.  There is no evidence that Alpine  


had obtained any commitments, even conditional ones, from its other potential thermal  


hosts, and many of these hosts were the same as or similar to proposed hosts for prior  


decertified projects.  In addition, there was no existing infrastructure to deliver thermal  


energy to customers.  And there is no evidence that the largest proposed thermal host,  


Mat-Su Produce, had any plans to do business in Alaska.  


                56             FERC does impose penalties on utilities for failure to provide the avoided-                                                                             

cost information required by 18 C.F.R. § 292.302, which 3 AAC 50.790(d) mirrors.                                                                                                                   See  

 18   C.F.R.   §§   292.302,   292.401   (2015).   Alpine   did   not  seek  this   remedy   in   the  

proceedings before the Commission.                      

                                                                                                 -20-                                                                                           7085

----------------------- Page 21-----------------------

                    In  2007,  FERC  decertified  two  proposed  projects  very  similar  to  those  that  


Alpine  now  proposes.                In  its   order,  FERC   found  that  the  project  developer  "simply  

ha[d]  not  provided  sufficient  basis  for  [FERC]  to  conclude  that  the  thermal  uses  .  .  .  will  


materialize."           It  declined  to  "assume  that  [the  developer's]  optimistic  projections  will  


come  true,"         and noted  that  the  proposed  thermal  hosts,   as  well  as  the  infrastructure  


required  to  actually  provide  thermal  energy,  did  not  exist  in  Southcentral  Alaska.                                  As  

a  result,  it  could  not  conclude  that  the  thermal  energy  would  be  put  to  a  "productive  and  


beneficial  purpose,"              or  that  the  projects  had   any  purpose   other than selling   electric  

energy  to  a  utility.62  

                    Alpine's    projects    share    these    characteristics.       There    was    still    no  

infrastructure in place in  the  region  to  provide  thermal  energy,  its  projects had no firm  

thermal  hosts,  and  the  largest  proposed  thermal  host  -  Mat-Su  Produce  -  did  not  yet  

exist.63   Although there are differences - for example, most of the decertified projects'  


          57        Chugach  Elec.  Ass'n ,   121  FERC  61,287  (2007).  

          58        Id .  at  ¶  39.  

          59        Id .  at  ¶  40.  

          60        Id .  at  ¶  39.  

          61        Id .  at  ¶  40.  

          62        Id .  at  ¶  46.  

          63        See  Search Business License Database,  DEP 'T  OF  COMMERCE,  CMTY.,  &  



(showing  no  search  results  when  searching  "Business  Name"  for  "Mat-Su  Produce"  and  

"Mat  Su  Produce")  (last  visited  Feb.   16,  2016).  

                                                              -21-                                                         7085

----------------------- Page 22-----------------------

thermal hosts were unnamed,64 while Alpine did identify most of its projects' hosts -   

it was reasonable for the Commission to conclude that the similarities raised legitimate                                                                                                                                                                                                                                                       

concerns that Alpine's projects would not meet the qualifying facility standards.                                                                                                                                                                                                                                  

                                                           Finally, Alpine contests the standard applied by the Commission - that if                                                                                                                                                                                                                                                

"legitimate concerns" exist about the projects' qualifying-facility status, there is no good                                                                                                                                                                                                                                                                         

cause to open an investigation.                                                                                                         It argues that this standard requires Alpine to "establish                                                                                                                                             

that the presently recognized validity of its projects cannot later be challenged," and that                                                                                                                                                                                                                                                                               

"[t]he mere existence of legitimate concerns about the validity of the projects[' self-                                                                                                                                                                                                                                                                               

certifications] does not support the conclusion that [good] cause does not exist."                                                                                                                                                                                                                                                                            It also   

asserts that the Commission's "good cause" standard "must be read very broadly in an                                                                                                                                                                                                                                                                                            

action to enforce PURPA rights."                                                                                                                       

                                                           We addressed the Commission's "good cause" standard in                                                                                                                                                                                                          Jager v. State                                                ,  

and held:                                 "[T]he Commission is not compelled to act by the mere filing of a complaint                                                                                                                                                                                                                      

nor can the [C]ommission arbitrarily deny relief to a [party] who can demonstrate a                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                   65              We  did  not  define  "sufficient  

 sufficient   probability   that   his   complaint   is   valid."                                                                                                                                                                                                                                                                          

probability," however; instead, we noted the Commission's "discretionary authority to  


consider complaints and undertake . . . investigations,"66   and we listed a number of  


factors that the Commission may take into account when deciding whether to open an  


investigation:                                                        "[T]he  [C]ommission  must  be  free  to  weigh  the  charges  and  data  


                             64                            Chugach Elec. Ass'n                                                                         , 121 FERC 61,287 ¶ 33.                                                                   

                             65                            537 P.2d 1100, 1108 (Alaska 1975).                                                                                                



                                                          Id . at 1106.  

                                                                                                                                                                                     -22-                                                                                                                                                                             7085

----------------------- Page 23-----------------------

presented and the costs to the public and the utility . . . to determine whether further                                              

proceedings are in the public interest."                         67  

                      The Commission first articulated the "legitimate concerns" standard in a  


                             68   There, it found that the "legitimate questions" about a self-certified  

2009 proceeding.                                                                                                             


project's qualifying-facility status meant that "it [was not] in the public interest . . . to  


proceed on this complaint until the validity of [the project's] re-self-certification is  


known."69            It  particularly  noted  that  "the  project  owner,  who  possess[ed]  al[l]  the  


pertinent information about [t]he project and [stood] to profit from the project," was in  


the best position to obtain a FERC ruling on the project's status.70                                                  In its brief, the  


Commission reiterates this point and points out the potential cost to ratepayers if MEA  


is required to assume the cost of challenging a project's qualifying-facility status in every  




                      The Commission's interpretation of its "good cause" standard is entirely  


reasonable.  It could have come to a different conclusion - for example, by adopting  


Alpine's  argument  that  the  "strong  public  interest  in  seeing  cogeneration  projects  


developed" dictates a more forgiving standard for questionable qualifying facilities. But  


           67         Id .  

           68         KAPP, LLC v.  Municipal  Light  & Power,  Docket U-09-067(1), Order  No. 1  

(Regulatory  Comm'n  of  Alaska  Aug.   19,  2009).  

           69         Id .  at  6.  

           70         Id .  

           71         As  the  Commission  points  out,  encouraging  cogeneration  projects  is  not  the  

only   purpose   of   PURPA;   it   was   also   intended   to   ensure   "equitable   rates   to   electric  

consumers."    16  U.S.C.  §  2611  (2012).    

                                                                     -23-                                                               7085

----------------------- Page 24-----------------------


the Commission has significant discretion over whether to initiate an investigation,                                                                                                                   and  

in this case it has determined that when legitimate concerns exist regarding a project's                                                          

qualifying-facility status, the public interest is best served by allocating the costs of                                                                                                                  

obtaining a FERC ruling to the project owner, rather than to the utility.                                                                                                      This decision  

was reasonable and within the Commission's discretion to make.                                                                                               73  


                                3.	             The  Commission  was  not  required  to  hold  an  evidentiary  



                                AlpinearguesthattheCommission should haveheld an evidentiary hearing  


before deciding, on the basis of the evidence before it, that no good cause existed to open  


an investigation.   Alpine cites no support for this position, but asserts that "[i]f the  


Commission is going to weigh . . . evidence . . . , it must give Alpine an opportunity to  


present evidence and challenge the statement[s] of the utility in an evidentiary hearing."  


But the Commission's procedures do not provide any right to an evidentiary hearing on  



whether good cause exists to open an investigation.                                                                             Instead, the Commission must act  


"when a complainant brings evidence before it amounting to probable cause . . . that [his  



complaint is valid]."                                    Here, the Commission simply determined that Alpine had not  


presented evidence sufficient to justify opening an investigation.  It was not required to  


hold an evidentiary hearing before making this determination.  

                72	             Jager, 537 P.2d at 1106.                      

                73              Because we affirmthe Commission's decision to dismiss without prejudice                                                                                    


all of Alpine's claims that depend on the qualifying-facility status of its projects, we do  

not address any of those claims here. Specifically, we do not address what should be                                                                                                                       


included in Alpine's avoided-cost rates if its projects are qualifying facilities or whether  


the Commission's waiver of the specific tariff requirement is still valid.  

                74              See 3 AAC 48.130.  


                75              Jager, 537 P.2d at 1108.  


                                                                                                   -24-	                                                                                             7085

----------------------- Page 25-----------------------

                 B.	              MEA Is Not Required To File A General Qualifying Facility Tariff Or                                                                                                                

                                  TheData AndMethodology                                                     UnderlyingItsAvoided-CostInformation.                                         

                                  1.	              These issues are partially moot.                                      

                                  Alpineclaims                        thattheCommission'sregulationsrequireutilities                                                                               toprovide   

a   general   tariff   for   qualifying   facilities   and   to   provide   the   data   and  methodology  

underlying their avoided-cost disclosures. It argues that the Commission erred by failing                                                                                                                   

to require MEA to do so.                                         On November 20, 2015, however, the Commission amended                                                                                

                                                                                                                                                 76       The  new  regulations  are  

the   regulations   on   which   Alpine   bases   this   argument.                                                                                                                  

unambiguous; they do not require a general tariff or data and methodology. Alpine's  


claims on these points are therefore moot.  


                                  "[We] refrain from deciding questions where the facts have rendered the  


legal issues moot."77  This includes situations where "the party bringing the action would  


not be entitled to any relief even if it prevails."78   "If a regulation is amended, the case  


may become moot if the specific relief that the parties seek is no longer available."79  


This is because "[i]ssuing a decision regarding regulations that are no longer in effect is  


                 76               In re Alaska Envtl. Power, LLC                                                 , Order R-13-002(5) (Regulatory Comm'n                                               

of Alaska Nov. 20, 2015).                         

                 77                Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001)  


(alteration in original) (quoting  O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska  



                 78               Ahtna Tene Nené v. State, Dep't of Fish & Game , 288 P.3d 452, 457  


(Alaska 2012) (quoting Ulmer, 33 P.3d at 776).  


                 79               Id . at 458.  


                                                                                                         -25-	                                                                                                  7085

----------------------- Page 26-----------------------

merely an academic exercise; it provides no explanation of a party's rights under the                                                     

existing law."         80  

                      EvenifAlpine's interpretationoftheformer regulations iscorrect,therelief  


it seeks is no longer available under the new regulations.  The section on which Alpine  


relied for its general tariff argument, 3 AAC 50.790(a), now reads:   "Not later than  


60 days after receipt of a written request for interconnection from a qualifying facility,  


an electric utility shall file with the [C]ommission for its consideration a tariff for . . . the  


requesting qualifying facility . . . ."81                     The new regulation makes abundantly clear that,  


contrary to Alpine's argument, no tariff filing is required until a qualifying facility  


requests interconnection.  And 3 AAC 50.790(e) now contains a complete list of the  


information  that  electric  utilities  are  required  to  "compile  and  maintain  for  public  


inspection."  The data and methodology underlying that information is not an item on  


that list.82  Accordingly, even if the information Alpine seeks was once required, it is not  


now.  Alpine is not entitled to any relief on these claims even if it prevails, and these  


claims are therefore moot.83  


           80         Id .  at  457.  

           81         In  re  Alaska  Envtl.  Power,  LLC,  Order  R-13-002(5)  app.  at  9  (emphasis  


           82         See  id.  app.  at   10.  

           83         It is unclear whether Alpine is requesting only a current general tariff and  


data and methodology, or historic  information as well.   But the historic information  


would only be relevant if Alpine's projects are in fact entitled to an avoided-cost rate  


calculated as of some prior  date, which is only the case if its projects  are qualifying  


facilities. The Commission dismissed without prejudice all of Alpine's claims whose  


resolution depends on the qualifying-facility status of its projects.  Because we approve  


of this procedure and therefore do not reach the dismissed claims, we do not address  


whether Alpine's claims to historic information are also moot.  


                                                                    -26-                                                              7085

----------------------- Page 27-----------------------

                     We  nevertheless retain  the  discretion  to  address  moot  issues,  and  will  do  


so  if  the  public  interest  exception  applies.                   We  must  therefore  address  "(1)  whether  the  

disputed  issues  are  capable  of  repetition,  (2)  whether  the  mootness  doctrine,  if  applied,  

may  cause  review  of  the  issues  to  be  repeatedly  circumvented,  and  (3)  whether  the  issues  

presented  are  so  important to  the  public  interest  as  to  justify  overriding  the  mootness  


                     None  of  these  factors  are  present  here.   "[W]e  have  refused to apply  the  

public  interest  exception  to  .  .  .  situations  where  the  applicable  statute  or  regulation  was  

no  longer  in  force."86  

                                   Because  3  AAC  50.790  has  been  amended,  there  is  no  reason  to  


believe   that   MEA's   alleged   violations   of   the   former   regulation   will   recur.                                In   the  

unlikely  event  that  the  Commission  restores  the  former  regulation,  Alpine  may  raise  its  

claims   again   in   the   same   manner   it  raised   them  here.    And the  public   interest   is  not  

served  by  "an  advisory  opinion  on  facts  and  law  that  are  now  largely  irrelevant,"88  such  


as a regulation that no longer exists.  


                     For  these  reasons,  Alpine's  claims  that  the  Commission's  regulations  


require MEA to provide a general qualifying facility tariff and the data and methodology  


           84        Ahtna Tene Nené            , 288 P.3d at 459.         

           85        Id . (quoting Ulmer v. Alaska Rest. &Beverage Ass'n, 33 P.3d 773, 777-78  


(Alaska 2001)).  


           86        Alaska Cmty. Action on Toxics v. Hartig , 321 P.3d 360, 367 (Alaska 2014)  


(quoting Ahtna Tene Nené , 288 P.3d at 459).  


           87        See Ahtna Tene Nené, 288 P.3d at 459 ("These issues are not capable of  


repetition as this regulation is no longer in force and the subsequent amended versions  


are substantially different from the disputed [prior] version.").  


           88        Alaska Cmty. Action , 321 P.3d at 369.  


                                                                 -27-                                                           7085

----------------------- Page 28-----------------------

underlying its avoided-cost information are moot. Because the public interest exception                                                                                         

does not apply, we decline to address these claims.                                                                   

                               2.	            Federal law does not require utilities to publish their data and  


                              Alpine also argues that FERC's regulations require utilities to provide the                                                                                      

data and methodology underlying their avoided-cost information.                                                                                               Alpine points to                   

 18   C.F.R.   §   292.302(e),   which   provides:     "(1)   Any   data   submitted   by  an  electric  

utility . . . shall be subject to review by the State regulatory authority . . . . (2) In any such                                                                                          

review, the electric utility has the burden of coming forward with justification for its                                                                                                        


                   The justification requirement, Alpine claims, imposes a general obligation on  




                              Alpine's  interpretation  of  FERC's  regulations  is  incorrect.                                                                                    It  reads  


 18 C.F.R. § 292.302(e) to require Commission review of all avoided-cost information  


submitted by utilities, and to require utilities to justify all such information. But the  

                                                                                                                                                                        90   This is not  


regulation only provides that such information will be "subject to review." 

mandatory language.  The plain text provides only that states may review the avoided- 


cost information provided by a utility and, that if the state does so, the utility must justify  


that information.  


                               FERCadded 18 C.F.R. § 292.302(e) to the rule at the end of the rulemaking  


process, in response to comments that "the proposed rule did not address the issue of  


                                                                                     91   The initial proposed rule did not provide for any  

validation of the data to be provided."                                                                                                                                                       


               89              18  C.F.R.  §  292.302(e)  (2015).  

               90             Id .  §  292.302(e)(1)  (emphasis  added).  

               91              Small    Power    Production    and    Cogeneration    Facilities;    Regulations  

Implementing  Section  210  of  PURPA,  45  Fed.  Reg.   12,214,   12,219  (Feb.  25,   1980).  

                                                                                              -28-	                                                                                       7085

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state review of such data.                                       It would be odd for FERC to impose such a heavy reporting                                                                

burden   on   utilities   (and   an   onerous   review   requirement   on   states)   as   a   last-minute  

alteration to the rule, and accordingly we believe that FERC simply intended to clarify                                                                                                          

that states may review the avoided-cost information provided by utilities as they deem                                                                


V.              CONCLUSION  

                                We DISMISS as moot the appeal regarding Alpine's claims to a general  


qualifying-facility tariff and to avoided-cost data and methodology.   We otherwise  


AFFIRM the decision of the superior court.  


                92              Small  Power  Production  and  Cogeneration  -  Rates  and  Exemptions,  


44 Fed. Reg. 61,190, 61,203 (Oct. 24, 1979).  


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