Victory for solar as Kansas Supreme Court blocks fixed fee for distributed power

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Solar choice won a victory in Kansas as the Kansas Supreme Court blocked a fixed fee for customers who generate solar or wind power. The fee had been proposed by Westar Energy and Kansas Gas and Electric, approved by state regulators, and affirmed by a lower court. Vote Solar and the Sierra Club then brought the case to the state supreme court, with representation from Earthjustice.

The court’s opinion relied on the “plain text” of a 1980 Kansas law which states that customers using renewable energy may not be subjected to “higher rates or charges” or “any other prejudice or disadvantage.” That law, said the court, “clearly prohibits the Utilities from price discrimination against distributed generation customers, something the Utilities admit they are trying to do.”

The court called the move to differentiate customers, “simply price discrimination,” and said the “rate design is unlawful.”

“Kansans, like all Americans, have a right to the free solar energy delivered to their roofs every day without fear of illegal utility charges,” said David Bender, the Earthjustice attorney who argued the case, in a press statement. “We are happy the court agreed with us.”

Vote Solar and the Sierra Club had standing to bring the case because they had intervened in the Kansas rate proceeding, and had objected to a settlement agreement reached by other parties to approve the fixed fee, or “demand charge.”

Kansas, although it is one of the sunniest states in the nation, recently had just 8 watts of small-scale solar per capita, versus the national average of 69 watts per capita. According to SEIA, Kansas ranks 47th by state with 47 MW of solar installed. Solar provides just 0.14% of the state’s electricity.

The court’s ruling, by Justice Caleb Stegall, describes the context in which the 1980 Kansas law was developed, noting the energy conservation goals of the federal government and many state governments in the late 1970s, in response to “America’s crisis relationship with fossil fuels” as well as early awareness of global climate change.

This led at the federal level to the 1978 law known as PURPA, whose regulations included an anti-discrimination provision that covered residential customers producing solar power, the court noted. Similarly, the 1980 Kansas law “codified the goal of incentivizing renewable energy production by private parties,” said the court.