FERC opens the door for solar advocates to take Alabama regulators to court


The Federal Energy Regulatory Commission (FERC) has declined to grant a petition to initiate enforcement action against the Alabama Public Service Commission (PSC) for allowing Alabama Power to impose punitive charges against customers with rooftop or on-site solar.

While this may initially sound like inaction against those charges, the decision opens a lane for the petitioners to pursue their case against the PSC in federal court. FERC’s decision not to enforce was expected.

In support of the petitioners’ case, FERC Chairman Richard Glick and Commissioner Allison Clements expressed their concern that the PSC may be violating federal law by discouraging rooftop or customer-sited solar growth in Alabama.

In their joint statement, Commissioners Clements and Glick found that “[p]etitioners have presented a strong case that the Alabama Commission failed to adhere to regulations set forth in FERC Order No. 69 [FERC’s order establishing its PURPA regulations], violating the requirements of [federal law].”

The charge igniting this case is a monthly capacity fee of $5.41/kW that solar customers have been paying since 2013. The petitioners behind the case are four owners of small PV systems – ranging from 2 to 6 kW – and a local nonprofit, the Greater-Birmingham Alliance to Stop Pollution (GASP). The petition was filed by the Southern Environmental Law Center (SELC) and Ragsdale LLC on the PV owners and GASP’s behalf.

The petitioners argue that Alabama Power’s solar fixed charges violate the PURPA regulations. PURPA prohibits rates for sales of electricity that discriminate against qualifying facilities, and the petitioners submit that their systems qualify.

Additionally the group maintains that the solar fixed charges are not based on a cost-of-service study, nor consistent systemwide costing principles, arguing that both are required under PURPA. The petition adds that the charges are based on lost revenues resulting from reduced customer usage, which is not unique to solar adoption, making them discriminatory.

“We are pleased that Chairman Glick and Commissioner Clements recognize the apparent illegality in how Alabama Power, with the full support of the Alabama Public Service Commission, is treating customers who make private investments in rooftop or customer-sited solar,” said Keith Johnston, Director of SELC’s Alabama office. “We are now prepared to take the next step of seeking relief from a federal district court so that Alabama Power customers can finally reap the benefits of solar to the same degree as customers in other solar-rich states.”

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