newspaper over the weekend talking about something going on in florida where the they were saying the story line was there was an odd alliance of utilities and some public interest civil rights groups like and double a who were opposing efforts by the local agencies in the state agencies in florida to promote non o i mean renewable energy sources like those energy from solar panels and things like that on the grounds that it increased the cost of energy because the utilities had to pay a bit more money than would otherwise be the case and now on its face it would seem if that were true that that's contrary to the mandate of purpose which is to protect consumer prices bring it down to possible however as the supreme court recognized when it approved an early for rule in in the case american paper in institute it pointed out that sometimes a short term increase in cost can be offset over time by long term redux and that these the use of renewable energy could be perceived by and others within its administrative discretion to produce over the long term the reduction in in energy costs for everybody consumers now that may not be very pleasant in the very short term to a consumer price to pay a little bit more you know today or maybe next year but the government is making decisions which will over the long term and we can possibly see some of the effects of that now everybody is marveling at how the cost of oil and gasoline has gone down so radically recently and there's a variety of reasons but at least part of the reason is the significant increase in renewable energy sources that have been adopted under the cap policy arguments are intriguing and relevant at some level but i'd appreciate it if you would speak to some of the specific rulings that happened here in particular i'm interested in your comments on the district court that nine hundred eighty three claims for purpose violations are barred because of the comprehensive regulatory scheme under the federal law what is your position on the ruling well it's interesting t court actually said there was a labrat and complex didn't really of the work comprehensive appear they're sort of in there but it's real argument was a book and it's not really comprehensive and comprehensive it's not comprehensive for several reasons number that way because comprehensive is a touchstone if it's caught if there is a comprehensive remedy for medial system then it's implied that congress intended not to allow the use of  remember if it's explicit then that's the end of the discussion it's a congressional intent analysis and it is the presence of comprehensive remedial scheme that implies that but it cannot be comprehensive if there's one  there's one huge gap and it's remedial process and that is that purpose does not regulate or enforce its rules against regulated utility it's very odd thing it's the  it regulates the state utilities and it regulates the non regulated public utilities the theory being that the regulated public utilities will be regulated by the public utilities so that means so that an injured person has no remedy under for under purpose against a regulated utility even if the regulated utility is the one that's causing the harm if the regulated utility is  is called that a necessity if there is a another entity that has the ability to enforce the statute if the problem that the private individual or company is dealing collusion between the public entity and the regulated utility which by the way was one of the underlying purposes a purpose was a recognition that that existed that there was too cozy a relationship between those utilities and the and the utility commissions and that has persist you know we just had a whole blast of news about these radical turnover in the staff over at edison because it turned out they were engaged in  manage market because there's always only one utility in any one given area and you have a utility that where you have a revolving door between osha to what he's and who sits on the on the commissions that regulate them and so when the problem is as we alleged in our complaint here that there was a collusive problem between the p c and the entities the utilities when that is the problem there is no remedy under under perfect if if we were to disagree individual actions under section one thousand nine hundred three would that holding pertain to every one of your claims or would there be any additional claims that would still remain viable well jurisdictional those kinds of we need viable correct and then also and one of the other black absences in the in the scheme the purpose scheme is there is no provision for damages and sometimes after the injuries are already done you know you maybe even go and get an order compelling the p c to finally do its job but what if you've devastated the company in the interim there is no damages remedy under under perfidy either the district court said no that was part a congress intended well not necessarily there's a whole raft of cases that talk about how to determine whether a prime right of action for damages lies under a federal statute minute isn't at all automatic just because there may not be some other remedy well i'm not saying that if there are i agree that the mere absence of a remedy that might be available under one thousand eight hundred doesn't in and of itself the question is whether or not it's comprehensive now there's not a lot of case law there's not any there's just a few cases every once in a while that refer to it and then to say sometimes yes i mean the carlson versus green case said that it was not comprehensive the f d a and so they allowed nine hundred eighty three in that situation and you know a person could look at the f d a and say today maybe if it was you might have a different opinion today but one calls and the screams decided they decided it wasn't comprehensive enough so it didn't preclude one hundred eighty three and so you have a situation where ultimately somebody is going to have to really grapple with the issue of what's comprehensive but i don't think the word complex can be substituted for comprehensive or elaborate doesn't do it i think comprehensive means if you look it up in the dictionary that it really gives you remedies against the bulk of the things that are of grave importance and and that you can have an effective remedial scheme i think it  minimum comprehensive has to mean that you have reasonably effective remedies available for the primary purposes of the law and so if the primary purpose one of the primary purposes of the law was the regulation of the private utilities and you have a problem that arises where the state is not doing its job there is a collusion you have a claim against both of them but you cannot really do anything with perp except to say order them to do it and in the interim  this devastating damage inflicted on private entities who are struggling to do it and bearing the burden of first in the state to do what the federal government has ordered it to do but declines to do what is the measure of damages you're talking about the last  income that they would have incurred had they didn't given the ability to operate under the avoided cost standard that is adopted by f morning your honors elizabeth mcquillan for the california public utilities commission and its individual commissioners i first like to address the question that you raised with respect to the one nine hundred eighty three claim based on violation of perp up i respectfully disagree with counsel that purpose does not provide a remedy against regulated utilities in section two tenchi of purpose congress specifically allowed an action to be brought against regulated utilities in state court that is the remedy that is allowed by per section to ten h is specific to the remedy remedies allowed in the federal district court counsel also referred to one of the purposes of implementing purpose is was to prevent the alleged collusive behavior between utilities and state commissions i respectfully disagree with that as well one of the purposes of purpose was to prevent state commission regulation of qualifying facilities as you killed a case to allow them to foster this new industry council also referred to the carson versus green case in that case unlike in this instance there were specific congressional history that indicated that congress intended to allow a nine hundred eighty three administrative remedies is not jurisdictional in the true sense of it's a claim processing room not a jurisdictional rule what would be the result of that holding in your view with respect to i probably asked the question and mark foley but if we were to disagree with the district court on the jurisdictional piece of the affair to exhaust would there be any viable claims that would have to return to the district court for further processing and if so what would they be that what the district court held was that the perfect claim as stated in the first amendment but complete first amended complaint did not state a claim because there was no allegation of any violation of purpose that allegations were too ambiguous and conclu to what extent of the district court rely on its characterization of a farrier to exhaust as jurisdictional coming to a conclusion on certain of the claims i guess what i'm hearing you say is that there may have been alternative grounds either presented to the district court or relied on by the district court but what would be the alternative justification for dismissal with prejudice of those particular claim ground for dismissing that claim with prejudice that was presented to the district court that would provide anything does an alternative ground for a firm failure to state a demonstrate any viable cla a viable claim that could be sued and i don't believe so for now if you look at their reply brief they referenced the across the board failure to implement purpose we requested that the district court take judicial notice of a variety of our decisions in which the p c has invoked its power under purpose in implementing specific programs the first amended complaint did not attack any of those specific programs by name in the articulate way the allegations are textbook example of what is prohibited by all  rate set by the p c do and out allow the recovery effort happen all caused by the qualifying utilities this turns purple on its head because what defines avoided cost is not the cost of the qualifying utility but the cost of voided by the utility in either generating the power itself or purchasing it from another source they also claim that the interconnection standards had not been enforced by the  the second amended complaint makes clear if you look at those allegations that the plaintiff robert robert harvey and michael boyd's rooftop solar facilities had been interconnected for over ten years and there are no allegations in the complaint to substantiate any delays and in our connection by utilities they also complain in the reply brief about contract results losses i'm not quite sure what that means but first regulations are very specific that state commissions have wide latitude in defining the contracts will terms for a voided cost contract and there is no regulation in purpose that defines or prohibit terminations clauses in avoided cross contracts for qualifying utilities lastly that complain about renewable energy credits the second circuit and ferk have both held that renewable energy credits are separate from the issue of what it cost our creator of state law and our separately compensated there was no basis for any claim of enforcement alleged against the c p c so i'm just not the way the district court did this i'm not really clear on the procedural posture but it's i'd like to next address the issue of whether an up the exhaustion provision is jurisdictional and perfect congress created a very unique and what the courts have characterized as an elaborate enforcement scheme congress expressly intended to limit the jurisdiction of the federal district courts and allowed state court to be the primary jurisdiction for the judicial review and enforcement of purpose fact and that intent is reflected in sections two ten sheet and two ten age and section two ten eight congress created a jurisdictional and statutory exhaustion provision that is unique to this statute and does not exist independently congress allowed in section two hundred ten apes to be only certain plaintiffs to bring an action in federal district court and only after the plaintiff had first petitioned the furka and for had declined to take any and for smith's action on the petition within sixty days this section section two ten h two b bears all hallmarks of a jurisdictional provision as recognized by the stream supreme court in the are about case it defines the parties who made during a claim the nature of the claim when the claim may be bought brought i read that decision do you agree i agree there is very little analysis in the niagra case and it doesn't seem as ours are precedents here in the ninth circuit seems a little bit more stringent there are more searching then then  perhaps on the second circuit you agree with that well i agree that there is no analysis in that case but i do agree with the second circuit that this short jurisdictional this isn't the type of case where there is no congressional intent or the jurisdictional provision is located in a completely different section of the statute that federal district court is vested with jurisdiction in the exact same provision in the exact same section in the same sentence that allows the private right of action characterized to dismiss the exhaustion requirement as a first issuing a perfunctory or automatic right to sue letter that is incorrect the firk for example has issued as opposed to a notice of intent not to act a notice of intent to act against a state commission with a declaratory order describing its position or simply a declaratory order to the parties petition for enforcement after i pointed out this defect in the making confer section discussions their right there in force meant petition was not even resolved at the time the first amended complaint was filed petition and termed a quote mer less close quote finding that care had not identified any right or obligation enforceable under i believe my time is up if you have any questions i don't think we have any further questions thank you thank you very much suresh strachey have somervell yes i think it's interesting that by the way it's the middlesex case supreme court case that says that that is the term comprehensive is what governs whether you imply congressional intent not to be to exclude in one thousand nine hundred twenty and it's interesting the council is up here she didn't use the word conferences she said unique and elaborate and there's all this dancing around but why doesn't if if if we can meet the test of middlesex that is comprehensive then why didn't the district court say so why doesn't counsel say so because they can't why did you file her right to sue  were we were not sure necessarily it doesn't say in hold and there's no regulation insert that says you can't do that and if they don't act on it within sixty days you don't actually need a right to sue letter with the  petition unlike some of the others if they just don't do anything for sixty days then you get the right to sue also and we felt actually that that was adequate in what they did but then when they raised it as an issue we just as an as an excess of caution submitted another one and by the time the court was ruling the other one had already been issued the letter had been issued from from for accepting that they were not going to act on on the petition so you know it wasn't and on top of it let's remember we had claims that were also filing we were also intent on having these plaintiffs filing together as a as a cost basis to meet the overwhelming cost of dealing with litigating against utilities in the state of california they got from care who has participated in countless other would you can do that you can submit frankly that's what a lot of citizens groups of other groups ok but aren't people a little bit more in their criticism they're a little bit more strident perhaps she was correct when she finally said that there was no ruling on anything in the proper claims of care after the jurisdictional decision but the court did rule that those claims were adequately stated by s f u y which was similar but not identical and even on summary judgment the court never addressed the merits because it decided the latest it as if you i had no standing thank you thank you sorry about that was confusing to all of us