# ORIGIMAL

IN THE SUPREME COURT OF THE STATE OF MONTANA DA 19-0223
VOTE SOLAR,MONTANA ENVIRONMENTAL INFORMATION CENTER,and CYPRESS CREEK RENEWABLES,LLC,

Plaintiffs and Appellees, and WINDATA,LLC,

Plaintiff-Intervener and Appellee,
v. THE MONTANA DEPARTMENT OF PUBLIC SERVICE REGULATION, MONTANA PUBLIC SERVICE COMMISSION,

Defendant and Cross-Appellant, NORTHWESTERN CORPORATION, d/b/a NORTHWESTERN ENERGY,

Defendant and Appellant, and THE MONTANA CONSUMER COUNSEL,

Defendant-Intervener. 

# FILED OCT 0 6 2020
Bowen Greenvvooci Clerk of Supreme Court State of Montana

ORDER

On September 9, 2020,Appellant NorthWestern Energy and Intervenor Montana Consumer Council filed a Joint Petition for Rehearing in the above-entitled matter. Appellee WINData and Appellees Vote Solar, Montana Environmental Information Center,and Cypress Creek Renewables filed responses objecting to the petition. This Court generally will grant rehearing on appeal only if our initial decision overlooked some fact material to the decision,overlooked a question presented that would 10/06/2020

Case Number: DA 19-0223have proven decisive to the case, or ifthe decision conflicts with a statute or controlling

decision not addressed by the Court. M.R.App.P.20(1)(a). Having fiilly considered the parties' positions, we conclude rehearing is not warranted underthe standards ofM. R.App.20(1)(a). However,in reviewing our Opinion while considering this Petition,we determined that clarification ofspecificportions ofthat Opinion is warranted. We will thereforeissue an Amended Opinion with the following revisions to

# n 15, 16,42,45,and 70: ¶ 15:
• Since 2012, the PSC has included carbon pricing when determining avoided cost rates or approving NorthWestern's requested rate ofreturn and its rate base amount. • In 2014,the PSC approved NorthWestern's proposal to collect through customer rates the avoided-carbon costs associated with its purchase and operation ofhydroelectricafacilities. ¶ 16: • In discussing carbon adder, the Dissent presents a false equivalent that the majority endorses whatwould be the "first-ever carbon adder in a QF1 contract." Dissent, ¶ 84. But of course, as noted, consideration of carbon adders in QF contracts and NorthWestern's applications for acquisition and approval of a rate base amount for its own projects has been the case for other alternative sources, including hydro and wind power projects,since 2012. ¶42: • In issuing Order No. 7323k, addressing the Commission's approved "rate ofreturn" and "rate base amount,"which is substantially similar to a QF's avoided-cost rate for NorthWestern's acquisition ofthe hydro Qfs facilities, the PSC described the essential nature of including carbon emissions pricing in the avoided-cost rate, stating that Northwestern must "consider risk costs related to potential carbon emissions regulation when planning for and acquiring new resources." ¶45: • And,given that NorthWestern's hydro facilities, as well as other wind QFs enjoy a carbon adder in itstheir avoided-costrates or the equivalent rate base amount, to exclude carbon costs from the avoided-cost rate exelusively for Selilf QFs, particularly given greatly reduced 2maximum-length contracts, is discriminatory to SO QFs and in

violation ofPURPA. 16 U.S.C. § 824a-3(b). ¶ 70: • And, it is undisputed that NorthWestern's own resources enjoy a guaranteed cost-recovery or rate of return, which is functionally equivalent to a contract% for at least 25 years. IT IS HEREBY ORDERED that the petition for rehearing is DENIED. IT IS FURTHER ORDERED that an Amended Opinion is issued herewith. The Clerk is directed to provide a copy ofthis Order to all counsel ofrecord. DATED this to day ofOctober,2020.
ChiefJustice



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SU 4iL

Justices
Justice Beth Baker,concurring and dissenting. I would deny rehearing ofthe jurisdictional and carbon-adder issues. I also disagree with the PSC that the Court's Opinion prevents the Commission from establishing separate 3avoided energy and capacity costs with the proxy method in future dockets, and I would

not grant rehearing on that point. I would grant rehearing, however, for the purpose of remanding to the PSC to reconsider its application and explanation ofthe SPP planning criteria and appropriate contract length in light ofthe deficiencies identified in the Opinion. I also would clarify, as pointed out in my special concurrence, that the Court does not affirm the District Court's findings in their entirety or the reliefordered,but does affirm its decision to vacate the PSC's symmetry finding.

Justice

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