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 19-0223
have proven decisive to the case, or if the 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 under the standards of M. R. App. 20(1)(a). However, in reviewing our Opinion

while considering this Petition, we determined that clarification of specific portions of that

Opinion is warranted. We will therefore issue 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 of return 

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 of hydroelectric a facilities.

¶ 16:

• In discussing carbon adder, the Dissent presents a false equivalent that

the majority endorses what would 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 of return" and "rate base amount," which

is substantially similar to a QF's avoided-cost rate for NorthWestern's

acquisition of the 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 its their avoided-cost rates or the equivalent

rate base amount, to exclude carbon costs from the avoided-cost rate

exelusively for Selilf QFs, particularly given greatly reduced

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maximum-length contracts, is discriminatory to SO QFs and in

violation of PURPA. 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 of this Order to all counsel of record.

DATED this to day of October, 2020.

Chief Justice

44/-14e.A. 1

SU 4iL

Justices

Justice Beth Baker, concurring and dissenting.

I would deny rehearing of the jurisdictional and carbon-adder issues. I also disagree with

the PSC that the Court's Opinion prevents the Commission from establishing separate

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avoided 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 of the SPP planning

criteria and appropriate contract length in light of the 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 relief ordered, but does affirm

its decision to vacate the PSC's symmetry finding.

Justice

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