This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 34

IN THE

SUPREME COURT OF THE STATE OF UTAH

ELLIS-HALL CONSULTANTS,

Petitioner,

v.

PUBLIC SERVICE COMMISSION OF UTAH,

Respondent.

No. 20140616

Filed July 28, 2016

On Petition for Review of an Administrative Order

Docket No. 14-035-24

Attorneys:

Mary Anne Q. Wood, Stephen Q. Wood, Salt Lake City, 

for petitioner 

Sean D. Reyes, Att’y Gen., Nancy L. Kemp, Justin C. Jetter, 

Asst. Att’ys Gen., Salt Lake City, for respondent

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,

and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Ellis-Hall Consultants is involved in the development of 

wind power projects in Southeastern Utah. The aim of these projects 

is to sell power to PacifiCorp through its Rocky Mountain Power 

division. To qualify to do so, Ellis-Hall is required to enter into and 

secure agency approval of a power purchase agreement. But first

Rocky Mountain Power is required by governing regulations to 

provide “indicative pricing” to a producer seeking to pursue a 

power purchase agreement. Indicative pricing is to be “tailored to 

the individual characteristics of the proposed project.” Rocky 

Mountain Power, Electric Service Schedule No. 38 I.B(4) (2014). And it is 

aimed at allowing the producer to “make determinations regarding 

project planning, financing, and feasibility.” Id.
ELLIS-HALL v. PUBLIC SERVICE COMMISSION

Opinion of the Court

2

¶2 Ellis-Hall received an indicative pricing proposal in 2012. 

Yet Rocky Mountain Power later rescinded that proposal and 

refused to proceed with negotiations on a power purchase 

agreement under its earlier indicative pricing. It did so on the 

ground that the Utah Public Service Commission had since issued an 

order adopting a new pricing methodology. Ellis-Hall challenged 

that decision in a proceeding before the Commission. Ellis-Hall 

asserted a right to rely on the old indicative pricing proposal in 

negotiating a power purchase agreement. The Commission 

disagreed. We reverse.

I

¶3 To encourage the development of alternative energy

resources, federal law requires a utility to purchase wind energy and 

other forms of alternative power from qualifying facilities1 at its

avoided cost—what it would have cost the utility to generate the 

power itself or purchase it from another source. 16 U.S.C. § 824a-3; 

18 C.F.R. § 292.101. The Commission establishes the methodology for 

determining avoided cost. It also promulgates regulatory tariffs 

establishing the rules for the negotiation and approval of power 

purchase agreements. 

¶4 The tariff in question here is called Electric Service Schedule 

38. Schedule 38 was adopted by the Commission in 2003. It governs 

negotiations between a qualifying facility and Rocky Mountain 

Power. 

¶5 Under Schedule 38, Rocky Mountain Power is required to

provide a qualifying facility with an indicative pricing proposal once 

the facility submits certain information regarding a proposed project. 

The pricing proposal must be “tailored to the individual 

characteristics of the proposed project.” Schedule 38 I.B(3). And it is 

aimed at allowing the owner of the qualifying facility to “make 

determinations regarding project planning, financing, and 

feasibility.” Id.

¶6 Schedule 38 also notes that indicative “prices are merely 

indicative and not final and binding” until the parties negotiate and 

execute a power purchase agreement that is approved by the 

Commission. Id. And it identifies specific subsequent steps that a 

 1 The federal standards for qualifying facility status are set forth 

in 18 C.F.R. § 292.203. We are not asked here to decide whether EllisHall’s project is a qualifying facility. 
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Opinion of the Court

3

qualifying facility should take to be entitled to receive a draft power 

purchase agreement and to proceed toward final negotiation.

¶7 Rocky Mountain Power may “update its pricing proposals” 

in response to “changes to the Company’s avoided-cost 

calculations.” Id. at I.B(6)(c). But it may “not unreasonably delay 

negotiations” and must “respond in good faith.” Id. at I.B(6)(2).

Beyond that Schedule 38 says little about the relationship between 

avoided cost methodologies and indicative pricing. It does not speak 

specifically to the effect of a change in avoided cost methodology on 

existing indicative pricing proposals.

¶8 The Commission adopted a “market proxy” methodology 

for determining the avoided cost for wind power projects in 2005.

Under that method, avoided cost was determined by reference to 

Rocky Mountain Power’s most recent request for a proposal to 

supply wind energy. So this method pegged avoided cost at the level 

of the most recent market-based wind contract—executed in 2009—

rather than looking at the current cost to generate energy. At the 

time this methodology was adopted, it was considered fair because 

Rocky Mountain Power anticipated sending out a request for a 

proposal and negotiating a new price each year. 

¶9 Ellis-Hall requested indicative pricing for its wind power 

project in 2012. At that time the “market proxy” methodology was 

still in place. Soon thereafter, however, Rocky Mountain Power 

sought the Commission’s approval for a change in methodology. 

Because Rocky Mountain Power had not issued a proposal in several 

years and the cost of producing wind energy had decreased, it

argued that it was overpaying under the market proxy methodology.

It also sought a stay—an order allowing it to refuse to issue new 

indicative pricing proposals until the Commission could decide 

whether to adopt a new methodology. 

¶10 Ellis-Hall moved to intervene. It sought to challenge the 

requested change in methodology and to block the issuance of a stay.

The Commission granted Ellis-Hall’s motion to intervene. It also 

bifurcated the proceedings into two phases.

¶11 In the first phase the Commission considered—and 

denied—Rocky Mountain Power’s request for a stay. In so doing, the 

Commission explained that the request “ignore[d] the practical 

realities of bringing a large wind [qualifying facility] project from 

inception to conclusion, in assuming all five projects in the queue 

[including Ellis-Hall] would be able to negotiate power purchase 

agreements before our order in Phase Two.” Id. at 17. Yet the 

Commission also noted the possibility that “the outcome of the 
ELLIS-HALL v. PUBLIC SERVICE COMMISSION

Opinion of the Court

4

Phase Two hearings and the interests of ratepayers may require the 

application of new avoided cost calculations for . . . projects not in 

possession of executed power purchase agreements when the Phase 

Two order is issued.” Id.

¶12 After the Commission’s “Phase One” order was issued, 

Rocky Mountain Power provided Ellis-Hall with an indicative 

pricing proposal based on the market proxy methodology. Before 

Ellis-Hall was able to negotiate a power purchase agreement with 

Rocky Mountain Power, however, the Commission issued its “Phase 

Two” order. This order “discontinue[d]” use of the market proxy

methodology “for determining indicative prices for Schedule 38 

wind [facilities] going forward.” Order on Phase Two Issues at 18. It 

also adopted a new avoided cost methodology—the Proxy/PDDRR

(partial displacement differential revenue requirement) method,

which allowed Rocky Mountain Power to determine its avoided cost 

based on current energy production cost rather than the cost of the 

most recently executed proposal. This new methodology was

expected to lower Rocky Mountain Power’s avoided costs.2 Id.

Finally, the Phase Two order provided that the market proxy 

method was discontinued “going forward.” Id. It accordingly 

concluded that “future requests for indicative pricing” would be 

governed by the new methodology, thus “ensur[ing]” that “future 

indicative prices . . . will reflect” market costs “appropriately.” Id.

¶13 In reliance on the Phase Two order, Rocky Mountain Power 

sent Ellis-Hall a letter stating that “the previously provided 

indicative pricing [was] no longer valid.” Order Dismissing Ellis-Hall 

Complaint at 5. It also asked Ellis-Hall to submit a request for 

“updated indicative pricing” under Schedule 38 if it wished to 

proceed toward a power purchase agreement. Id. Ellis-Hall refused 

to submit such a new request. Instead it filed a complaint with the 

Commission, asserting that Rocky Mountain Power was required to 

honor its prior indicative pricing proposal and to negotiate a power 

purchase agreement using the market proxy methodology. In EllisHall’s view there was no need for a request for new indicative 

pricing, as it already had an indicative pricing proposal and was 

entitled to rely on it in negotiating a power purchase agreement. 

 2 This seems to be undisputed. None of the parties suggest that

an avoided cost determined under the new methodology would 

result in Ellis-Hall being paid more for its energy production. And 

Ellis-Hall asserts that it is no longer economically feasible for it to 

proceed under the new methodology. 
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Opinion of the Court

5

And Ellis-Hall claimed that the Phase Two order had no application

to existing indicative pricing proposals, but only to future requests 

for such proposals.

¶14 The Commission rejected Ellis-Hall’s position. It concluded 

that the “plain language of Schedule 38, the Phase [One] Order and 

the Phase [Two] Order” require Rocky Mountain Power to utilize the 

new methodology. Order Dismissing Ellis-Hall Complaint at 21. First, 

the Commission noted that the market proxy method was 

“discontinued pursuant to the [Phase Two order].” Second, the 

Commission stated that the Phase One order “fully anticipated the 

possibility that a change in its avoided cost method would result in 

the application of new avoided cost calculations for all large wind 

. . . projects not in possession of executed power purchase 

agreements when the Phase [Two] order was issued.” Id. at 21. 

¶15 For these reasons, the Commission concluded that its orders

did not “vest [Ellis-Hall] with indicative pricing” calculated using an 

outdated method. Id. at 22. It also held that Rocky Mountain Power 

was required “to update pricing to reflect changes to avoided cost 

calculations” under Schedule 38 and the “underlying mandates of 

federal and Utah state law.” Id. at 20–21. And because prices are not 

“final and binding” until a power purchase agreement is negotiated,

the Commission held that Ellis-Hall was not entitled to continue to 

rely on the methodology used in Rocky Mountain Power’s indicative 

pricing proposal. Id. at 23.

¶16 Ellis-Hall filed a petition for review or rehearing with the 

Commission, which was denied. It subsequently filed a timely 

petition for review with this court. 

II

¶17 Ellis-Hall raises pure questions of law in its petition 

challenging the Commission’s decision. It claims error in the 

Commission’s interpretation of both Schedule 38 and the Phase One 

and Phase Two orders. 

¶18 A threshold question presented concerns the governing 

standard of review. We first conclude that we owe no deference to 

the Commission’s legal conclusions. We then proceed to consider the 

Commission’s interpretation of Schedule 38 and of the two orders in 

question. And we conclude that the Commission erred determining 

Ellis-Hall did not have a right to rely on the indicative pricing 

provided by Rocky Mountain Power under the market proxy 

method and was required to submit a request for new indicative

pricing.
ELLIS-HALL v. PUBLIC SERVICE COMMISSION

Opinion of the Court

6

A

¶19 We have sometimes said that “we give considerable weight” 

to the [Public Service Commission’s] interpretations of technical 

provisions such as tariffs.” McCune & McCune v. Mountain Bell Tel., 

758 P.2d 914, 917 (Utah 1988). And we have justified such deference 

on the basis of an inference of “legislative intent to delegate” to the 

“responsible agency” the discretionary power to interpret its 

regulations. Utah Dep’t of Admin. Servs. v. Pub. Serv. Comm’n, 658 P.2d 

601, 610 (Utah 1983). 

¶20 The Commission asks us to apply that standard here. It 

seeks affirmance on the ground that its interpretation of Schedule 38 

and the Phase One and Phase Two orders falls “within the limits of 

reasonableness or rationality.” McCune & McCune, 758 P.2d at 917;

see also Bradshaw v. Wilkinson Water Co., 2004 UT 38, ¶ 11, 94 P.3d 242.

¶21 We acknowledge the apparent basis for the Commission’s 

position under the cited cases. But we conclude that the deferential 

standard of review set forth above has been overtaken by more 

recent authority. And we conclude that the appropriate standard is a 

non-deferential one that reviews the Commission’s conclusions of 

law—its interpretations of its prior orders and regulatory provisions 

like Schedule 38—for correctness.

¶22 For years our caselaw was riddled with tension on the

question of the standard of review that applies to judicial review of 

agency action. See Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 11,

308 P.2d 461 (noting “our inconsistent precedent on . . . standards of 

review” under the Utah Administrative Procedures Act). On one 

hand, we had held that an agency’s legal conclusions could be 

subject to a deferential standard of review where the legislature “has 

either explicitly or implicitly delegated discretion to an agency to 

interpret or apply the law.” Id. ¶ 12 (citing Morton Int’l, Inc. v. Tax 

Comm’n, 814 P.2d 581, 588 (Utah 1991)). On the other hand, in some 

cases we had applied traditional standards of review to agency 

decisions—standards that turned on whether an agency’s decision 

turned on a question of law, a question of fact, or a mixed question. 

Id. ¶ 13 (citing Drake v. Indus. Comm’n, 939 P.2d 177, 179–81 (Utah 

1997)). 

¶23 Murray overruled the first line of cases in favor of the latter. 

It held that “the appropriate standard of review of final agency 

actions will depend on the type of action in question”—on “whether 

it can be characterized as” turning on “a question of law, a question 

of fact, or a mixed question of law and fact.” Id. ¶ 22. And it 

repudiated the notion that an agency’s “authority” to apply a 
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Opinion of the Court

7

statutory framework sustained an inference of “discretion” leading 

to deference to its decisions. See id. ¶ 28 (noting that the inquiry into 

whether the legislature had made a “delegation[] of discretion” to an 

agency had “proved difficult to apply” and holding that a “grant of 

authority” to an agency “does not turn an agency’s application or 

interpretation of the law” into a discretionary decision warranting 

deference).

¶24 Murray thus calls for non-deferential “correctness” review of 

agency conclusions of law. See id. ¶¶ 9, 12. That is the traditional 

standard that applies on review of pure legal questions. See

Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 41, 

308 P.3d 382. And it is thus the standard that applies under Murray. 

¶25 We reinforced that conclusion in Hughes General Contractors 

v. Utah Labor Commission, 2014 UT 3, 322 P.3d 712. There we 

indicated that we have “openly repudiated” a standard of deference 

to administrative agencies like that which applies in federal court 

under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984). Id. ¶ 25. And we clarified that “we have retained 

for the courts the de novo prerogative of interpreting the law, 

unencumbered by any standard of agency deference.” Id.

¶26 Hughes also clarifies a point made in Murray. It notes that 

deference to agencies is limited to circumstances prescribed by 

statute or required by our caselaw—“as when an agency makes a 

factual determination, or ‘whenever the Legislature directs an 

agency to engage in [discretionary] decisionmaking.’” Id. ¶ 25 n.4

(alteration in original). But Hughes also highlights the limited nature 

of the kind of discretionary judgments that qualify for deference: “A 

‘discretionary decision involves a question with a range of 

‘acceptable’ answers, some better than others, and the agency . . . is 

free to choose from among this range without regard to what an 

appellate court thinks is the ‘best’ answer.’” Id. (alteration in 

original) (quoting Murray, 2013 UT 38, ¶ 30). And Hughes

emphasizes that “[s]tatutory interpretation does not present such a 

discretionary decision,” and thus is not subject to deferential review. 

Id.

¶27 We now reinforce our holdings in Murray and Hughes. We 

reiterate that agency decisions premised on pure questions of law are 

subject to non-deferential review for correctness.

¶28 In so holding, we repudiate our prior decisions calling for 

deference to an agency’s interpretation of its own orders or 

regulatory enactments. And we hold that the Commission is not 
ELLIS-HALL v. PUBLIC SERVICE COMMISSION

Opinion of the Court

8

entitled to deference as to its interpretation of Schedule 38 or its 

Phase One and Phase Two orders.

¶29 As the Commission notes, we have sometimes called for 

deference to an agency’s interpretation of its own regulations on the 

ground that the agency “is best suited to say what its orders mean.” 

Reaveley v. Pub. Serv. Comm’n, 436 P.2d 797, 799 (Utah 1968). And 

there is a parallel principle of deference in federal law. See Bowles v. 

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (providing for 

deference to agency interpretation of its own regulations unless it is 

“plainly erroneous or inconsistent with the regulation”); Auer v. 

Robbins, 519 U.S. 452, 461 (1997) (same).

¶30 We are in no way bound by the federal standard, however. 

And the underlying premises of this principle of deference are 

irreconcilable with our decisions in Murray and Hughes.

¶31 Schedule 38 is law. So are the orders issued by the 

Commission. See Salt Lake Citizens Cong. v. Mountain States Tel. & Tel. 

Co., 846 P.2d 1245, 1253 (Utah 1992) (holding that “[r]ules of law 

developed in the context of agency adjudication are as binding as 

those promulgated by agency rule making”). They are accordingly 

binding on interested parties like Ellis-Hall. And such parties have a 

right to read and rely on the terms of these regulations. Because the 

words in the Commission’s orders have the force of law, the 

Commission has no right to revise them by a later “interpretation.”3 It 

is the Commission’s orders and tariffs that have the force of law, not 

its privately held intentions. So an agency has no authority to 

override the terms of an issued order by vindicating the agency’s 

“true” intent. Agencies make law by issuing orders or promulgating 

regulations. Privately held intentions that contradict such rules are 

not law.

¶32 We are in as good a position as the agency to interpret the 

text of a regulation that carries the force of law. In fact, we may be in 

a better position. The agency here is in the position of lawmaker; in 

adopting Schedule 38 and issuing the two orders in question, the 

Commission has exercised authority delegated to it by the 

legislature. With that in mind, it makes little sense for us to defer to 

 3 An agency, of course, may have the authority in certain 

circumstances to repeal a prior order and issue a new one. But such 

power is distinct from the power to interpret an existing order. And 

the Commission has not repealed Schedule 38 or either of its 

operative orders. 
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Opinion of the Court

9

the agency’s interpretation of law of its own making. If we did so we 

would place the power to write the law and the power to 

authoritatively interpret it in the same hands. That would be 

troubling, if not unconstitutional.4 See UTAH. CONST. art. V, § 1

(forbidding any one branch of government from “excercis[ing] any 

functions appertaining to either of the others”).

¶33 “It is emphatically the province and duty of the judicial 

department to say what the law is.” Marbury v. Madison, 5 U.S. (1 

Cranch) 137, 177 (1803). We accordingly review the Commission’s 

interpretation of Schedule 38 and the Phase One and Phase Two 

orders without affording any deference to the Commission.

B

¶34 The Commission’s Phase One order concludes that “the 

outcome of the Phase Two hearings and the interests of ratepayers 

may require the application of new avoided cost calculations” for 

those “not in possession of executed power purchase agreements 

when the Phase Two order is issued.” Order on Motion to Stay Agency 

Action at 17–18 (emphasis added). And the Phase Two order in fact 

adopts a new avoided cost methodology. It repudiates the market 

proxy method “for determining indicative prices . . . going forward” 

and concludes that the Proxy/PDDRR method “is a reasonable 

method for determining wind resource indicative prices going 

forward.” Order on Phase Two Issues at 18 (emphasis added). 

¶35 The Commission interpreted these orders as repudiating the 

terms of any indicative pricing for entities (like Ellis-Hall) not yet “in 

possession of executed power purchase agreements when the Phase 

Two order issued.” Order Dismissing Ellis-Hall Complaint at 21. It 

sought to buttress that conclusion, moreover, by reference to the 

terms of Schedule 38. Schedule 38 authorizes Rocky Mountain Power 

to “update its pricing proposals at appropriate intervals to 

accommodate any changes to the Company’s avoided-cost 

 4 The executive and legislative branches do interpret the law, of 

course. And agencies interpret laws of their own making with some 

regularity. But such interpretation—in the process of fulfilling 

constitutionally assigned powers—is different from exercising 

authoritative power to say what the law is. Only the judicial branch 

does that. And when another branch interprets law in the course of 

fulfilling its governmental functions, it is ultimately subject to 

judicial review without deference by the courts. Such review 

preserves the proper separation of powers.
ELLIS-HALL v. PUBLIC SERVICE COMMISSION

Opinion of the Court

10

calculation.” Schedule 38 I.B(6)(c). And it provides that “[p]rices and 

other terms and conditions in the power purchase agreement will 

not be final and binding until the power purchase agreement has 

been executed by both parties and approved by the Commission.” Id.

I.B(7).

¶36 In light of the above, the Commission concluded that the 

Phase Two order “does not vest” qualifying facilities with a right to 

rely on “indicative pricing calculated using an outdated method and 

received under Schedule 38” prior to issuance of that order. Order 

Dismissing Ellis-Hall Complaint at 22. “Rather,” the Commission held,

“indicative prices are required to be updated to reflect new avoided 

costs calculations until a power purchase agreement is executed by 

both parties.” Id. And because the indicative pricing issued to EllisHall had not been adopted in a power purchase agreement executed 

by both parties and approved by the Commission, the Commission 

held that Ellis-Hall was required to submit a request for new 

indicative pricing before it could proceed with a power purchase 

agreement. 

¶37 We reverse. We construe the terms of the Phase Two order, 

when read in light of the Phase One order and Schedule 38, to yield a 

right to a wind power developer to rely on the methodology set forth 

in the “indicative pricing proposal” it receives from Rocky Mountain 

Power. The precise calculations in the indicative pricing proposal, of 

course, are not set in stone; Schedule 38 makes clear that Rocky 

Mountain Power may “update” its proposals to make changes to its 

calculations. But the operative terms of the Commission’s orders and 

of Schedule 38 give entities like Ellis-Hall a right to rely on the 

methodology employed in an indicative pricing proposal once it is 

given.

¶38 We reach that conclusion for several reasons. First, the Phase 

One order nowhere mandates a new avoided cost methodology; it 

simply says that the Phase Two proceedings “and the interests of 

ratepayers may require” a new methodology. Phase One Order at 17

(emphasis added). Significantly, moreover, the Phase One order 

declines to stay the market proxy methodology. And in so doing it 

indicates that the request for a stay “ignores the practical realities of 

bringing a large wind [qualifying facility] project from inception to 

conclusion, in assuming all five projects in the queue [including 

Ellis-Hall’s] would be able to negotiate power purchase agreements 

before” the Phase Two order was entered. Id.

¶39 Second, the Phase Two order does not mandate retroactive 

application of the new Proxy/PDDRR methodology; it deems that 

methodology a “reasonable” one “for determining wind resource 
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Opinion of the Court

11

indicative prices going forward.” Phase Two Order at 18 (emphasis 

added). The same formulation is used as to discontinuation of the 

market proxy method—that method is discontinued “for 

determining indicative prices . . . going forward.” Id. (emphasis 

added). And, importantly, the new methodology is mandated only 

as to “future requests for indicative pricing.” Id. (emphasis added).

This formulation is significant given that Ellis-Hall has not made a 

new request for indicative pricing. It already has indicative pricing 

and claims a right to use it in negotiating a power purchase 

agreement.

¶40 Because Ellis-Hall already had an indicative pricing 

proposal, it had no obligation under the Phase Two order to submit a 

new request. Nothing in the Phase Two order requires or even 

permits Rocky Mountain Power to issue a new indicative pricing 

proposal. And that seems understandable in light of the “practical 

realities of bringing a large wind [qualifying facility] project from 

inception to conclusion” noted in the Phase One order.

¶41 Third, Schedule 38 gives a would-be qualifying facility a 

right to receive “indicative” pricing and does so for the purpose of 

allowing the wind power developer “to make determinations 

regarding project planning, financing, and feasibility.” Schedule 38 at 

I.B.3. An indicative pricing proposal is one that “show[s] the way to 

or the direction of” the pricing that Rocky Mountain Power 

ultimately has in mind for the power purchase agreement. AM.

HERITAGE DICTIONARY 894 (5th ed. 2011) (defining indicate as “[t]o 

show the way to or the direction of”).5 Thus, the precise terms of 

Rocky Mountain Power’s indicative pricing could change as a result 

of “updated information” or “changes to [Rocky Mountain Power’s] 

avoided-cost calculations.” Schedule 38 at I.B(4), I.B(6)(c). But to be 

indicative, the pricing proposal would have to “point[] out more or 

less exactly” the methodology of Rocky Mountain Power’s pricing 

proposal, or in other words would have to “reveal[]” it “fairly 

clearly.” WEBSTER’S THIRD NEW INT’L DICTIONARY 1150 (2002).6

 5 The term “indicative pricing” is not defined in Schedule 38. Nor 

is there any indication that it has acquired an established meaning in 

the law or in the energy industry. So we construe the phrase as 

conveying its ordinary meaning. See Barneck v. Utah Dep’t of Transp., 

2015 UT 50, ¶ 28, 353 P.3d 140.

6 In light of the above we need not and do not reach the question 

whether Schedule 38 should be construed “strictly” against Rocky 

(continued...)
ELLIS-HALL v. PUBLIC SERVICE COMMISSION

Opinion of the Court

12

¶42 A prior pricing proposal ceases to be indicative if it is subject 

not just to an “update[]” or to new “calculations” but to a 

fundamental change in methodology. And if Rocky Mountain Power 

retains the right to alter the methodology underlying a prior 

indicative pricing proposal, the would-be qualifying facility is hardly 

in a position to use it “to make determinations regarding project 

planning, financing and feasibility.” Schedule 38 at I.B.(3).

III

¶43 For these reasons we conclude that Ellis-Hall is not required 

to submit a request for new indicating pricing from Rocky Mountain 

Power. It is entitled to proceed in reliance on the methodology set 

forth in the indicative pricing proposal it received from Rocky 

Mountain Power. 

¶44 That does not mean that Ellis-Hall has a right to require 

Rocky Mountain Power to enter into a power purchase agreement, 

or to require the Commission to approve such an agreement. Those 

questions are not properly presented for our review. And we 

accordingly decline to reach them.

¶45 Rocky Mountain Power has urged us to affirm on the basis 

of its purported right not to enter into a power purchase agreement 

with Ellis-Hall. Because it claims the discretion not to enter into a 

power purchase agreement, Rocky Mountain Power says that it can 

require Ellis-Hall to start over by submitting a new request for 

indicative pricing. And once that request is submitted, Rocky 

Mountain Power claims an unquestioned right to rely on the new 

Proxy/PDDRR methodology. With that in mind, Rocky Mountain 

Power asserts that Ellis-Hall’s position will fail in the long run even 

if it prevails on the issues presented for our review here.

¶46 These questions are not properly presented here, however. 

The question of Rocky Mountain Power’s discretion not to enter into 

a power purchase agreement—and of the effect on any such 

discretion on Ellis-Hall’s rights under the Commission’s orders—is 

simply unripe at this juncture. Rocky Mountain Power has not yet 

 

Mountain Power, as Ellis-Hall urges. See Josephson v. Mountain Bell, 

576 P.2d 850, 852 (Utah 1978) (calling for strict construction of tariff 

issued by telephone utility); but see Jex v. Utah Labor Comm’n, 2013 UT 

40, ¶ 56, 306 P.3d 799 (repudiating substantive canon of construction 

of Workers Compensation Act; clarifying that liberal canon of 

construction was at most a “tie-breaker” after the court first seeks to 

yield a reasonable construction of the statutory text).
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Opinion of the Court

13

sought to exercise such discretion and the Commission has yet to 

rule upon these issues. And for that reason our views on these issues 

would be premature and advisory.7

¶47 The same goes for an alternative ground for affirmance 

advanced by the Commission. The Commission says that a decision 

requiring Ellis-Hall and Rocky Mountain Power to proceed with 

negotiations on a now-outdated indicative pricing proposal will 

ultimately be thwarted by an inevitable decision by the Commission 

to decline to approve a power purchase agreement based on such 

methodology. To support that view, the Commission points to 

provisions of state and federal law that purportedly would foreclose 

the power purchase agreement that Ellis-Hall wishes to secure. See

16 U.S.C. § 824a-3 (mandating that rates charged for the purchase of 

energy not “exceed[] the incremental cost to the electric utility of 

alternative electric energy”). But again we view this issue as 

premature. The Commission has not as yet declined to approve a 

power purchase agreement sought by Ellis-Hall. And we 

accordingly are not in a position to offer an advisory opinion on a 

matter that is not yet ripe for our review.

¶48 For these reasons we are in no position to decide whether 

Ellis-Hall has an ultimate right to enter into a power purchase 

agreement with Rocky Mountain Power or to secure approval from 

the Commission. But we do conclude that it is entitled, for now, to 

rely on the indicative pricing proposal it was provided in the past,

and it has no obligation to submit a request for new indicative 

pricing as it moves forward in negotiations over a power purchase 

agreement with Rocky Mountain Power.

 7 The point is not that Ellis-Hall has no stake in the outcome of 

this case. Our holding implies a duty for Rocky Mountain Power to 

move forward with further negotiations in good faith. See Schedule 38 

I.B.(6)(a). But the outcome of those negotiations is by no means 

guaranteed. Thus, our holding is that Ellis-Hall has won a short-term 

battle. It remains to be seen whether it will prevail in the larger war.