unique perspective to the Commission that emphasized making the securities opinion requirement -- and thus the ECR program overall -- more affordable and accessible to ensure participation of low to moderate income ratepayers and to remove market barriers to small-scale, energy projects. Overall, SELC recommended that the Commission should adopt the Petition modifications without Part (iii) law firm insurance minimums to decrease costs for small projects and to not prejudice small law firms. Throughout this proceeding, SELC has been a leading voice drawing attention to the barriers posed by the earlier “AmLaw 100” standard for ECR securities opinion. SELC argued that the Commission’s goal to limit customer and ratepayer risk associated with securities law compliance could be achieved without regulatory and financial hurdles that threaten to disable the ECR program. One alternative to the AmLaw100 standard that SELC advocated for was a standard based on knowledge of, and experience handling, securities issues (reflected in Petition modifications Part (i)). SELC also supported a standard that included a requirement that an SELC Response to Petition for Modification, April 26, 2017, at 2-5. See, e.g., SELC Response to Petition for Modification, April 26, 2017, at 5 (citing SELC Comments on Phase IV Track B Issues, at 5-12 for a through discussion of the shortcomings of the AmLaw 100 standard). SELC Response to Petition for Modification, April 26, 2017, at 3 (supporting Parts (i) and (ii) of the proposed modifications, in the alternative if the Commission were not to eliminate the requirement). adopted, some of them did form part of the Commission’s decision-making process. However, some of the intervenor’s analysis in their response to the petition for modification was out of scope of the issues to be considered in the Decision. Specifically, notes that intervenor’s request that the Commission grant exemptions to the securities requirement for developers that are nonprofits, cooperatives or government agencies, or projects otherwise sized under 1MW, exceeds the scope of the issues to be determined in the Decision at 11). Intervenor’s comments on the proposed decision, filed on June 26, 2017, are cited by intervenor as a contribution to the final Decision. However, intervenor’s comments to the proposed decision raised the substantive issue of whether to
attorney offering a securities opinion be licensed and in good standing (reflected in Part (ii)). SELC offered other alternatives, such as exempting nonprofit organizations and small projects from the securities opinion requirement that were discussed by the Commission but not incorporated in the Final Decision. Decision D. 17-07-007 adopted both Parts (i) and (ii) of the proposed modifications (in addition to Part (iii), which SELC did not support). The Commission agreed with the Petitioners and with SELC that the securities opinion standard should be focused on “the expertise of the lawyer responsible for the issuance of the opinion rather than the law firm’s national ranking.” SELC argued for alternatives regarding malpractice insurance requirements, which the Commission ultimately did not adopt, but which however became part of the Commissions more robust analysis of the issues. A liability insurance requirement was not part of the securities opinion standard in D. and given that it was part of the Petition’s proposed modifications, SELC’s contribution was vital in leading to the Commissions discussion of the merits and See also SELC Comments on Proposed Decision, June 26, 2017, at 5 (supporting modification Parts (i) and (ii) and proposing amendments to Part (iii)). D. 17-07-007, at 7-8 (changing the standard from a list of 100 firms to being based on attorney expertise). See also, id. at 5-7 (discussing and deciding against entirely eliminating the securities opinion requirement); id. at 11 (discussing and deciding against exempting the requirement for certain low-risk projects). SELC Response to Petition for Modification, April 26, 2017, at 3-4 (arguing for the elimination of the insurance requirement). See also SELC Comments on Proposed Decision, June 26, 2017, at 2-5 (arguing, at least, for the reduction of the insurance requirement for projects under 1MW in size and offering reports and data into the record of project development costs for projects). differentiate the adopted insurance coverage requirement based on project size for the first time, and consequently intervenor’s suggestions were rejected by the Decision on procedural grounds (D.17-07-007). Therefore, while some of the analysis provided by intervenor did contribute to the Commission’s decision-making process, some analysis provided was out of scope or otherwise procedurally improper and therefore did not contribute to the Commission’s decision-making process.