A cross-practice Orrick team secured a significant FERC ruling for a solar + storage developer that established a favorable approach to determining the eligibility of solar + storage for benefits of the Public Utility Regulatory Policies Act of 1978 (PURPA). On March 18, 2021, the Federal Energy Regulatory Commission (FERC) approved a “request for rehearing” prepared by Orrick regulatory and appellate lawyers and overturned its prior ruling from September 2020, which had denied favorable “PURPA” treatment to the Broadview Solar, LLC project -- a proposed solar + storage facility – being developed by Broad Reach Power on the grounds that it exceeded the statutory 80 megawatt capacity limit.
The September 2020 ruling had departed from FERC’s long-standing analysis for determining the “power production capacity” of a facility for purposes of defining qualifying facility (QF) status under PURPA. The March 2021 outcome reestablished the settled PURPA precedent of a “send out” analysis that determines a facility’s “power production capacity” based on the amount of power the facility transmits to the grid - i.e., its “send out”—, rather than the “gross” capacity of any individual component part. FERC agreed that the capacity of components of the facility can exceed 80 MW, as long as the facility is not capable of transmitting more than 80 MW to the interconnected utility.
The ruling represents the first instance of FERC addressing the QF status of a hybrid facility with power generation and energy storage components under PURPA. The decision is regarded as an important development for the US renewable sector that clarifies solar + storage eligibility under PURPA, and it will provide developers with greater flexibility for pairing solar array and battery storage systems in hybrid facilities, in cases where the capacity of individual components of the facility might exceed 80 MW. Orrick’s team for this proceeding was led by Energy & Infrastructure group attorneys Adam Wenner, Cory Lankford, and Paul Zarnowiecki and Supreme Court and Appellate group attorney Bob Loeb.