By Howard Fischer | Capitol Media Services
A major Arizona utility’s can be held liable for violating antitrust laws through its policies of charging higher rates for electricity to its customers who choose to install rooftop solar panels, a federal appeals court ruled Monday.
In a unanimous decision, a three-judge panel of the 9th Circuit Court of Appeals rejected arguments by Salt River Project that its activities — and its pricing structure — are protected by various state and federal laws. The judges said there is sufficient evidence that can show the price structure was designed to deter the competitive threat of solar energy systems and force consumers to exclusively purchase electricity from SRP.
Monday’s ruling does not end the matter, sending the case back to a trial judge who will determine the extent of the utility’s conduct and the damages to SRP customers.
The decision, by itself, does not directly affect most other utilities in the state like Tucson Electric Power and Arizona Public Service. That’s because, unlike SRP, they have to get approval from the Arizona Corporation Commission for their rates.
But Jean Su, director of the energy justice program for the Center for Biological Diversity, said the ruling does make it clear that all utilities can be subject to anti-trust laws if their policies and practices which have not been approved by the commission result in deterring customers from investing in solar.
“This is a game changer in the struggle to defend rooftop solar against utilities’ all-out war on clean, affordable, climate-resilient energy,” she said.
“For the first time, a federal court has said utilities can be liable under antitrust laws if they attack rooftop solar,” Su said. “The future for renewable energy just got a light brighter.”
An SRP spokesman said the ruling was at least a partial victory with certain claims having been dismissed.
As to the rest, Scott Harelson said the company is confident that the rate plan “will be determined to have been rationally considered and adopted, and not in violation of any law or statute.”
According to court records, SRP at one time encourage the use of solar energy systems, even to the point of adopting a “net metering” system which gave customers credit for excess power they generated that could be sold to others.
“This court recognized what has been obvious to anyone watching SRP’s actions to undermine the rooftop solar industry, mainly that SRP’s actions have rendered rooftop solar largely uneconomical in its service territory. SRP may be the government, but the court held that this fact alone does not protect SRP from antitrust liability for anticompetitive behavior. SRP is about as anticompetitive as they come, first all but outlawing rooftop solar, and now proposing HB2101 which would forever take away Arizonan’s right to chose to buy power from another from the provider of their choice.”
~ Court Rich, Cofounder, Rose Law Group
