[00:00:03] Speaker 00: All right, there are four matters on calendar, three of which have been submitted on the briefs and record. [00:00:10] Speaker 00: And those cases are Munoz Garcia versus Garland, Oregon Valdez versus Garland, and Hendojo versus Garland. [00:00:19] Speaker 00: So the case that's up for argument this morning is Californians for Renewable Energy versus California Public Utilities Commission. [00:00:27] Speaker 00: When you're ready, Consul. [00:00:38] Speaker 02: Good morning. [00:00:41] Speaker 02: I've told the clerk that I'd like to break up my time 10 minutes and save five for rebuttal. [00:00:47] Speaker 00: All right. [00:00:48] Speaker 02: Maybe I might even get lucky and get done sooner, but you never know. [00:00:52] Speaker 02: I'd like to make four points, since obviously this thing has been totally briefed. [00:00:57] Speaker 02: And we're here in the Ninth Circuit for the third time. [00:01:00] Speaker 00: Indeed. [00:01:04] Speaker 02: What's really interesting is that the defendant's PUC has had the ability from the date of the remand, or at least after they failed to convince the previous panel to change its mind, to put an end to this case with a stroke of pen, and that is by simply including [00:01:26] Speaker 02: in its avoided cost, especially in that whole new process it initiated shortly afterwards to reissue an avoided cost as well as other related policies, include in there the actual definitions and decision of the Ninth Circuit in the previous opinion under the definition of avoided cost. [00:01:50] Speaker 02: Because if it had adopted, willy-nilly didn't like it maybe, [00:01:55] Speaker 02: But if it adopted and included a complete statement of what the Ninth Circuit said is avoided cost, including a couple of subordinate issues, which I'll get to in a moment where the court basically divided the baby, so to speak, this case would have been over. [00:02:11] Speaker 02: Because the court basically removed all ability of the plaintiffs to pursue their own individual claims. [00:02:19] Speaker 02: I'll get in a moment just to the Tansen thing, but I don't want to re-argue that. [00:02:24] Speaker 02: Either it is or it isn't a change in the law that matters. [00:02:28] Speaker 02: But what the plaintiffs have been wanting from day one is that the federal definition of avoided cost be enforced against the utilities by PUC. [00:02:40] Speaker 02: They could not sue the utilities directly because they're a regulated utility. [00:02:45] Speaker 02: PURPA doesn't allow that. [00:02:46] Speaker 02: So all you can do is sue the regulating agency [00:02:49] Speaker 02: get them to enforce the avoided cost rule. [00:02:54] Speaker 02: The Ninth Circuit defined avoided cost. [00:02:57] Speaker 02: Now, this court, I think, can do the same thing, and I think it should. [00:03:00] Speaker 02: This case got derailed insanely when instead of following through on having the remand issues based on the record that was before the court, the Ninth Circuit, and the district court before that, which was the summary judgment record, which is actual evidence, [00:03:17] Speaker 02: And I made the mistake of going along with the idea of starting a revised set of pleadings. [00:03:23] Speaker 02: It made it a mess, because now we were talking about what is alleged. [00:03:28] Speaker 00: But that's where you are now. [00:03:30] Speaker 02: Well, but the court can still. [00:03:32] Speaker 00: You're back to the pleading stage. [00:03:33] Speaker 00: You'll have to tell us where the district court erred in its standing in 12b6 analysis. [00:03:40] Speaker 02: Well, but PURPA, by definition, allows qualified facilities [00:03:46] Speaker 02: to challenge the policies of the regulating agency. [00:03:51] Speaker 05: Let me ask you about that, because I take it, at least with respect to care, for it is not a QF. [00:04:01] Speaker 05: It now claims, it now wants to file a supplemental or amended complaint saying that it has now become a QF, but at least in the absence of that complaint being filed, there's no allegation that they're a qualified facility, correct? [00:04:17] Speaker 02: They are located in the exact same physical location. [00:04:21] Speaker 05: I'm not asking that question. [00:04:22] Speaker 05: Okay. [00:04:23] Speaker 05: Are they a qualified facility? [00:04:24] Speaker 02: They are now. [00:04:25] Speaker 05: They are now, but they were not at any point up until the time you tried to file a third supplemental complaint. [00:04:32] Speaker 02: The paperwork was never done. [00:04:33] Speaker 02: Okay. [00:04:34] Speaker 02: So the answer is yes. [00:04:35] Speaker 02: Yes. [00:04:35] Speaker 02: The answer is yes. [00:04:36] Speaker 05: Okay. [00:04:36] Speaker 05: Now, with respect to care, your claim to us has to be that the judge somehow abused his discretion in not allowing you to file that third supplemental complaint. [00:04:51] Speaker 05: Because on the face of the complaint that he ruled on, [00:04:55] Speaker 05: doesn't qualify under the statute because it's not a qualified facility, right? [00:05:02] Speaker 02: I think yes. [00:05:03] Speaker 05: Tell me why. [00:05:04] Speaker 05: Tell me why you think the judge abused his discretion in not allowing you to file a . [00:05:12] Speaker 05: . [00:05:13] Speaker 05: . [00:05:13] Speaker 05: I'm not sure whether this is the eighth amended complaint or the third supplemental complaint, but at least the new pleading, let's call it that. [00:05:20] Speaker 02: When this action started, and which, if you remember, the first appeal to the Ninth Circuit was over whether or not the plaintiffs had adequately cured and done their administrative requirements with FERC, including CARE. [00:05:36] Speaker 02: And the issue about the standing of CARE was raised then, at that time. [00:05:41] Speaker 02: And CARE responded to that at that time by [00:05:44] Speaker 02: adding the plaintiffs, the individual plaintiffs who are members. [00:05:49] Speaker 05: I want to get back to the individual plaintiffs in a minute, but I'm still focusing on care. [00:05:57] Speaker 05: So tell me why care is an appropriate party in the absence of the amended pleading. [00:06:04] Speaker 02: That's what I'm getting to, because I think the reason why it's an abuse of discretion is that at the time that the issue was raised the first time, [00:06:12] Speaker 02: The plaintiffs responded and said, A, we've now added them, and B, we're arguing that CARE has the right to standing as a representative of QFs. [00:06:24] Speaker 02: That was our position at that time. [00:06:26] Speaker 02: Now, when the case came back, it got dismissed for a different reason. [00:06:34] Speaker 02: When the case came back on the first remand, and now we're back again, and we did the fifth amended complaint. [00:06:42] Speaker 02: By the way, there was never a third or fourth, so the numbers are kind of skewy. [00:06:46] Speaker 02: But when the fifth amended complaint, no issue was raised at that time. [00:06:51] Speaker 02: And for seven years, no issue was raised about that. [00:06:56] Speaker 02: And so this case came up to the Ninth Circuit on the second time without anybody saying that CARE could not be a representative of its QF members, along with two of its QF members. [00:07:10] Speaker 02: Although, to tell you the truth, I don't think the remedies get narrower if it's just the two individuals instead of CARE. [00:07:16] Speaker 02: But nevertheless. [00:07:17] Speaker 05: I was going to ask you that second. [00:07:18] Speaker 05: Why is CARE in this lawsuit? [00:07:20] Speaker 02: Because it has financed, it has pushed this issue from day one. [00:07:25] Speaker 02: It was an entity that has involved itself in dealing. [00:07:29] Speaker 02: And by the way, there's a reason why they didn't raise it before. [00:07:33] Speaker 02: Because when it came back on remand, [00:07:35] Speaker 02: CARE had a First Amendment claim, and they were claiming that PUC was singling it out in violation of the First Amendment and basically going after it for reasons that were not really valid just because it was irritated with CARE being a constant, you know, presence on this issue and all these different issues for 20 years. [00:07:57] Speaker 02: And so I think they downplayed it and just didn't want to raise that issue and didn't do it. [00:08:02] Speaker 05: Let me ask you one other question before you go on on this one, because all my questions have to do with the status of the plaintiffs. [00:08:13] Speaker 05: With respect to Boyd and Sarvey, what do we do with the fact that they haven't been certified by the CEC, the California Energy Commission, to provide renewable resource [00:08:27] Speaker 05: energy to IOUs? [00:08:31] Speaker 02: Under PURPA, they don't need to be. [00:08:33] Speaker 02: PURPA is a federal law that allows a QF that has been certified under PURPA to challenge whether or not a regulatory agency is enforcing the law against the utilities on how it complies with PURPA. [00:08:56] Speaker 02: That state law can't make a condition for federal participation under PURPA. [00:09:04] Speaker 02: I mean, it's clear that the federal authority supersedes in every sense of the word. [00:09:11] Speaker 05: But doesn't PURPA delegate to the state's certain responsibility? [00:09:14] Speaker 02: Not that one. [00:09:16] Speaker 02: The right of a Q—by the way, if a QF doesn't have the ability now [00:09:24] Speaker 02: to go to federal court and force a regulatory agency to force the individual utilities to comply with the PURPA, there is nothing left of the PURPA enforcement. [00:09:37] Speaker 02: We have watched, as in the different decisions in this case, it get whittled down. [00:09:42] Speaker 02: Every possible avenue of relief that we have sought has been blocked out. [00:09:48] Speaker 01: Let's assume you're right for that point. [00:09:49] Speaker 01: I still don't understand [00:09:52] Speaker 01: After our remand opinion, after our last opinion, and very narrowed what you could allege in a new complaint, I read your seventh amended complaint very carefully, and maybe you can help show me the way. [00:10:10] Speaker 01: I failed to see how you state a claim for relief. [00:10:16] Speaker 01: In other words, where did the district court go wrong on the claim for relief? [00:10:20] Speaker 02: The district court never got to the remand issues because we got sidetracked. [00:10:27] Speaker 01: Look, when we had to do— Tell me then, what is the claim that you—what is the core of your claim that you want to pursue? [00:10:37] Speaker 01: Right. [00:10:39] Speaker 01: After reading the Seventh Amendment complaint, it's like there's all these words and everything, and I can't figure out what the failure to implement is. [00:10:49] Speaker 02: The failure to apply [00:10:51] Speaker 02: the avoided cost rule as it has been defined now by the Ninth Circuit in the last opinion, which in turn modified some previous rulings by the Supreme Court and FERC about what avoided cost is. [00:11:05] Speaker 05: But do you have any transactions to which the avoided cost rule ought to be applied? [00:11:11] Speaker 05: See, that's what my difficulty is. [00:11:13] Speaker 05: I think the avoided cost rule only applies when you have a QF. [00:11:17] Speaker 05: So unless we amend the complaint as to care, [00:11:21] Speaker 05: you don't have a transaction as to care to which it should apply. [00:11:24] Speaker 05: And maybe you've answered me on this, but if the district court was right in thinking that you had to have a certification from the CEC for it to apply, then there are no transactions for Boyd and Sarvey to which it applies. [00:11:39] Speaker 05: So I think that, you know, that may not be the question Judge Fires was asking, but it's the one that bothers me. [00:11:46] Speaker 05: I mean, if we were to hold today that the [00:11:50] Speaker 05: avoided cost calculations of the commission are incorrect, how would your clients benefit? [00:11:59] Speaker 02: My clients have already been removed. [00:12:03] Speaker 02: That portion of their claims, you know, there's a footnote in the previous opinion that said, even if they were guaranteeing the supply of energy, their individual claim for relief is an as-applied claim, so they've got to go to state court. [00:12:19] Speaker 02: So the only thing that is left in this case is whether or not these plaintiffs can come to court and say that the state of California is not enforcing against [00:12:33] Speaker 02: the utilities in general, on behalf of QFs in general, an equitable relief claim, not an individual damages claim, but an equitable relief claim, that PURPA requires the avoided costs to be defined in a way that includes certain specifications that were gradually developed by the courts, including this opinion. [00:12:59] Speaker 02: and that when the state of California issues a new directive, this is avoided cost. [00:13:05] Speaker 02: This is its definition. [00:13:07] Speaker 02: then all QFs are damaged. [00:13:10] Speaker 01: Has FERC issued a regulation defining avoidable? [00:13:15] Speaker 02: Yes. [00:13:15] Speaker 02: The Supreme Court adopted a FERC definition. [00:13:20] Speaker 02: I cited the cases. [00:13:21] Speaker 02: They are in turn relied on by the Ninth Circuit, which said here was the key distinction that occurred. [00:13:27] Speaker 02: The statute actually only initially said avoided costs was a ceiling. [00:13:33] Speaker 02: But what FERC then did and the Supreme Court approved said it was also a floor. [00:13:39] Speaker 02: And the Ninth Circuit adopted that, accepted that. [00:13:43] Speaker 02: Then the remaining questions that were not decided were, number one, how do they deal with multiple sources of energy? [00:13:51] Speaker 02: Do they bundle them all together, or do they have to separate them according to green power versus fossil power? [00:14:00] Speaker 02: And then the second question that was left undecided was, when do they have to include capacity costs? [00:14:06] Speaker 02: Not just their ability to go down the street and buy some additional fuel to replace what the qualified facility is giving them. [00:14:14] Speaker 02: Those are the two. [00:14:15] Speaker 02: And the Ninth Circuit resolved that in this case by cutting the baby in half and saying, in some cases, they have to have capacity. [00:14:23] Speaker 02: In some cases, they cannot multi-tier. [00:14:26] Speaker 02: They have to go separate. [00:14:27] Speaker 02: And some not and some not. [00:14:29] Speaker 02: And PUC got all upset, really, about that. [00:14:32] Speaker 00: I'm sorry to interrupt you, but I know you wanted to save a little bit of time. [00:14:35] Speaker 02: OK. [00:14:36] Speaker 02: I'll just use in about another minute, and I'll save the remaining four. [00:14:40] Speaker 02: Actually, you're down to a minute. [00:14:42] Speaker 02: What's that? [00:14:42] Speaker 02: You're down to a minute. [00:14:44] Speaker 02: My whole 15 minutes? [00:14:45] Speaker 00: Yes. [00:14:47] Speaker 02: It does go fast. [00:14:50] Speaker 00: In any event... But why don't you wrap up, and I'll put a couple of minutes back on the clock. [00:14:53] Speaker 02: Okay. [00:14:54] Speaker 02: The Ninth Circuit right now can do something very simple, and I think it would clean up this case in a hurry. [00:15:00] Speaker 02: Send it back and say, follow the previous opinion, [00:15:05] Speaker 02: go straight to use the record that was before the court before, decide the issues applying the avoided cross definitions that were previously issued, not just deciding those issues, but using the definitions that were issued. [00:15:21] Speaker 02: And then if the plaintiff wins anything, you can talk about having a pleading, which is what we should have done in the first place. [00:15:29] Speaker 00: Thank you, counsel. [00:15:30] Speaker 02: Thank you. [00:15:47] Speaker 04: Good morning, your honors. [00:15:48] Speaker 04: May it please the court, Ian Culver of the California Public Utilities Commission representing appellees. [00:15:54] Speaker 04: My two most important points are these, and I don't think that they've been addressed quite yet. [00:15:58] Speaker 04: Bearing the burden to do so, appellants have not alleged that the district court committed any errors, and the orders of a district court are presumed to be correct and lawful. [00:16:07] Speaker 04: Second, by not briefing it, appellants waived review of the district court's involuntary dismissal of Boyd and Sarvey pursuant to federal rule of civil procedure 41B, [00:16:16] Speaker 04: which in any case is reviewed for an abuse of discretion. [00:16:19] Speaker 00: Counsel, as you know, I sat on this case the last time it came up on summary judgment. [00:16:25] Speaker 00: Given the length and history of this litigation, it's not a surprise to me that it came back up to us again. [00:16:31] Speaker 00: What is a surprise is that it's now before us on the pleadings stage. [00:16:37] Speaker 00: And counsel suggesting maybe it was a strategic mistake somehow for him to go back to the pleadings stage again. [00:16:44] Speaker 00: But why wasn't these issues [00:16:46] Speaker 00: aired before now, because when I were back to sufficiency of the allegation as to whether they're QF, whether they're CEC certified and questions of standing all these years later. [00:17:01] Speaker 04: Your Honor, I think that that's a good question. [00:17:03] Speaker 04: I think it's better addressed to my opposing counsel. [00:17:07] Speaker 04: Certainly, the appellants knew what they needed to plead. [00:17:10] Speaker 04: They had several opportunities to do so, and they failed to do so. [00:17:13] Speaker 05: Well, but you've never been up here before. [00:17:17] Speaker 05: And I'm not suggesting there's any waiver. [00:17:20] Speaker 05: But your side of the case never said, hey, this is an easy case. [00:17:25] Speaker 05: CARE is not a QF. [00:17:27] Speaker 05: This is an easy case. [00:17:28] Speaker 05: Boyd and Sarvey are not certified by the CEC as renewable energy resources. [00:17:36] Speaker 05: Those are very straightforward issues. [00:17:38] Speaker 05: And if they are, as the district court thought in this case, dispositive, why haven't we heard about them before? [00:17:45] Speaker 04: Well, certainly those are easy issues to resolve, Your Honor, but those require evidence and facts, and we just haven't gotten to that point yet. [00:17:52] Speaker 05: Well, no, they don't require evidence and facts because you're up here on a motion to dismiss. [00:17:56] Speaker 00: I would have expected that you would have tried to knock him out on these same grounds before that. [00:18:03] Speaker 04: I wasn't involved in the case that long ago, so I can't speak to the strategic decisions that were made, but, you know, right now, where we are is where we are. [00:18:13] Speaker 00: And failure to state a claim isn't waived, so I'm not suggesting— Yes, no, I'm just curious, because it was a surprise to have it come back on a motion to dismiss stage again. [00:18:24] Speaker 05: Let me ask you, the judge seems to have done two things. [00:18:28] Speaker 05: Well, three things. [00:18:29] Speaker 05: First, no Article III standing. [00:18:32] Speaker 05: Then you don't qualify under the statute for various reasons, Boyd and Sarvey, different than CARE. [00:18:41] Speaker 05: I'm having trouble understanding the Article III ruling. [00:18:46] Speaker 05: I thought that what they were alleging was if these new, if the rules that they think should be adopted were adopted. [00:18:54] Speaker 05: they would get more money for energy they sell to IOUs. [00:19:01] Speaker 05: Why isn't that sufficient to get them standing at the pleading stage? [00:19:05] Speaker 04: I think the problem is in what you just said, is that you thought what they were alleging. [00:19:10] Speaker 05: Well, that seems to be what the complaint says. [00:19:12] Speaker 05: It may be wrong, because they may not be eligible to benefit from a revised rule. [00:19:20] Speaker 05: But I'm not sure that means they don't have standing. [00:19:22] Speaker 05: I'm having difficulty figuring out why they don't have Article III standing to raise the issues. [00:19:28] Speaker 05: But perhaps their complaint should be dismissed for failure to state a claim. [00:19:33] Speaker 05: That's a different issue. [00:19:34] Speaker 04: Well, I think that they're kind of intertwined. [00:19:37] Speaker 04: I think that if they don't show that they have a claim that's within the scope of remand, then they haven't set forth a case in the controversy that this court can decide or that the district court can decide. [00:19:47] Speaker 01: That's not quite correct. [00:19:50] Speaker 01: Just because they don't state a claim doesn't mean they lack constitutional standing. [00:19:56] Speaker 01: means they just don't state a claim for relief, and they're out on the merits. [00:20:00] Speaker 04: I think that what the district court was saying was that reading the complaint as a whole and giving it all reasonable inferences, that it seemed that the appellants, their main gripes were with the utilities, and that- Now let me ask you the question. [00:20:13] Speaker 05: If you really believe there's no Article 3 standing, then didn't the district court err in dismissing the complaint with prejudice? [00:20:22] Speaker 04: I'm not following your honor. [00:20:24] Speaker 05: If there's no Article 3 standing, the district court has no jurisdiction and just has to dismiss the complaint without prejudice. [00:20:31] Speaker 05: If there is Article 3 standing, it may dismiss a complaint with prejudice. [00:20:35] Speaker 05: Which of the two do you want? [00:20:37] Speaker 04: Well, if there was an error, I think that the appellants should have identified it. [00:20:42] Speaker 04: And I don't know that they bring this issue. [00:20:43] Speaker 04: It doesn't matter. [00:20:44] Speaker 05: The court does not have jurisdiction to dismiss a complaint with prejudice if there is no Article III jurisdiction. [00:20:50] Speaker 04: Well, I think that the complaint was. [00:20:51] Speaker 05: I kind of think there is, but you think there isn't. [00:20:53] Speaker 05: So I guess what you want us to do is to tell the court that it erred in dismissing the complaint with prejudice. [00:21:00] Speaker 04: Well, I think that you can affirm the district court's dismissal on numerous grounds. [00:21:04] Speaker 05: Two different dismissals. [00:21:05] Speaker 05: The dismissal here is with prejudice. [00:21:08] Speaker 05: If the district court never had Article III jurisdiction, it has no ability to dismiss with prejudice. [00:21:14] Speaker 05: Now, so I'm asking you, which of the two, let's assume you're going to win, which of the two grounds would you like to win on? [00:21:24] Speaker 04: I think I'd like to win on standing. [00:21:26] Speaker 05: So you'd like a dismissal without prejudice to them refiling this lawsuit with different people and different and different. [00:21:35] Speaker 04: I mean, that's what you're saying. [00:21:36] Speaker 04: Well, that's always been an option for them, your honor. [00:21:38] Speaker 04: They've they've they've exhausted remedies at FERC at some point recently, and they could they could at any time bring a new lawsuit. [00:21:46] Speaker 05: So you think the district court never should have reached the merits. [00:21:50] Speaker 05: of the claims, because if there is no Article III standing, the district court has no jurisdiction to reach the merits of the claims. [00:22:00] Speaker 04: It's not really for me to say, Your Honor. [00:22:01] Speaker 05: Well, it is for you to say, because you're here telling me I want to know what you want. [00:22:04] Speaker 00: Well, you're here. [00:22:04] Speaker 00: Wouldn't you rather go on the 12b6 ground? [00:22:10] Speaker 04: It's not a question I'd consider, I'm sorry. [00:22:13] Speaker 00: OK. [00:22:14] Speaker 00: So assuming that the individuals Boyd and Starvey have Article III standing, the district court did make a ruling that the seventh amended complaint failed to state a claim. [00:22:28] Speaker 00: So in argument, your opposing counsel is saying, well, I don't have to allege any CEC eligible renewable energy resource allegation [00:22:42] Speaker 00: because there's an allegation that they are RPS eligible and there's an allegation that Boyd was certified as a qualifying facility by FERC. [00:22:54] Speaker 00: What's your response to that? [00:22:55] Speaker 04: Well, in order to be RPS certified, then they have to get the certification from the CEC. [00:23:01] Speaker 05: And what's the federal basis for that requirement? [00:23:04] Speaker 04: Yeah. [00:23:05] Speaker 04: It's a state program. [00:23:06] Speaker 00: It's a state program, so that's what council's saying. [00:23:09] Speaker 00: He's saying, well, we don't have to allege that because the federal rules would trump the state requirement that we have to be CEC certified. [00:23:17] Speaker 04: But to get them in the scope of remand on that one question, they need to allege that thing. [00:23:23] Speaker 01: Why? [00:23:24] Speaker 01: That's what I... Why? [00:23:25] Speaker 01: I don't... [00:23:30] Speaker 01: But I understand their theory to be that we narrowed the focus of what relief they could get. [00:23:37] Speaker 01: And they have to allege an implementation claim. [00:23:41] Speaker 01: They can't allege an as-applied claim. [00:23:46] Speaker 01: And so their claim is that the California PUC is not implementing the requirements of PURPA. [00:23:58] Speaker 04: Correct. [00:23:59] Speaker 01: So why is it essential that they have to be beneficiaries or somehow rather qualified by the CEC? [00:24:11] Speaker 04: Because this court said that all of the programs that were at issue last time we were here were proper, but for this one unanswered question. [00:24:22] Speaker 04: And that one answered question relies on the RPS, which is a state program. [00:24:29] Speaker 01: So aren't they saying that state program does not comply with FERC regs? [00:24:36] Speaker 04: I don't know what they're trying to say. [00:24:37] Speaker 04: Well, that's what I was asking him. [00:24:39] Speaker 04: He couldn't answer my question. [00:24:40] Speaker 04: They haven't alleged it. [00:24:41] Speaker 04: They only try to allege it in the most conclusory fashion. [00:24:44] Speaker 04: They didn't set forth any facts. [00:24:46] Speaker 05: Well, their allegation seems to be that the way they're injured is that the avoided cost calculation, in their view, is wrong. [00:24:55] Speaker 05: And therefore, [00:24:57] Speaker 05: they would be underpaid for energy that they sell to IOUs to satisfy their renewable energy requirements. [00:25:10] Speaker 05: And what you're saying is the only place where the IOU's renewable energy requirements are found is under state law. [00:25:20] Speaker 04: only as to this particular program. [00:25:22] Speaker 05: That's right. [00:25:22] Speaker 05: So they're complaining about their inability to get a higher avoided cost calculation in this program. [00:25:30] Speaker 05: And what you're saying is they're not in the program. [00:25:33] Speaker 04: Yes, Your Honor, that's correct. [00:25:35] Speaker 04: And back to your earlier question. [00:25:36] Speaker 05: So that's not a federal claim. [00:25:37] Speaker 05: It's a claim that, it's not a claim that they, it's not a federally related claim. [00:25:42] Speaker 05: What you're saying is [00:25:44] Speaker 05: they think they're good under federal law some number has been miscalculated and had it been correctly calculated they would do better in this program and your answer to that is they're not in this program correct and their at their allegation that the they have met the rps eligibility requirements are deficient because to conclusory to conclusory yes [00:26:10] Speaker 04: I think that this was the most important thing that they needed to allege in the entire complaint, and they repeated it twice. [00:26:18] Speaker 04: But otherwise, it's completely devoid of any facts. [00:26:21] Speaker 04: You would think that if appellants thought that they were entitled to more money, then they would have put a figure in there. [00:26:28] Speaker 04: They would have provided dates. [00:26:29] Speaker 04: They would have provided more specific information if this was the most important thing that they needed to allege. [00:26:38] Speaker 05: Are there, there must be energy providers who would, who are qualified under CEC's program, correct? [00:26:48] Speaker 04: Yes, your honor. [00:26:49] Speaker 05: They would have standing to raise all these issues, in your view? [00:26:53] Speaker 04: Certainly. [00:26:57] Speaker 05: We're eight years into this litigation. [00:27:00] Speaker 05: It appears that is care now one of those or no? [00:27:04] Speaker 05: Because it's a QF. [00:27:05] Speaker 05: Was there any dispute about whether CARE qualifies under the state program as a renewable energy resource? [00:27:12] Speaker 04: It doesn't have a CEC certification. [00:27:14] Speaker 05: So none of the named plaintiffs have CEC certifications? [00:27:17] Speaker 04: Not to my knowledge, no. [00:27:19] Speaker 01: And CARE's... Is it a big deal to get a CEC certification? [00:27:23] Speaker 01: Do you just apply for it and get it, or do you make some sort of showing? [00:27:27] Speaker 04: I'm not aware, Your Honor, I'm sorry. [00:27:35] Speaker 00: Doesn't appear we have any additional questions. [00:27:38] Speaker 04: Thank you, Your Honor, so much. [00:27:39] Speaker 00: Thank you. [00:27:42] Speaker 00: Two minutes on the clock. [00:27:46] Speaker 02: I didn't really finish the abuse of discretion. [00:27:49] Speaker 02: The last element was that given that they did not challenge, and he says now it was strategic decisions for seven years, [00:27:57] Speaker 02: I don't think the court should have denied us the ability to say, OK, they want to raise it now. [00:28:02] Speaker 02: We can fix it. [00:28:03] Speaker 02: And we're fixing it with something that already existed. [00:28:05] Speaker 00: But you didn't fix it. [00:28:07] Speaker 00: We did. [00:28:07] Speaker 00: There's a proposed eighth amended complaint. [00:28:09] Speaker 00: No, no, we didn't. [00:28:10] Speaker 00: It still doesn't say that Boyd and Sarvey are certified by the CDC. [00:28:14] Speaker 02: No, I'm talking about the CARE. [00:28:16] Speaker 05: Is CARE certified by the CEC? [00:28:18] Speaker 02: No, but that's not what I'm saying we fixed. [00:28:20] Speaker 02: I'm saying we fixed the QF standing of CARE. [00:28:23] Speaker 05: I understand your CEC argument, but if we don't buy it, then this amendment is also futile because you're still lacking CEC certification for all three. [00:28:35] Speaker 02: But we just took the position that that's just part of the flaw in failure to enforce. [00:28:39] Speaker 00: Right, we have to agree with you for you to win. [00:28:42] Speaker 02: But the point is that our whole claim is PUC is not. [00:28:45] Speaker 02: He says our gripe is with the utilities. [00:28:47] Speaker 02: That's wrong because you can't sue the utilities under PURPA. [00:28:50] Speaker 02: Our gripe is with PUC for not enforcing. [00:28:54] Speaker 02: The whole judicial notice argument and their motion to strike, we clearly raised the issue of them adopting an avoided cost policy that did not include the definitions from the Ninth Circuit. [00:29:05] Speaker 02: That was alleged in every complaint. [00:29:07] Speaker 02: It was alleged in every argument, in every brief. [00:29:10] Speaker 02: And right up to right now, the judicial notice, we're asking of their policy, now finally finalized, but we did judicial notice before the district court of the earlier versions when it was pending, that they are not doing an avoid. [00:29:23] Speaker 02: The whole case since 2011, 13 years, has been primarily about them not enforcing avoided costs as a minimum. [00:29:32] Speaker 02: using market theories instead of actual replacement costs, not taking into account the capacity costs. [00:29:39] Speaker 02: You build something to get the energy. [00:29:41] Speaker 02: You don't just supply the energy that you shouldn't have to deal with the cheap fossil fuels as the basis. [00:29:48] Speaker 02: We've been saying that from day one, and they can't say that that's not in the complaint. [00:29:52] Speaker 02: So maybe there were not other things and other claims that they're saying we didn't do right, but there has never been a failure to allege those claims. [00:30:00] Speaker 00: all right thank you very much counsel both sides of your argument today the matter is submitted and we'll issue a decision in due course that concludes today's calendar and includes our hearings for the week we're adjourned thank you very much