On June 3, 2019, the US. Court of Appeals for the Ninth Circuit issued a Memorandum Opinion (i.e., not for publication), that reinforced the scope of the role of the district and appellate courts in cases brought under the juridical review scheme of PURPA. In the case below, the plaintiff QFs (Plaintiffs) had succeeded in convincing FERC (in a declaratory order ruling) that the Montana Public Service Commission’s (MPSC) legally enforceable obligation (LEO) standard violated PURPA and that the QFs were entitled to declaratory relief. The QF plaintiffs went to district court to obtain confirmation and an order that the LEO standard that the MPSC had applied was illegal. Before the district court could rule, however, the MPSC set a new LEO standard that it placed into effect prospectively. Nonetheless, the district court provided declaratory relief that the prior LEO standard was unlawful. Both the Plaintiffs and MPSC appealed.
The district court had left all interested parties (including with purchasing utility, Northwestern Energy) with no guidance as to what LEO standard should apply to the Plaintiffs and other QFs that were denied contracts under the illegal LEO standard. The QFs wanted guidance, the MPSC wanted the entire matter found moot. The Ninth Circuit agreed with the MPSC, holding that the district court erred in concluding it could reach the merits of Plaintiffs’ request for declaratory relief. The court found that the request for declaratory relief was moot, given that the MPSC regulation under challenge had been changed before the district court issued its ruling.
Moreover, the Ninth Circuit indicated that the district court did not err in declining to provide Plaintiffs their requested injunctive relief, as that relief was barred by the Eleventh Amendment. The court held that the judicial power of the United States does not extend to suits against one of the United States by citizens of another state unless there is an ongoing violation of federal law and relief properly characterized as prospective. The Plaintiffs, still lacking QF contracts at the desired (allegedly stale) avoided-cost rate viewed their request for relief as prospective, but the Ninth Circuit disagreed, finding that the:
MPSC simply made a one-time determination that Plaintiffs—and those similarly situated—had not established a LEO. Plaintiffs’ ongoing inability to contract with NorthWestern at their preferred rate is a “mere continuing impact from” that alleged past violation and is not a continuing violation of its own.
The Ninth Circuit agreed with the district court that it could not turn back the clock and impose a burden on the MPSC to determine which QFs had established a LEO under the new standard prior to its adoption.