Ariz. company asks Supreme Court to step into rooftop case

Source: Amanda Reilly, E&E New • Posted: Friday, September 15, 2017

An Arizona municipal power company has turned to the Supreme Court in its bid to kill a lawsuit by solar panel installer SolarCity Corp. over fees for homeowners.

The Salt River Project Agricultural Improvement and Power District filed a petition with justices Sept. 7 asking them to reconsider the recent decision by the 9th U.S. Circuit Court of Appeals allowing the lawsuit to go forward.

In the lawsuit, SolarCity argued that the Salt River Project’s fees for homeowners with rooftop solar systems hurt it and its customers, including by lowering demand for SolarCity panels. SolarCity argued that SRP violated federal antitrust law.

Arizona has broadly been at the center of battles over rooftop solar and rate structuring (Climatewire, March 10).

But the Salt River Project says it should have been protected from the suit in the first place. As a public power entity, SRP argues it falls under an immunity doctrine for state actions.

The 9th Circuit, though, denied the utility’s motion to dismiss SolarCity’s lawsuit based on state-action immunity.

Typically, parties aren’t allowed to appeal decisions until a case has fully run its course in a lower court. But SRP wants the Supreme Court to step in now and determine whether a public entity can immediately appeal a court order denying immunity. According to SRP, circuit courts are split on the issue.

The ability to immediately appeal is important, SRP says in its petition, because “once a public entity has been subjected to the burdens of litigation beyond a motion to dismiss, the immunity against suit has been irredeemably lost.”

SRP also argues that, in setting its fees for solar-owning homeowners, it was acting pursuant to Arizona policy.

Allowing a public entity like the Salt River Project “to be haled into court” for following a state’s direction “intrudes sharply” on that state’s sovereignty and “inhibits states’ ability to set policy,” the petition says.

It takes the votes of four justices for the Supreme Court to take up a case.