PHOENIX — A major Arizona utility 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 Ninth 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.
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. 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.
According to court records, SRP, at one time, encouraged 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.
That changed in 2014 when SRP adopted a new pricing plan which says that solar customers who still need to be hooked up to the utility for times when solar is not available can be charged up to 65% more than prior plans. Yet at the same time rates for non-solar customers went up about 3.9%.
“Not surprisingly, applications for solar-energy systems in SRP territory decreased by between 50 and 96%,” wrote Judge Eric Miller for the appellate panel.
That resulted in a lawsuit by several SRP customers who said it discriminates against customers who use solar energy system and makes it impossible for them to obtain any viable return on the solar systems they install, “thereby eliminating any competition from solar energy.”
A lower court threw out the complaint, resulting in this appeal. But Miller said that ruling was in error and flew in the face of what the trial judge herself decided.
“By the district court’s own logic, solar-energy systems are uneconomical, at least in part, because of SRP's exclusionary conduct,” Miller wrote.
The utility attempted to argue that the customers could not allege antitrust injury because they still attempted to use the market alternative that they claim SRP tried to make uneconomical. Miller said that misstates the law.
“Coercive activity that prevents its victims from making free choices between market alternatives gives rise to antitrust injury,” the appellate judge wrote. He said it is not necessary for someone to first prove that all competition has been driven out of the market.
“Rather, the plaintiff need only show that diminished consumer choices and increased prices are the result of a less competitive market due to either artificial restraints or predatory and exclusionary conduct,” Miller said. And that, he said, is exactly what the customers claim: that they were directly and economically hurt by the SRP pricing scheme which is aimed at suppressing competition by discouraging customers from installing solar-energy systems.
“SRP cannot escape liability by portraying (the customers’) injury as mere collateral damage of its exclusionary conduct,” the judge wrote.
The appellate court also rejected the company’s claim that it is entitled to immunity because of what is known as the “filed-rate doctrine.” It says if a rate has been approved by an agency that antitrust challenges cannot be brought.
And that, the court concluded, might be an issue for utilities that get their rates approved by the Arizona Corporation Commission.
“The problem for SRP, however, is that it does not file its rates with anyone other than itself,” Miller wrote. “SRP’s board of directors sets rates unilaterally, unlike other Arizona utilities.”
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