Professional Documents
Culture Documents
IN THE MATTER OF A )
DECLARATORY ORDER REGARDING )
THIRD-PARTY ARRANGEMENTS ) Case No. 09-00217-UT
FOR RENEWABLE ENERGY GENERATION )
)
I. INTRODUCTION
The New Mexico Energy, Minerals & Natural Resources Department (hereinafter
with the New Mexico Public Regulation Commission‟s sua sponte Initial Order dated June 16,
2009, and its Supplemental Order of June 23, 2009, in the above-captioned matter.
production has been, and continues to be, a public policy priority with EMNRD, Governor Bill
energy. New Mexico law does not prohibit these kinds of arrangements, and in fact encourages
their use to meet public policy objectives that are memorialized in statute and regulation.
II. PROCEDURAL HISTORY AND THIRD-PARTY FINANCING ARRANGEMENTS
A. Procedural History
On December 23, 2008, the New Mexico Public Regulation Commission (hereinafter the
“PRC” or the “Commission”) issued a Final Order in each of the following renewable portfolio
1. Case No. 08-00219-UT, In the Matter of El Paso Electric Company’s 2008 Procurement Plan
Pursuant to The Renewable Energy Act and NMAC 17.9.572.16;
2. Case No. 08-000221-UT, Public Service Company of New Mexico’s Notice of Filing of
“Renewable Energy Portfolio Procurement Plan For 2009; and
3. Case No. 08-000222-UT, In the Matter of Southwest Public Service Company’s Annual
Renewable Portfolio Report for 2007 and its Application for Approval of its 2008 Annual
Renewable Energy Portfolio Plan, Modifications to its Existing Rate Making Treatment for
Renewable Energy Certificates and Modifications to the Windsource Program.
In each of these cases, a number of issues were raised that the PRC found were not appropriate
for ruling during the review of the portfolio plans. As a result, the PRC issued its Notice of
Inquiry on January 8, 2009 (Case No. 08-00388-UT) enumerating those unresolved issues and
scheduling a workshop for January 28, 2009 “for the purpose of facilitating informal exploration
of the issues” arising out of the RPS Plan cases. (See Page 4, ¶F, Notice of Inquiry, Case No. 08-
A number of renewable energy developers, along with the referenced utilities and their
representatives, attended the PRC‟s January 28, 2009 workshop. Further questions arose during
this workshop with respect to whether third-party arrangements for renewable energy
generation are prohibited by New Mexico law, specifically the Public Utilities Act, NMSA 1978,
§62-3-1, et seq., The Renewable Energy Act, §62-16-1, et seq., and PRC Commission Rule 572,
codified at 17.9.572 NMAC. This question remained open at the end of the workshop.
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As a result, the PRC issued its June 16, 2009 sua sponte Initial Order (Case No. 09-00217-
UT), in which the PRC initiated a “declaratory proceeding” to address the general question as to
whether third-party arrangements for renewable energy generation are prohibited by New
On June 23, 2009, the PRC filed its Supplemental Order adding a third issue for briefing:
In order for any third-party arrangement to fall within the statutory and regulatory
framework of the PRC, the “third party” must fall under the PRC‟s jurisdiction as a “public
utility.”
Thus, the determinative question before the PRC is whether or not the generator in
third-party arrangements (also known as third party power purchase agreements, or PPAs), as
described in question number one above, constitutes a “public utility” subject to the regulatory
The first step in answering this determinative question is to examine the nature and
evolution of these third party agreements since they were initially introduced during the 1970s
renewable energy from third-party generators. As discussed below, these agreements have
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evolved and are now being used in a number of states by non-utility energy developers, who
have identified a niche market for the distributed generation of photovoltaic solar power on
Historically the purchase power agreement was a mechanism for a utility to purchase
renewable energy from a facility that generated renewable energy, and arose out of the Public
Utility Regulatory Policy Act (PURPA, Sect. 16 U.S.C. 2601 et seq., 1978) requirement that
utilities purchase all of the power from renewable generating facilities under 80 MW, known as
qualifying facilities (QFs). The PPA was the mechanism by which utilities purchased renewable
Recently, however, a number of businesses have emerged adopting a new model of PPA
which caters to the distributed generation (DG) market involving predominantly (although not
side of the electric meter and sized to meet the customers‟ needs. A residential owner might
want a unit between 2 kW and 10 kW and a commercial or industrial customer might want a
In this new model, third party energy developers build and operate renewable energy
customers. The third party provider typically finances the cost of the generating facility, owns
and maintains the facility, and takes advantage of subsidies under federal and state law to the
extent available. The third party energy developer sells the electricity generated from the solar
facility to the customer who owns or occupies the premises. This arrangement is especially
beneficial for entities that cannot take advantage of tax credits, such as governmental entities,
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schools, churches and other non-profit organizations, and other entities that do not have
and incentives that include electricity sales to the host as well as to the servicing utility,
ownership of renewable energy credits (RECs), cash incentives, and state and federal tax
incentives in return for financing, constructing and maintaining a DG facility. Moreover, there is
enough flexibility in these PPAs that the developer and host can customize the mix of financing,
incentives and other costs, so that the rate paid for the life of the PPA can (and will) vary among
different hosts.
As further discussed below, such third-party energy developers do not fit within the
definition of a “public utility” as defined by New Mexico law. Consequently, such developers
are not subject to oversight by the PRC, and thus PPA arrangements entered into between third
party developers and host customers are not prohibited under the New Mexico Public Utilities
Act, and in fact are encouraged by the New Mexico Renewable Energy Act (§62-16-1 et seq.) and
Public Regulation Commission Rule 572 as codified (NMAC 19.9.572). In addition, such
arrangements are fully contemplated by net metering regulations (Title 17 Chapter 9, Part
570.2(B)). PPA arrangements are independent bilateral contracts between two parties who
knowingly and willingly enter into them. They are legal unless prohibited by law. Suggesting
that the referenced provisions of law prohibit third-party PPAs is inconsistent with, and
antithetical to, the public policy delineated by statute, and it would be an insurmountable
barrier to growth of the distributed generation of renewable energy in New Mexico if third
party providers are found to be subject to the complexity and cost of PRC regulation and
requirements.
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III. ARGUMENT
A. Third Party Energy Developers Who Own, Finance, Install, or Maintain Customer-
Hosted Renewable Energy Generating Equipment Do Not Serve the “Public” at Large
or a Portion of the “Public” at Large as Defined By New Mexico Law, and the
“Public” Has no Legal Right to Demand and Receive Electric Service From Such
Third Party Energy Developers, and Thus Third Party Energy Developers Who Sell
Electricity to Host Customers Through Power Purchase Agreements Are Not “Public
Utilities” Under New Mexico Law.
An examination of the New Mexico Public Utilities Act, §62-3-1 et seq. (PUA), the New
Mexico Renewable Energy Act, § 62-16-1, et seq. (REA), and related New Mexico case law
indicates that private entities who install, lease, sell, and/or maintain DG renewable energy
systems on the private property of customer-generators for the purpose of supplying electricity
to the customer and/or for the purpose of net metering are not public utilities pursuant to the
laws of the State of New Mexico. They are therefore not subject to regulation by the New
1. Third Party Energy Developers Are Not Public Utilities as Defined by the PUA
and as Interpreted by the New Mexico Supreme Court
In pertinent part, Section 62-3-3(G) NMSA 1978 of the PUA provides that a public utility
is defined as “every person not engaged solely in interstate business… that may own, operate,
lease or control… any plant, property or facility for the generation, transmission or distribution,
sale or furnishing to or for the public of electricity for light, heat or power or other uses….”
(emphasis added).
whether a third party energy developer‟s sale of electricity to a host customer by means of a
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As discussed below, under New Mexico law a sale from a third party to a customer who
controls the property where the power is generated is not a sale to the public, and thus such
third party energy developers are not “public utilities” under New Mexico law.
In a line of cases beginning with Socorro Elec. Coop., Inc. v. Public Service Co., 32 P.U.R 3d
304, 66 N.M. 343, 348 P.2d 88, N.M., December 21, 1959 (overruled by statute), the New Mexico
Supreme Court has set forth a clear test for determining what selling “to the public” means in
the context of a “public utility.” In that case, Socorro Electric Cooperative (“Socorro”) sought to
block the Public Utility Company from installing a transmission line on the basis that the Public
Utility Act prohibited one public utility from encroaching on the territory of another public
utility. The New Mexico Public Service Commission (the precursor to the PRC) held that it
could not grant relief because Socorro did not sell its electricity to the public and therefore was
not a public utility subject to its jurisdiction. The Public Service Commission arrived at this
conclusion on the basis that, as an electric cooperative with limited service area, rights and
benefits, Socorro did not profess to, nor could it under law, serve the public generally.
Moreover, Socorro could not be compelled to serve the public or a specific individual who
might request such service, in contrast to the statutory obligations, rights and benefits of a
public utility.
The New Mexico Supreme Court agreed. In reviewing the Public Service Commission‟s
decision, the Court explained that the test for whether an entity sells to the public is:
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number of persons may have occasion to use it does not make it a private
undertaking if the public generally has a right to such use.
Socorro, 348 P.2d at 90 (emphasis in original)(citing 73 C.J.S. Public Utilities §2, p.992).
As its name indicates, the term „public utility‟ implies a public use
and service to the public; and indeed, the principal determinative
characteristic of a public utility is that of service to or readiness to serve,
an indefinite public (or portion of the public as such) which has a legal
right to demand and receive its services or commodities.
Id. (emphasis in original) (citing the definition of “public utility” in 43 Am.Jur. 571,
Despite the fact that Socorro possessed many of the trappings of a “public utility,” the
Supreme Court nevertheless concluded that because it was statutorily limited from serving the
public at large, its electric sales to its limited customer base did not constitute sales to the public
The New Mexico Supreme Court arrived at a similar conclusion in Llano, Inc., v. Southern
Union Gas Co., 75 NM 7, 399 P.2d 646, December 21, 1964 (rehearing denied March 26, 1965), in
which Llano Inc., entered into a contract to sell natural gas to International Minerals and
Chemical Corporation. Concerned that Llano, Inc. was intruding on its monopoly franchise to
sell natural gas, the Southern Union Gas Co., a public utility, filed a complaint with the New
Mexico Public Service Commission asserting that Llano would be a public utility if it carried out
its contract with International Minerals and Chemical Corporation. The Commission agreed
and ordered Llano to comply with the Public Utility Act. On appeal, the Supreme Court
reversed the Commission‟s decision, citing the test it had set forth in Socorro.
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out as willing to serve only such other private industrial users as it
selects, if and when additional natural gas reverses are available to it.
Id. at 653. The Court concluded that Llano‟s sale of natural gas through a bilateral
agreement with International did not constitute a sale to or for the public, and thus Llano was
Applying the Court‟s rationale to this declaratory action, a third party energy
developer‟s sale of electricity to a single user by virtue of a bilateral agreement (the PPA) is not
a sale of electricity to the public, and thus does not constitute a transaction subject to PRC
oversight.1
In a more recent case, El Vadito de Los Cerrillos Water Association v. New Mexico Public
Service Commission, 115 N.M. 784, 858 P.2d 1263 (1993), the Supreme Court examined a situation
where a water association provided water service to a limited number of individuals who were
membership. El Vadito de Los Cerrillos Water Association (“El Vadito”) purchased and
upgraded an existing water supply system from an existing water utility. After its purchase of
additional distribution capacity, El Vadito continued to serve a mixed customer base, including
members and non-members of the association. Because El Vadito served non-members, the
Public Service Commission concluded that it was selling to the public, and thus was a public
The New Mexico Supreme Court disagreed and reversed the Commission‟s ruling,
stating that public utilities are characterized by an interest in serving the public at large. Citing
1It is worth noting here that PRC staff seems to agree with this conclusion as indicated by their brief filed
on July 15, 2009 in this matter: “If the third-party owner of the generation only produces power for one
customer and the third-party did not attempt to sale (sic) power to the public or limited portion thereof, it
arguably would not be considered a public utility under applicable law.” (emphasis added) Staff’s Brief
at 7, In the Matter of a Declaratory Order Regarding Third-Party Arrangements for Renewable Energy Generation,
Case No. 09-00217-UT, July 15, 2009.
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their now well-established line of cases addressing this question, including Socorro and Llano,
El Vadito de los Cerrillos Water Ass’n v. N.M. Public Service Commission, 115, N.M. 784, 791,
858 P.2d 1263, 1270 (1993). (See also 64 Am. Jur. 2d Public Utilities, 2nd Edition, Section 3 (2009),
providing that whether an entity constitutes a public utility “does not depend upon the number
of persons by whom it is used, but upon whether or not it is open to use and service of all
desire to offer service to an indefinite public or a segment of the public that has a legal right to
It is clear that when an entity seeks and is granted a certificate of public convenience and
necessity from a regulatory agency, that entity is holding itself out to serve all members of the
public who require electrical service in exchange for a specified reasonable return on
investment, and exclusive monopoly service with respect to any other public utility within the
franchise area. See generally State of New Mexico, ex rel., Jerry W. Sandel, et al., v. New Mexico Public
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Utility Commission, 127 N.M. 272, 980 P.2d 55 (1999) (rehearing denied April 27, 1999), “…a
utility is said to acquire its exclusive control of the industry in a particular area, as well as a fair
providing reliable, non-discriminatory service to all rate-payers in that area,” citing Morningstar
Water Users Ass’n v. New Mexico Pub. Util. Comm’n, 120 N.M. 579, 590-591, 904 P.2d 28, 39-40
(1995).
In contrast to this public utility construct, third party providers neither behave like a
“public utility” nor are they granted special legal and operation status like utilities are. None of
these developers possess monopoly rights to serve interested customers within a geographic
area; none are guaranteed a specified reasonable rate of return on investment; and all could find
Third party energy developers establish individual agreements with each host customer.
Unlike public utility electric service obligations to the public, the terms and conditions in these
agreements do not state that the third party energy developers will provide the same PV or
wind system under the same terms and conditions to anyone other than the customer who signs
one of their agreements. This process allows third party energy developers and their customers
to tailor their systems and all the terms and conditions of their agreements to the particular
needs and constraints of each individual customer. As such, rates charged per kWh are not
retail service rates formulated under law and applied uniformly within specified customer
classes, but rather may vary from agreement to agreement and host to host based on a formula
that includes a range of participation options by the customer in the financing scheme. The only
way more than one customer would have a legal right to demand and obtain the identical
“service” that another customer receives would be if that customer negotiated an identical
private contract with the developer. Contractual relationships by their very nature are intended
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to address and allow non-uniform discriminatory terms and conditions, whereas entities
offering to serve the public generally (i.e., “public utilities”) cannot negotiate different terms
In sum, the contractual agreement establishes the right of service between the third
party energy developer and the customer. That relationship is specifically not governed by the
same structural principles that underlie the relationship between monopoly public utilities
2. Reading the PUA and REA Together, It is Clear the New Mexico Legislature Did
Not Intend for Third Party Energy Developers to Fall Within the Regulatory
Jurisdiction of the New Mexico Public Regulation Commission as a Public Utility.
Notwithstanding the fact that third party PPA arrangements are not specifically
prohibited by the PUA or the REA, in reviewing those statutes together with statutes pertaining
to the same subject matter, there is no doubt that third party energy developers were never
meant to be subject to the jurisdiction of the PRC. New Mexico law repeatedly notes the
importance of developing and increasing the generation of renewable energy in the state, and
Governor Bill Richardson has used his executive authority to enhance the development of
renewable energy generation in New Mexico, to declare New Mexico the clean energy state, and
to address the problem of climate change and implement policies and laws that reduce
2Executive Order No. 2004-019, Declaring New Mexico the “Clean Energy State,” and Creating a Clean
Energy Development Council, and Directing State Agencies to Support and Participate; Executive Order
No. 2005-033, Climate Change and Greenhouse Gas Reduction, creating the Climate Change Action
Council, the Climate Change Advisory Group, and mandating executive agencies to prepare analyses of
the impact of climate change on the State‟s water supply and to develop a greenhouse gas emissions
inventory and forecast, and to produce an annual report assessing progress toward achieving greenhouse
gas emission reductions; Executive Order No. 2006-001, State of New Mexico Energy Efficient Green
Building Standards for State Buildings, mandating that all Executive Branch state agencies, including
Higher Education Department, adopt the U.S. Green Building Council‟s LEED™ rating system to achieve
a LEED™ rating of “Silver” for all virtually all new construction and renovation in excess of 15,000 ft2,
and requiring review of public schools‟ implementation of EO 2005-059 requiring the increased use of
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The legislature has been clear about its determination to increase the generation capacity
of renewable energy in New Mexico and to establish New Mexico as a national center for the
development of renewable energy technologies. In the declaration and findings section of the
New Mexico Solar Rights Act, the legislature declared that “the state of New Mexico recognizes
that economic benefits can be derived for the people of the state from the use of solar energy.
Operations research, experimentation and development in the field of solar energy use shall
therefore be encouraged. While recognizing the value of research and development of solar
energy use techniques and devices by governmental agencies, the legislature finds and declares
that the actual construction and use of solar devices, whether at a public or private expense, is
properly a commercial activity which the law should encourage to be carried out, whenever
Closely linked to the New Mexico Solar Rights Act is the Solar Recordation Act, which
declares “that in view of the present energy crisis, all renewable energy sources must be
encouraged for the benefit of the state as a whole. The legislature further finds that solar energy
is a viable energy source in New Mexico, and as such, its development should be encouraged.
Since solar energy may be used in small-scale installations and one of the ways to accomplish
legislature declares such protection to be the purpose of the Solar Recordation Act [47-3-56 to
47-3-12 NMSA 1978] and necessary to the public interest.” §47-3-6 NMSA 1978.
In addition, the Solar Energy Development Act was passed to “promote development
and use of solar energy in New Mexico, by both industry and government for the benefit of
renewable fuels in New Mexico State Government; Executive Order No. 2006-069, New Mexico Climate
Change Action, establishing a Climate Change Action Implementation Team composed of members from
virtually all executive branch agencies and charged with ensuring implementation of climate change
action in accordance with all executive orders related thereto.
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New Mexico citizens and for the citizens of the United States. It is proposed to accomplish this
purpose through active measures to encourage the location within this state of the proposed
national solar institute, research to discover practical and feasible methods to harness solar
energy to supplement existing but limited present sources of energy and development of a
vigorous and productive solar energy industrial complex.” §71-6-2 NMSA 1978.
Finally, the Solar Energy Collector Standards Act was passed “to develop and
implement a program to promote solar industry and stimulate a demand for high quality solar
renewable energy in New Mexico. They also provide the backdrop for the PRC‟s review of
whether third party energy developers are subject to PRC oversight under the Public Utility
Act, the Renewable Energy Act, and PRC Rule 572. It is important to note here that neither the
PUA nor the REA prohibit third party energy developers from entering into contractual
agreements with individuals who want to install solar energy systems on their premises.
Such policy driven legislation as noted above is wholly consistent with, and in fact
reliant upon market forces driving the development of distributed generation of renewable
necessary for distributed generation. The declarations, goals and objectives of this legislation
and of the numerous executive orders relating to renewable energy simply cannot be
law that third party PPAs are prohibited in New Mexico, flies in the face of clear public policy
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Reading all of these acts in pari materia, it is clear that the New Mexico Legislature did
not intend for the PRC to regulate third parties engaged in the production or sale of renewable
energy at the point of production as if they were public utilities. If, during the flurry of
legislative activity dealing with the development of renewable energy resources in New
Mexico, the legislature had any desire to categorize third party energy developers as a public
utility, they most certainly had the opportunity to amend the PUA to do so, but they did not.
This body should not now attribute legal prohibitions that neither exist, nor were intended by
the legislature. (See, e.g., Public Service Co. v. Diamond D Constr. Co., 2001-NMCA-082 at ¶¶50, 33
P.3d 651., in which the New Mexico Supreme Court delineated the method through which it
reviews and reconciles public policy directives memorialized in law: “We find three such
principles to be helpful in our… [analysis]. First, we consider the legislative purpose behind the
statute in order to best effectuate the intent of the statute and accomplish its objectives. Peterson
v. Wells Fargo Armored Servs. Corp., 2000-NMCA-043, ¶ 14, 129 N.M. 158, 3 P.3d 135. Second, we
use statutes concerning similar subject matter, relevant common law principles, and public
policy to guide us in our interpretation. See Investment Co. of the Southwest v. Reese, 117 N.M. 655,
658, 875 P.2d 1086, 1089 (1994) (determining legislative intent of ambiguous statute from similar
statutes, relevant common law principles, and policy considerations). Finally, we read the
provisions of the statute “together with statutes pertaining to the same subject and seek to
achieve a harmonious result.” State v. Lopez, 2000-NMCA-001, ¶ 5, 128 N.M. 450, 993 P.2d 767;
see also Key v. Chrysler Motors Corp., 121 N.M. 764, 769, 918 P.2d 350, 355 (1996)).
In addition, the PRC even contemplated the participation of third party DG energy
renewable energy facilities. Specifically, the PRC noted that “[i]t is intended that the obligations
of utilities provided for in 17.9.570 NMAC shall extend to both production and consumption
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functions of qualifying facilities irrespective of whether the production and consumption
functions are singly or separately owned.” (emphasis added) §17.9.570.2(B), NMAC. Moreover,
the PRC specifically provided for the contingency that net metering agreements and ownership
of renewable energy credits could be with either the customer or with the third party developer
when it noted that “[i]n situations where the production and consumption functions are
separately owned, the qualifying facility or its operator may elect to enter into the contract with
Nothing under the current net metering regulations or The New Mexico Interconnection
Manual (published by the PRC in 2008) restrict or prohibit a third party from installing a
renewable energy DG net metering system on private property on a contractual basis with a
customer host. To interpret the PUA or the REA to include such third party providers of net
metering systems as “utilities” would be ignoring the plain language of both the statutes and
There is no question that a net metering system provider in these circumstances does not
serve the public at large, but rather serves a single customer-generator pursuant to a private
on the customer side of the meter cannot by definition be a public utility because the energy is
either utilized on the customer side of the meter, or sold to the utility directly. (See §17.9.572.7( I)
providing electric energy to the customer load at that site and/or providing electric energy to a
public utility or a rural electric distribution cooperative for use by multiple customers in one or
more contiguous distribution substation service areas.”) This model of distributed generation
exists primarily to serve the individual customer, and the owner of the system – whether that be
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a third party developer or the owner of the host site - is not obligated to serve the public‟s need
for energy.
In contrast, public utilities are required to meet the public‟s demand for electricity in
exchange for their monopoly rights within a franchise area and their specified reasonable return
on investment.
generation of renewable energy is wholly consistent with the PUA, and with the purposes and
Based on New Mexico statutes, regulations, and case law, third party energy developers
who own, finance, install, and/or maintain customer-hosted renewable energy generating
equipment, and who sell the customer electricity on a kWh basis do not serve the public at large
or a portion of the public at large as defined by law. Moreover, the public has no legal right to
demand and receive electric service from such third party energy developers. Thus, third party
energy developers who sell electricity to host customers through power purchase agreements
are not “public utilities” under New Mexico law, and thus not subject to regulation by the PRC.
As noted above, because third-party energy developers are not subject to regulation by
the PRC, their sale of electricity to single customers through power purchase agreements are not
regulated business. As a result, third party energy developers do not intrude upon a public
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utility‟s monopoly franchise right of service to the public at large within a geographic area.
Such arrangements are not prohibited under New Mexico law, and are thus permissible.
B. The Permissibility of Third Party PPA Arrangements is not Affected by Whether the
PPA is Entered into with a Single Host or Multiple Hosts Who are Supplied With
Renewable Energy From a Third Party Energy Developer.
As noted above, because third-party energy developers are not subject to regulation by
the PRC, their sale of electricity to single customers through power purchase agreements is not
regulated business. As a result, third party energy developers do not intrude upon a public
utility‟s monopoly franchise right of service to the public at large within a geographic area.
Such arrangements are not prohibited under New Mexico law, and are thus permissible.
As noted above, because third-party energy developers are not subject to regulation by
the PRC, their sale of electricity to single customers through power purchase agreements is not
regulated business. As a result, third party energy developers do not intrude upon a public
utility‟s monopoly franchise right of service to the public at large within a geographic area.
Such arrangements are not prohibited under New Mexico law, and are thus permissible.
In addition, Section 62-3-4.1 specifically excludes “persons who own or control electrical
generation, transmission or generation equipment, but lease the equipment or the use and
III. CONCLUSION
Third-party energy developers are not public utilities as defined by New Mexico law.
Consequently, such developers are not subject to oversight by the PRC, and thus PPA
arrangements entered into between third party developers and host customers are not
prohibited under the New Mexico Public Utilities Act. Rather, they are encouraged by the New
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Mexico Renewable Energy Act (§62-16-1 et seq.) and by Public Regulation Commission Rule 572
(as codified in Title 17, Chapter 9, Part 572 of the New Mexico Administrative Code), and a host
of other related statutory provisions. Moreover, such arrangements are fully contemplated by
net metering regulations (Title 17 Chapter 9, Part 570.2(B)). PPA arrangements are independent
bilateral contracts between two parties who knowingly and willingly enter into them, and are
legal unless prohibited by law. Suggesting that the referenced provisions of law prohibit third-
party PPAs is inconsistent with, and antithetical to, the public policy delineated by statute, and
energy in New Mexico if third party providers are subject to the complexity and cost of PRC
Respectfully submitted,
James A. Noel
New Mexico
Energy, Minerals
& Natural Resources Department
1220 S. St. Francis Dr.
Santa Fe, NM 87505
Phone (505) 476-3200
Facsimile (505) 476-3220
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