August 30, Ms. Kavita Kale Executive Secretary Michigan Public Service Commission 7109 W. Saginaw Highway Lansing, Michigan 48917

Transcription

1 DTE Electric Company One Energy Plaza, 1635 WCB Detroit, MI Jon P. Christinidis (313) August 30, 2018 Ms. Kavita Kale Executive Secretary Michigan Public Service Commission 7109 W. Saginaw Highway Lansing, Michigan RE: In the matter of the Complaint of Greenwood Solar LLC against DTE Electric Company concerning violations of the Public Utility Regulatory Policies Act of 1978, MCL 460.6v, and related Commission orders. MPSC Case No. U Dear Ms. Kale: Attached for electronic filing in the above captioned matter is DTE Electric Company s Response Opposing Greenwood Solar, LLC s Motion for Summary Disposition, Affidavit of Timothy Bloch, and the Proof of Service. Very truly yours, JPC/lah Attachments Jon P. Christinidis cc: Service List

2 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the Complaint of ) Greenwood Solar LLC against ) DTE Electric Company concerning ) Case No. U violations of the Public Utility Regulatory ) Policies Act of 1978, MCL 460.6v, and ) related Commission orders. ) DTE ELECTRIC COMPANY S RESPONSE OPPOSING GREENWOOD SOLAR, LLC S MOTION FOR SUMARY DISPOSITION On August 14, 2018, Greenwood Solar, LLC ( Greenwood or Complainant ) filed a motion for partial summary disposition. 1 DTE Electric Company ( DTE Electric, or the Company ) responds that the motion should be denied for lack of merit. Instead, to the extent that the issues presented are ripe for decision, DTE Electric is entitled to partial summary disposition under MCR 2.116(I)(2). FACTS AND PROCEEDINGS Greenwood filed its first motion for summary disposition on May 24, 2018 five days before DTE Electric even answered Greenwood s original complaint. This Judge denied Greenwood s motion as premature at best at the June 5, 2018 prehearing (1T 20). Greenwood also indicated that it planned to file an amended complaint adding interconnection issues (1T 15) and a consensus schedule was set (1T 21 Back on the record in Case No. U I think we have a schedule that everybody has agreed to. ). 1 The fact that Complainant has moved for partial summary disposition is significant because it injects time consuming additional procedural requirements into a proceeding with a previously established consensus schedule as discussed further infra. 1

3 On June 11, 2018, consistent with the consensus schedule, Greenwood filed its amended complaint. On July 9, 2018, consistent with the consensus schedule, DTE Electric filed its Answer and Affirmative Defenses. Greenwood s pending motion concerns Affirmative Defenses 16 and 17, which were contained in both the Company s Original May 29, 2018 Answer and its July 9, 2018 Answer to the Amended Complaint. Those Affirmative Defenses provide: 16. The Commission s Electric Interconnection and Net Metering Standards do not apply here because, for example and without limitation, R a(c) and (n) provides: Applicant means the legally responsible person applying to an electric utility to interconnect a project with the electric utility s distribution system or a person applying for a net metering program. An applicant shall be a customer of an electric utility and may be a customer of an alternative electric supplier. (Emphasis added). Customer means a person who receives electric service from an electric utility s distribution system or a person who participates in a net metering program through an alternative electric supplier or electric utility. Complainant is not a customer of Respondent. The term shall denotes a mandatory duty and excludes the idea of discretion. 2 Complainant s apparent attempt to fit within the Rule is also misguided because the Commission cannot lawfully deviate from its own rules to reach a different result in a particular case. 3 2 Macomb Co Rd Comm n v Fisher, 170 Mich App 697, 700; 428 NW2d 744 (1988); Southfield Twp v Drainage Bd, 357 Mich 59, 76-77; 97 NW2d 281 (1959) ( the word shall is mandatory and imperative and, when used in a command to a public official, it excludes the idea of discretion ). 3 In re Complaint of Consumers Energy Co, 255 Mich App 496, 501; 660 NW2d 785 (2002) (Commission misinterpreted and misapplied its own rule in order to reach its desired result). See also, DeBeaussaert v Shelby Twp, 122 Mich App 128, 130; 333 NW2d 22 (1982) ( Once an agency has issued rules and regulations to govern its activity, it may not violate them ); Bohannen v Sheridan-Cadillac Hotel, Inc, 3 Mich App 81, 82; 141 NW2d 722 (1966) ( When an administrative agency promulgates a rule for the benefit of litigants and then deprives a litigant of this right, it is a violation of both the 1908 and 1963 Michigan Constitutions ). 2

4 17. To the extent that Respondent may be viewed as not fully complying with all timelines and other requirements, then a waiver (under R or otherwise) should be granted. Greenwood filed its testimony on August 10, and its pending motion on August 14. DTE Electric s testimony is due October 30 pursuant to the agreed-upon schedule (1T 21). STANDARDS OF REVIEW Greenwood moves for partial summary disposition pursuant to MCR 2.116(C)(9) (failure to state a valid defense to a claim). A motion under MCR 2.116(C)(9) tests the sufficiency of a defendant s pleadings by accepting all well-pleaded allegations as true. When, as here, a material allegation of the complaint is categorically denied by the Respondent, summary disposition is improper. Only if defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiff s right to recovery, is summary disposition proper. Village of Dimondale v Grable, 240 Mich App 553, ; 618 NW2d 23 (2000) (quoting Domako v Rowe, 184 Mich App 137, 142; 457 NW2d 107 (1990). Greenwood also brought its motion under Rule 426 of the Commission s Rules of Practice and Procedure and MCR 2.116(C)(10) (no genuine issue of material fact). In evaluating a motion brought under this rule, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Only where the proffered evidence fails to establish the existence of a genuine issue regarding any material fact, is the moving party entitled to judgment as a matter of law. Corley v Detroit Board of Education, 470 Mich 274, 681 NW2d 342 (2004). MCR 2.116(I)(2) further provides: If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party. 3

5 In accordance with MCR 2.116(I)(2), DTE Electric is entitled to partial summary disposition on Affirmative Defense 16 based on plain language and controlling law, as indicated in the quote above and further discussed below. At that point, Affirmative Defense 17 would be moot and there would be no need to reach it. 4 To the extent that Affirmative Defense 17 may become relevant, it would also be inherently factual. Therefore, it would be premature to reach Affirmative Defense 17 pending development of the record. DTE ELECTRIC IS ENTITLED TO SUMMARY DISPOSITION ON AFFIRMATIVE DEFENSE 16 Greenwood s motion is tellingly unsupported by any legal authority. Greenwood also does not dispute the legal authorities cited in DTE Electric s Affirmative Defense 16 (quoted above) and effectively admits that it is not a customer of DTE Electric Company. Nowhere in either its Complaints or the instant Motion does Greenwood affirmatively assert that it is a customer of DTE Electric. (See also Attachment A - Affidavit of Timothy A. Bloch confirming that a review of the Company s records revealed no DTE Electric customer named Greenwood, Geronimo Energy or similarly named entities.) Greenwood therefore fails to even present an issue for consideration 5 4 An issue is moot when an event occurs that renders it impossible for the decision maker, if it should decide in favor of the complainant, to grant any relief. Swinehart v Secretary of State, 27 Mich App 318, 320; 183 NW23d 397 (1970). Courts generally dismiss cases presenting only abstract questions that do not rest on existing facts or rights. B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) (dismissing appeals because issue presented became moot). See also, International Union v Michigan, 211 Mich App 20, 29; 535 NW2d 210 (1995) (dismissing claims that had been rendered moot by subsequent developments); Plumbers and Pipefitters Local Union No 190 v Wolff, 141 Mich App 815, 818; 369 NW2d 239 (1985) (declining to address moot issues). 5 It is not sufficient for a party simply to announce a position or assert a claim of error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority to sustain or reject his position. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). See also, Gross v General Motors Corp, 448 Mich 147, , n 8; 4

6 but DTE Electric will respond for completeness. Proper analysis begins with the language at issue. R a(c) and (n) provides: Applicant means the legally responsible person applying to an electric utility to interconnect a project with the electric utility s distribution system or a person applying for a net metering program. An applicant shall be a customer of an electric utility and may be a customer of an alternative electric supplier. (Emphasis added). Customer means a person who receives electric service from an electric utility s distribution system or a person who participates in a net metering program through an alternative electric supplier or electric utility. In In re Complaint of Consumers Energy Co, supra, 255 Mich App at , supra, the Court of Appeals reversed the Commission s misinterpretation of its own Rule, explaining in part that courts apply principles of statutory construction in construing administrative rules. It is also axiomatic that a statute s plain language must be applied as written. 6 As reflected in the highlighted portion of the quote above, R a(c) uses the term shall, which denotes a mandatory duty and excludes the idea of discretion. 7 Thus, for purposes of the Commission s Electric Interconnection and Net Metering Standards, an applicant must be a customer. 528 NW2d 707 (1995) ( Failure to properly brief an issue on appeal constitutes abandonment of the question ); Isagholian v Transmerica, 208 Mich App 9, 14; 527 NW2d 13 (1994). 6 Elozovic v Ford Motor Co, 472 Mich 408, , 425; 697 NW2d 851 (2005) ( The text must prevail.... The Legislature is held to what it said. It is not for us to rework the statute. Our duty is to interpret the statute as written ); Di Benedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000) ( we presume that the Legislature intended the meaning it clearly expressed - no further judicial construction is required or permitted, and the statute must be enforced as written ); Hanson v Mecosta Co Road Comm rs, 465 Mich 492, 504; 638 NW2d 326 (2002); Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992); Ambs v Kalamazoo County Road Comm, 255 Mich App 637, 650; 662 NW2d 424 (2003) ( where the language of a statute is clear, it is not the role of the judiciary to second-guess a legislative policy choice; a court s constitutional obligation is to interpret, not rewrite, the law ). 7 Macomb Co Rd Comm n v Fisher, 170 Mich App 697, 700; 428 NW2d 744 (1988); Southfield Twp v Drainage Bd, 357 Mich 59, 76-77; 97 NW2d 281 (1959) ( the word shall is mandatory 5

7 Greenwood does not dispute these matters. Instead, Greenwood suggests that: When the Rule says, [a]n applicant shall be a customer of an electric utility it could equally well mean, from a grammatical standpoint, either that the applicant shall at the time of application be a customer of an electric utility, or that the applicant shall be, when it is interconnected, a customer of an electric utility (Motion, p 5). Further undermining Complainant s assertion, the interconnection rules already separately define an interconnected customer as a customer-generator. R a(o) provides that Customer-generator means a person that uses a project on-site that is interconnected to an electric utility distribution system (emphasis added). Complainant s position that an entity becomes a customer after it is interconnected would render the definition of customergenerator nugatory and violate the rule that: Effect must be given to every word, phrase, and clause in a statute, and the court must avoid a construction that would render part of the statute surplusage or nugatory. Book-Gilbert v Greenleaf, 302 Mich App 538, 541; 840 NW2d 743 (2013); Jenkins v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004) ( Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory ); MDEQ v Worth Twp, 491 Mich 227, ; 814 NW2d 646 (2012). At bottom, however, Greenwood s suggestion simply defies the plain meaning of the words of the rule. If the Commission had instead intended, as Greenwood wishes, to say that an and imperative and, when used in a command to a public official, it excludes the idea of discretion ). 6

8 applicant shall become a customer of an electric utility instead of an applicant shall be a customer of an electric utility, then the Commission surely could have said so. 8 Greenwood s unsupported suggestion also conflicts with voluminous case law interpreting and applying the phrase applicant shall be according to its plain meaning that is, setting forth requirements that an applicant must meet at the time of application - not some later time after the application process is complete, as Greenwood suggests. See, as an illustrative sampling from different courts, Dothard v Rawlinson, 433 US 321; 97 S Ct 2720; 53 L Ed 2d786 (1977) (upholding physical requirements to get a job as a prison guard, without consideration of the possibility that an applicant could get the job and then perhaps satisfy the weight requirement and otherwise get in physical shape to do the job); Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951) (upholding requirements for people seeking to become optometrists, without consideration of the possibility that somebody could get licensed, and then go to school and otherwise meet the licensing requirements); Carter v Ann Arbor City Attorney, 271 Mich App 425, 434; 722 NW2d 243 (2006), where the Court of Appeals explained that the preference for hiring veterans under the Veterans Preference Act (stating the applicant shall be for various requirements) does not ripen until the veteran can establish that he or she possesses the requisite qualifications for the position.... Similarly, here, the requirements indicated in the Commission s Electric Interconnection and Net Metering Standards do not ripen unless and until the applicant is a customer. Benefits flowing only to existing customers is hardly a novel concept. See, for example, In re Application of Detroit Edison Company to Increase Rates, 297 Mich App 377, ; 823 NW2d 433 (2012), 8 Lash v Traverse City, 479 Mich 180, 189; 735 NW2d 628 (2007); People v McIntire, 461 Mich 147, 160; 599 NW2d 102 (1999). 7

9 aff d 495 Mich 884; 838 NW2d 701 (2013) (affirming refunds to existing customers). Greenwood assumes without basis that it is similarly-situated to existing customers, which it is not. There are fundamental differences between things that exist (like customers) and things that might never exist (like Greenwood s proposed facility). There is nothing discriminatory about treating different things differently. Greenwood suggests that this would be an improper result as a matter of policy. DTE Electric disagrees, but more decisively for purposes of this discussion (and regardless of anyone s point of view), policy considerations must yield to plain language. See, for example, In re Complaint of Consumers Energy Co, supra, 255 Mich App at 501, where the Court of Appeals reversed the Commission for misinterpreting and misapplying its own rule, explaining in part: We agree with the dissenting commissioner that the majority ignored the clear language of the administrative rule to foster customer choice. This is also not a proper forum to discuss rule changes, which instead have a required procedure under the APA. See, for example, In re Public Service Commission Guidelines for Transactions Between Affiliates, 252 Mich App 254, 267; 652 NW2d 1 (2002), where the Court of Appeals vacated the Commission s decision in a case involving a convenient but unlawful path that seems analogous to what Greenwood invites the Commission to now take. The Court explained in part: Invoking the public interest and the need for policy that is responsive to a changing industry, the PSC eschewed the procedural mandates of the APA in favor of its own course of action... While we do not doubt the PSC s legitimate concerns... the process utilized by the PSC constituted a rather heavy-handed rebuke of established APA procedures, and, accordingly, we are compelled to invalidate that process [252 Mich App at ] Without waiving the objections asserted above, DTE Electric also notes for completeness that Greenwood attempts to support its policy viewpoint with a speculative example of potential 8

10 discrimination that has nothing to do with this case. (Motion, pp 3-5). Greenwood s conclusions also ignore the reality that non-utility generator interconnections have been accomplished for years before there were any interconnection rules whatsoever. The Electric Interconnection and Net Metering Standards, R a et. seq., were only promulgated in [See, for example, MPSC Case Nos. U (Order dated August 14, 1992), U (Order dated August 14, 1992), U (Order dated August 14, 1992), U (Order dated August 14, 1992), U (Order dated February 23, 1993), U (Order dated August 3, 1994) and U (Order dated September 21, 1995)] Greenwood just proposes a potential facility, which Greenwood initially suggested to have an expected in-service date of December 31, 2019 (December 12, 2017 letter from Complainant s litigation counsel, attached as Attachment A to Complaint and Amended Complaint), and with continuing uncertain viability (Complaint, numbered paragraphs 35 and 48; Amended Complaint, numbered paragraphs 51 and 64). Greenwood also reaffirms the speculative nature of its contemplated project here. After asserting that the Commission s Electric Interconnection and Net Metering Standards should be misread to say that an applicant shall become a customer of an electric utility (which is wrong as discussed above), Greenwood speculates that it could satisfy its self-created standard: Like most generators, Greenwood anticipates receiving power from the utility for on-site operations, such as project lighting and security equipment (Motion, p 5 (emphasis added)). Such speculation cannot support a decision by the Commission. 9 9 Ludington Service Corp v Comm r of Insurance, 444 Mich 481, 483, , , 507; 511 NW2d 661 (1994), amended 444 Mich 1240 (1994) (unanimously reversing agency decision that was based on speculation instead of the required competent, material and substantial evidence); In re Complaint of Pelland, 254 Mich App 675, ; 658 NW2d 849 (2003); Battiste v Dep t of Social Services, 154 Mich App 486, 492; 398 NW2d 447 (1986) (holding that agency s decision was not supported by evidence that a reasonable person would consider adequate). 9

11 Greenwood further asserts that the applicability of the interconnection rules should be decided now, and responds to anticipated disagreement from DTE Electric (Motion, pp 5-8). DTE Electric instead agrees that the issue could be decided now; however, Greenwood offers an unsupported and unviable position, as indicated above. Greenwood s motion should be denied and DTE Electric is entitled to summary disposition in its favor pursuant to MCR 2.116(I)(2) regarding Affirmative Defense 16, but deciding the matter now would require additional time and administrative procedures. The Complainant has itself unilaterally imposed an extension of the schedule under relevant administrative procedure in this proceeding. Now, unless the Complainant withdraws its Motion for Partial Summary Disposition or the Administrative Law Judge (ALJ) defers decision on the Motion for Summary Disposition until issuance of a complete Proposal for Decision (PFD), the ALJ must issue a partial PFD sufficiently in advance of DTE Electric s testimony filing date (and the hearing), so that the parties may exercise their right to file exceptions under the Rules of Practice and Procedure Before the Commission and the Administrative Procedures Act and obtain a Commission decision. The Administrative Rule cited by Complainant as a basis for the instant motion provides: A party may make a motion for summary disposition of all or part of a proceeding. If the presiding officer determines that there is no genuine issue of material fact or that there has been a failure to state a claim for which relief can be granted, the presiding officer may recommend, to the commission, summary disposition of all or part of the proceeding. If the entire proceeding is disposed of, the presiding officer shall issue a proposal for decision. If only part of a proceeding is disposed of, the presiding officer may issue a partial proposal for decision. [R (emphasis added).] Other Administrative Rules and the Administrative Procedures Act provide as follows: (1) Unless otherwise provided, exceptions to a proposal for decision shall be filed within 21 days after service of the proposal for decision, and replies to exceptions, if provided for, shall be filed within 14 days after the date for filing exceptions. (2) If a party does not file exceptions to a proposal for decision within the time 10

12 permitted by this rule, any objection to the proposal for decision is waived. If a party does not object to a part of a proposal for decision, any objection by the party to that part of the proposal for decision is waived. [R (emphasis added).] (1) When the official or a majority of the officials of the agency who are to make a final decision have not heard a contested case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served on the parties, and an opportunity is given to each party adversely affected to file exceptions and present written arguments to the officials who are to make the decision. Oral argument may be permitted with consent of the agency. (2) The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact and law necessary to the proposed decision, prepared by a person who conducted the hearing or who has read the record. (3) The decision, without further proceedings, shall become the final decision of the agency in the absence of the filing of exceptions or review by action of the agency within the time provided by rule. On appeal from or review of a proposal of decision the agency, except as it may limit the issue upon notice or by rule, shall have all the powers which it would have if it had presided at the hearing [MCL (emphasis added).] Thus, Complainant itself has delayed these proceedings with its aggressive legal tactics and failure to consider the consequences of those tactics. The remainder of Greenwood s argument regarding Affirmative Defense 16 consists of vague and unfounded threats that lack foundation or relevance. For example, nobody claims that DTE Electric is guilty of a misdemeanor, nor is there any merchant plant to make whole (Motion, p 7). DTE Electric maintains that it has done nothing wrong, and declines to digress into hypothetical discussions of unfounded issues. 10 DTE Electric also objects to Greenwood s continuing use of aggressive legal posturing. DTE Electric otherwise maintains all rights to further respond, and of course all appellate rights. 10 Fundamental due process also requires notice of the government s actual claims, and an opportunity to respond to those claims. See generally, US Const, Am XIV; Const 1963, art 1, 17; Viculin v Dep t of Civil Serv, 386 Mich 375, 399; 192 NW2d 449, 462 (1971); Traverse Oil Co v Natural Res Comm n, 153 Mich App 679, 688; 396 NW2d 498, 502 (1986). 11

13 IT IS PREMATURE TO CONSIDER AFFIRMATIVE DEFENSE 17 DTE Electric s Affirmative Defense 17 states: 17. To the extent that Respondent may be viewed as not fully complying with all timelines and other requirements, then a waiver (under R or otherwise) should be granted. R (Rule 12) further provides: An electric utility, alternative electric supplier, or applicant may apply for a waiver from 1 or more provisions of these rules. The commission may grant a waiver upon a showing of good cause and a finding that the waiver is in the public interest Greenwood asserts that DTE s affirmative defense should be declared to be without merit because DTE has wholly failed to follow the required procedure (Motion, p 8). Of course, Rule 12, on its face, sets forth no required procedure other than to ask for a waiver and explain the good cause for granting the waiver. To the extent necessary, DTE Electric will do so efficiently and persuasively through its evidence and pleadings in this proceeding. Greenwood continues by offering four reasons for its assertion, all of which fail for lack of merit and relevance. First, Greenwood suggests that the utility has not applied for a waiver (Motion, p 8). Greenwood neglects that DTE Electric s Affirmative Defense 17 properly raised and preserved the waiver issue for purposes of this case. See generally, MCR 2.111(F). To the extent that some further application may become relevant, Rule 12 plainly provides for it. Second, Greenwood suggests that DTE Electric has not in its application specified which rules it needs a waiver for (Motion, p 8). Greenwood neglects that DTE Electric does not need a waiver for any rules, as asserted in Affirmative Defense 16 and discussed in Argument I above. Affirmative Defense 17 pleads in the alternative to Affirmative Defense 16, which is entirely appropriate. MCR 2.111(A)(2). Since DTE Electric is entitled to summary disposition on 12

14 Affirmative Defense 16, it is unnecessary to reach Affirmative Defense 17, and any consideration of it should be declined as moot. 11 Third, Greenwood asserts that DTE Electric has not made a showing of good cause for waiver of those rules (Motion, p 8). Assuming for argument s sake that any showing of good cause is even necessary (which it is not as discussed above), any showing is inherently factual, and the APA generally precludes decisions based on non-record materials. MCL provides: Evidence in a contested case... shall be offered and made part of the record. Other factual information or evidence shall not be considered in determination of the case except as permitted under [MCL concerning official notice of judicially cognizable facts and facts within the agency s specialized expertise]. DTE Electric s testimony is presently due on October 30 under the agreed-upon schedule (1T 21). To the extent that Greenwood may disagree with DTE Electric s testimony, Greenwood has an opportunity to file rebuttal testimony on December 11. Cross examination is scheduled for December Therefore, any consideration of Affirmative Defense 17 is, at best, premature pending development of the record. Finally, Greenwood suggests that DTE Electric has not sought nor obtained a finding from the Commission that such a waiver or waivers would be in the public interest. (Motion, p 8). To the contrary, DTE Electric has sought a finding (to the extent it may become relevant as discussed above) and of course, DTE Electric has not obtained a finding from the Commission. 11 An issue is moot when an event occurs that renders it impossible for the decision maker, if it should decide in favor of the complainant, to grant any relief. Swinehart v Secretary of State, 27 Mich App 318, 320; 183 NW23d 397 (1970). Courts generally dismiss cases presenting only abstract questions that do not rest on existing facts or rights. B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) (dismissing appeals because issue presented became moot). See also, International Union v Michigan, 211 Mich App 20, 29; 535 NW2d 210 (1995) (dismissing claims that had been rendered moot by subsequent developments); Plumbers and Pipefitters Local Union No 190 v Wolff, 141 Mich App 815, 818; 369 NW2d 239 (1985) (declining to address moot issues). 13

15 We are not at the point in the administrative process where the Commission is able to make any finding, or even reach the issue (even assuming there is one). It is frivolous for Greenwood to suggest that DTE Electric needs to have obtained a finding from the Commission in order to ask the Commission to make that finding. CONCLUSION AND RELIEF REQUESTED Greenwood s Motion for Summary Disposition should be denied. Instead, DTE Electric is entitled to partial summary disposition on Affirmative Defense 16 based on plain language and controlling law. At that point, Affirmative Defense 17 would be moot and there would be no need to reach it. To the extent that Affirmative Defense 17 may become relevant, it would also be inherently factual, so it should not be reached pending development of the record. Respectfully submitted, DTE ELECTRIC COMPANY By: Jon P. Christinidis (P47352) Lauren Duval Donofrio (P66026) One Energy Plaza, Room 688 WCB Detroit, MI (313) Dated: August 30, 2018 FAHEY SCHULTZ BURZYCH RHODES PLC Attorneys for DTE Electric Company Stephen J. Rhodes (P40112) 4151 Okemos Road Okemos, MI (517)

16 Attachment A

17 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the Complaint of ) Greenwood Solar LLC against ) DTE Electric Company concerning ) Case No. U violations of the Public Utility Regulatory ) Policies Act of 1978, MCL 460.6v, and ) related Commission orders. ) STATE OF MICHIGAN ) )ss. COUNTY OFWAYNE ) AFFIDAVIT OF TIMOTHY A. BLOCH Timothy A. Bloch, being first duly sworn, deposes and says: 1. I am a Principal Financial Analyst Regulatory Economics for DTE Electric Company ( DTE Electric or Company ). I have earned a Bachelor of Science in Mechanical Engineering. I have worked for DTE Electric since 1981 in positions of increasing responsibility. My current responsibilities include the development of residential, commercial, industrial, and government rates. I am also responsible for developing and recommending pricing policy and development, application and administration of rate tariff and special contracts, as well as the rules governing service. I have sponsored testimony in numerous Michigan Public Service Commission ( MPSC ) cases. 2. As a Principal Financial Analyst Regulatory Economics, I have significant experience in addressing individual customer concerns and inquiries which frequently involves obtaining information from the Company s billing system. 3. It is my understanding that the MPSC s Electric Interconnection and Net Metering Standards define customer as follows: Customer means a person who receives electric service 1

18 from an electric utility s distribution system or a person who participates in a net metering program through an alternative electric supplier or electric utility. R a(n) 4. In preparation for submitting the DTE Electric s Answer to the Complaint in this proceeding, I was asked to investigate whether the Complainant was or is a customer as defined in the MPSC s Electric Interconnection and Net Metering Standards. 5. As of August 29, 2018, in my review of the Company s billing system and relevant records dating back to 2000, I found no indication that Greenwood Solar, LLC., or Geronimo Energy, or persons utilizing any similar names are, or ever were during this period, customers receiving electric service from DTE Electric s distribution system, or are or ever were participating in DTE Electric s or an Alternative Electric Supplier s (AES) net metering programs. 7. Accordingly, it is my expert opinion that neither Greenwood Solar, LLC., or Geronimo Energy, or persons utilizing any similar names are, or ever were, dating back to 2000, customers of DTE Electric as defined in the Electric Interconnection and Net Metering Standards, R a(n). Further, Affiant sayeth not. TIMOTHY A. BLOCH Subscribed and sworn to before me this 30th day of August, 2018 Lorri A. Hanner Wayne County, MI My Commission Expires: Acting in Wayne County 2

19 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the Complaint of ) Greenwood Solar LLC against ) DTE Electric Company concerning ) Case No. U violations of the Public Utility Regulatory ) Policies Act of 1978, MCL 460.6v, and ) related Commission orders. ) PROOF OF SERVICE STATE OF MICHIGAN ) ) ss. COUNTY OF WAYNE ) ESTELLA R. BRANSON, being duly sworn, deposes and says that on the 30 th day of August, 2018, she served a copy of DTE Electric Company s Response Opposing Greenwood Solar, LLC s Motion for Summary Disposition, and Affidavit of Timothy Bloch, via electronic mail upon the persons referred to in the attached service list. ESTELLA R. BRANSON Subscribed and sworn to before me this 30 th day of August, 2018 Lorri A. Hanner, Notary Public Wayne County, Michigan My Commission Expires:

20 SERVICE LIST MPSC CASE NO. U ADMINISTRATIVE LAW JUDGE Hon. Sally L. Wallace 7109 W. Saginaw Hwy, Fl 3 Lansing, MI wallaces2@michigan.gov Stephen J. Rhodes 4151 Okemos Road Okemos, MI srhodes@fsblawyers.com GREENWOOD SOLAR LLC Timothy J. Lundgren Laura A. Chappelle 201 N. Washington Square, Suite 910 Lansing, MI tjlundgren@varnumlaw.com lachappelle@varnumlaw.com MICHIGAN PUBLIC SERVICE COMMISSION STAFF ATTORNEY Amit T. Singh Heather M.S. Hurian Michigan Public Service Commission 7109 W. Saginaw Hwy, Fl 3 Lansing, MI singa9@michigan.gov durianh@michigan.gov