Winding Creek Solar LLC v. California Public Utilities Commission

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

I. INTRODUCTION

Winding Creek Solar LLC (“Winding Creek”) is the owner and developer of a planned solar project in Lodi, California. In anticipation of construction, 1 Winding Creek sought declaratory and injunctive relief against the California Public Utilities Commission (“CPUC”), claiming that the agency’s policies governing the wholesale price of energy purchased from small facilities like that planned by Winding Creek violates the federal Public Utilities Regulatory Policies Act of 1978 and are therefore preempted by the Federal Power Act.

The CPUC now moves to dismiss the complaint for lack of standing, subject matter jurisdiction, and failure to state a plausible claim for relief. The CPUC also raises an Eleventh Amendment defense. According to the CPUC, no amendment consistent with the allegations of the complaint can cure these fundamental substantive defects. Pursuant to Civil Local Rule 7 — 1(b), the CPUC’s motion to dismiss was found suitable for disposition without oral argument.

Although the CPUC is correct that the complaint as alleged fails to satisfy either constitutional or statutory standing, and violates…