By DAVID A. LIEB - Associated Press Writer - Associated Press
Tuesday, March 16, 2010
Missouri voters adopted a law in 2008 requiring utilities to offer rebates to customers who install solar power systems. But before voters could act, state lawmakers passed an exemption to the initiative.
A lawsuit released Tuesday asks a Missouri judge to declare the rebate exemption invalid and to order The Empire District Electric Co. to abide by the voter-approved law.
The Joplin-based utility, which serves about 140,000 electric customers in southwest Missouri, contends it legally qualifies for the rebate exemption.
The legal dispute stems partly from the chronology of events in 2008.
On May 4 of that year, supporters submitted petition signatures to the state for a ballot initiative requiring publicly traded utilities to generate a certain percentage of their electricity sales from renewable energy sources. The initiative included a section requiring utilities to offer a rebate of $2 per watt to customers who install solar electric systems.
Less than two weeks later on May 16, the Legislature passed a bill exempting utilities from any solar rebate requirement if — by Jan. 20, 2009 — they achieved a renewable energy capacity equal to at least 15 percent of their total fossil-fuel-fired capacity.
The rebate exemption took effect as law on Aug. 28, 2008. Voters approved the ballot initiative by a two-thirds majority on Nov. 4, 2008.
The lawsuit claims legislators lacked the authority to essentially modify the citizen initiative during the period after supporters had submitted their petition signatures and before it appeared on the ballot.
Although there is no state law addressing that, the argument is derived from a little-known legal theory dating back to court cases in the 1920s, said Henry Robertson, an attorney at the Great Rivers Environmental Law Center in St. Louis, which filed the suit Monday on behalf of two southwest Missouri residents.
Even if lawmakers had the authority, the lawsuit contends the exemption law is in "irreconcilable conflict" with the subsequently passed ballot initiative and thus was effectively repealed.
The lawsuit also claims the rebate exemption violates a Missouri constitutional prohibition against special laws, because its practical effect was to benefit only one company.
"Empire tried to thwart the will of the voters in advance," Robertson said. "Unfortunately for them, their law is useless."
Empire District spokeswoman Emily Stanley said the company exceeded the 15 percent renewable energy threshold in December 2008 with the long-term purchase of power from two wind farms. She said Empire District is therefore clearly excluded from the solar power rebate requirement.
Stanley said Empire District supported the exemption but declined to comment further about the 2008 legislation.
One of the plaintiffs in the lawsuit is James Evans, of Republic, who says he wants to install a solar-power system that could generate up to 10 kilowatts of electricity on his property. According to the formula in the 2008 initiative, that could qualify him for a rebate of up to $20,000. But the lawsuit says Empire District has refused to make the rebate available to him.
The other plaintiff is Kelly Cardin, of Ozark, a firefighter who the lawsuit says wants to install solar-powered panels on the roof of his house.