Sz Enterprises, LLC D/B/A Eagle Point Solar v. Iowa Utilities Board, a Division of the Department of Commerce, State of Iowa

IN THE SUPREME COURT OF IOWA
No. 13–0642

Filed July 11, 2014

SZ ENTERPRISES, LLC d/b/a EAGLE POINT SOLAR,

Appellee,

vs.

IOWA UTILITIES BOARD, A DIVISION OF THE DEPARTMENT OF
COMMERCE, STATE OF IOWA,

Appellant,

INTERSTATE POWER AND LIGHT COMPANY, IOWA ASSOCIATION
OF ELECTRIC COOPERATIVES, and MIDAMERICAN ENERGY
COMPANY,

Intervenors-Appellants,

OFFICE OF CONSUMER ADVOCATE, ENVIRONMENTAL LAW &
POLICY CENTER, IOWA ENVIRONMENTAL COUNCIL, IOWA
SOLAR/SMALL WIND ENERGY TRADE ASSOCIATION, IOWA
RENEWABLE ENERGY ASSOCIATION, SOLAR ENERGY INDUSTRIES
ASSOCIATION, and VOTE SOLAR INITIATIVE,

Intervenors-Appellees.

Appeal from the Iowa District Court for Polk County, Carla
Schemmel, Judge.

Utility board appeals district court judgment reversing declaratory

ruling of Iowa Utilities Board finding that a solar rooftop company is a

public utility, as defined in Iowa Code section 476.1. AFFIRMED.

David J. Lynch and Gary D. Stump, Des Moines, for appellant Iowa

Utilities Board.
 2

Scott M. Brennan, Deborah M. Tharnish, and Sarah E. Crane of

Davis Brown Law Firm, Des Moines, Paula N. Johnson, Cedar Rapids,

and Suzan M. Stewart, Sioux City, for appellants Interstate Power and

Light Company and MidAmerican Energy Company.

Dennis L. Puckett and Elizabeth N. Overton of Sullivan & Ward,

P.C., West Des Moines, for appellant Iowa Association of Electric

Cooperatives.

Philip E. Stoffregen, James L. Pray, and Jonathan M. Gallagher of

Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.,

Des Moines, for appellee SZ Enterprises, LLC.

Mark R. Schuling, Consumer Advocate, and Jennifer C. Easler,

Des Moines, for appellee Office of Consumer Advocate.

Bradley D. Klein, Chicago, Illinois, and Joshua T. Mandelbaum,

Des Moines, for appellee intervenors Solar Coalition.
 3

APPEL, Justice.

In this case, we consider whether SZ Enterprises, LLC, d/b/a

Eagle Point Solar (Eagle Point) may enter into a long term financing

agreement related to the construction of a solar energy system on the

property of the city of Dubuque under which the city would purchase

from Eagle Point, on a per kilowatt hour (kWh) basis, all of the electricity

generated by the system. Prior to proceeding with the project, Eagle

Point sought a declaratory ruling from the Iowa Utilities Board (the IUB)

that under the proposed agreement (1) Eagle Point would not be a “public

utility” under Iowa Code section 476.1 (2011), and (2) Eagle Point would

not be an “electric utility” under Iowa Code section 476.22. If Eagle Point

was a public utility or an electric utility under these Code provisions, it

would be prohibited from serving customers, such as the city, who were

located within the exclusive service territory of another electric utility,

Interstate Power and Light Company (Interstate Power). See Iowa Code

§ 476.25(3).

The IUB concluded that under the proposed business

arrangement, Eagle Point would be a public utility and thus was

prohibited from selling the electricity to the city under the proposed

arrangement. Because of its ruling on the public utilities question, the

IUB found it unnecessary to address the question of whether a party who

was not a public utility could nevertheless be an electric utility under the

statute.

Eagle Point brought a petition for judicial review. See id.

§ 17A.19(1). The district court reversed. According to the district court,

Eagle Point’s provision of electric power through a “behind the meter”

solar facility was not the type of activity which required a conclusion that

Eagle Point was a public utility. The district court further found that
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although it was conceivable under some circumstances that an entity

that was not a public utility could nevertheless be an electric utility

under the applicable statutory provisions, Eagle Point’s proposed

arrangement with the city did not make it an electric utility for purposes

of the statutes. The IUB and intervenors MidAmerican Energy Company,

Interstate Power, and Iowa Association of Electric Cooperatives,

appealed. Eagle Point filed a cross-appeal challenging the reasoning, but

not the result, of the district court’s electric utility holding.

For the reasons expressed below, we affirm the decision of the

district court.

I. Factual Background and Proceedings.

A. Introduction. Eagle Point is in the business of providing

design, installation, maintenance, monitoring, operational, and financing

assistance services in connection with photovoltaic solar electric (PV)

generation systems. The city of Dubuque desires to develop renewable

energy for the use of the city.

Eagle Point proposed to enter into a business relationship known

as a third-party power purchase agreement (PPA) with the city that would

provide the city with renewable energy. Under the PPA, Eagle Point

would own, install, operate, and maintain an on-site PV generation

system at a city-owned building to supply a portion of the building’s

electric needs. The city would purchase the full electric output of Eagle

Point’s solar power generation facility on a per kWh basis, which

escalated at a rate of three percent annually. The payments by the city

would not only provide consideration for the electricity provided by the

project, but would also finance the cost of acquiring the generation

system, monetize offsetting renewable energy incentives related to the

system, and cover Eagle Point’s costs of operating and maintaining the
 5

system. Eagle Point would also own any renewable energy credits

associated with the generation system but would credit to the city one

third of any revenues received from the sale of those credits. At the

conclusion of the agreement, Eagle Point would transfer all ownership

rights of the PV generation system to the city.

The PV generation system constructed by Eagle Point would be on

the customer side of the electric meter provided by the city’s electric

utility, Interstate Power. This means that electricity generated by the

system would not pass through Interstate Power’s electric meter. Due to

size limitations, Eagle Point’s PV generation system would not be able to

generate enough electricity to power the entire building. The city would

remain connected to the electric grid and continue to purchase electric

power from Interstate Power to meet its remaining needs at the premises.

B. Proceedings Before the IUB. Eagle Point filed a petition for a

declaratory ruling with the IUB. 1 See id. § 17A.9(1)(a). Eagle Point

sought a declaration from the IUB that it was not a public utility under

Iowa Code section 476.1 and was not an electric utility under Iowa Code

section 476.22. If Eagle Point was not a public utility or an electric

utility under these Code provisions, its proposed relationship with the
city would not run afoul of Iowa’s statutory scheme that provides for

1In light of anticipated interest in the issues, the IUB electronically served a
notice of the pending proceeding to MidAmerican Energy Company (MidAmerican),
Interstate Power, all electric cooperatives, all municipal electric utilities, the Iowa Utility
Association, the Iowa Association of Municipal Utilities, and the Iowa Association of
Electric Cooperatives. Interstate Power, MidAmerican, the Consumer Advocate Division
of the Iowa Department of Justice, the Iowa Association of Electric Cooperatives, the
Iowa Association of Municipal Utilities, the Environmental Law & Policy Center, the
Iowa Environmental Council, the Iowa Solar/Small Wind Energy Trade Association, the
Iowa Renewable Energy Association, the Interstate Renewable Energy Council, Solar
City Corporation, Solar Energy Industries Association, Sunrun, Inc., Suntech America,
the Vote Solar Initiative, and Winneshiek Energy District all intervened in the
administrative proceedings.
 6

exclusive service territories for Iowa’s electric utilities. See id.

§ 476.25(3). On the other hand, if Eagle Point were operating as a public

utility and an electric utility under these Code provisions, its proposed

arrangement with the city would be an unlawful incursion into the

exclusive service territory of Interstate Power. See id.

The IUB held that under the proposed arrangement, Eagle Point

would be acting as a public utility under Iowa Code section 476.1. The

IUB recognized that in Iowa State Commerce Commission v. Northern

Natural Gas Co. [Northern Natural Gas I], this court held that in order to

be a public utility under Iowa Code section 476.1, the record must show

“sales to sufficient of the public to clothe the operation with a public

interest and . . . not . . . willingness to sell to each and every one of the

public without discrimination.” 161 N.W.2d 111, 115 (Iowa 1968). The

IUB also noted that in Northern Natural Gas I the court referred to an

eight-factor test in Natural Gas Service Co. v. Serv-Yu Cooperative, Inc.,

219 P.2d 324, 325–26 (Ariz. 1950), to help determine whether the

business was “clothed with a public interest.” Northern Natural Gas I,

161 N.W.2d at 114–16.

The IUB, however, distinguished Northern Natural Gas I by noting

that the exclusive service territorial statutes applicable to electric utilities

do not apply to gas utilities. See Iowa Code § 476.25(3). The IUB noted

that one of the purposes of exclusive territorial arrangements was to

ensure that utilities do not duplicate each other’s facilities or make

existing facilities unnecessary. See id. § 476.25. The IUB also observed

that the exception to regulation for self-generation in Iowa Code section

476.1 applies to certain electric utilities but not to gas utilities. Because

Eagle Point in the proposed PPA would be selling electricity to the city,

the IUB concluded that the requirement of self-generation was not
 7

present. Further, the IUB believed the limited language excluding

certain self-generation units from the definition of public utility implies

that other arrangements that do not fall within the scope of the exception

are necessarily included in the term public utility.

The IUB placed strong emphasis on the fact that unlike the usual

arrangement in an ordinary facilities lease, Eagle Point was selling

electricity on a per kWh basis. Further, the IUB observed that Eagle

Point’s promotional materials indicated that it would offer its services to

other members of the public and would not limit its activities to the city.

While recognizing that there was not always a bright line regarding what

activities constitute the activities of a public utility, the IUB concluded

that Eagle Point would cross the line if it were allowed to proceed.

Finally, the IUB recognized that it was possible that an entity could

be an electric utility without being a public utility. Nonetheless, because

the IUB had found that Eagle Point was a public utility, it was not

necessary to address the question in this case.

C. Proceedings Before the District Court. Eagle Point sought

judicial review of the IUB ruling. As a preliminary matter, the district

court ruled that IUB’s interpretation of the relevant statutes was not

entitled to deference under NextEra Energy Resources LLC v. Iowa

Utilities Board, 815 N.W.2d 30, 36–38 (Iowa 2012) and Renda v. Iowa

Civil Rights Commission, 784 N.W.2d 8, 14–15 (Iowa 2010). On the

merits, the district court concluded that Eagle Point would not be

operating either as a public utility or as an electric utility.

In reaching its conclusion that Eagle Point’s proposed activities

would not bring it within the definition of public utility, the district court

noted that the IUB did not apply the analysis of Northern Natural Gas I or

the eight-factor approach of Serv-Yu on the ground that regulation of
 8

electricity was different from regulation of natural gas. Additionally, the

district court found that the IUB’s analysis of the exception contained in

Iowa Code section 476.1 was flawed. According to the district court, the

exception did not simply relate to the definition of public utility but

provided that all provisions of “this chapter” shall not apply to qualifying

self-generation. Thus, the exception was not targeted to the definition of

public utility but instead to all aspects of Iowa Code chapter 476.

Further, the district court found that the exception at least suggests

some willingness on the part of the legislature to allow exceptions for

smaller providers.

The district court next considered whether the fact that electric

utilities were subject to exclusive territorial provisions provided a basis

for distinguishing the Northern Natural Gas I case. The district court

concluded that there was no basis for this distinction and held that the

exclusive territory provisions applied only with respect to electric

utilities. The district court reasoned that before the question of whether

Eagle Point was an electric utility could be considered, a threshold

determination needed to be made on the question of whether Eagle Point

was a public utility.

The district court further noted that both gas and electric utilities

were included in the same section, Iowa Code section 476.1, where the

term “to the public” appears. The district court thus believed any test for

determining the meaning of “to the public” should apply both to gas and

electric utilities.

Additionally, to the extent the exclusive territorial structure might

be considered in determining whether Eagle Point’s activities would make

it a public utility, the district court believed that the countervailing policy

of Iowa Code section 476.41 must be considered. This provision states
 9

that “[i]t is the policy of this state to encourage the development of

alternate energy production facilities . . . in order to conserve our finite

and expensive energy resources and to provide for their most efficient

use.” Id. § 476.41.

The district court thus concluded that the IUB committed legal

error in failing to follow the approach of Northern Natural Gas I and its

endorsement of the eight-factor approach of Serv-Yu. In light of the legal

error and the lack of deference to be afforded to the IUB, the district

court proceeded to apply the eight Serv-Yu factors to the facts of the case.

The district court began its evaluation by noting that it should not

consider just one of the Serv-Yu factors in isolation, but should engage in

a “practical approach,” considering “the nature of the actual operations

conducted and its effect on the public interest.” Northern Natural Gas

Co. v. Iowa Utils. Bd. (Northern Natural Gas II), 679 N.W.2d 629, 633

(Iowa 2004). In order to make such an evaluation, the district court

examined each of the eight Serv-Yu factors, recognizing that the eight

factors were not necessarily controlling of the question of whether Eagle

Point was a public utility, but instructive on such question.

The first Serv-Yu factor involves consideration of “[w]hat the

corporation actually does.” Northern Natural Gas I, 161 N.W.2d at 115

(quoting Serv-Yu, 219 P.2d at 325). The district court concluded that the

primary business of Eagle Point was the installation of solar panels and

the economic exchange that occurred between Eagle Point and its

customers was incidental to what the company “actually does.” Id. It

noted that a behind-the-meter solar facility had the same impact on the

customer’s demand of the utility-supplied electricity as behind-the-meter

energy efficiency technologies, a similarity which the district court

observed had previously been recognized by the IUB. See In re Interstate
 10

Power & Light Co., Iowa Utils. Bd., Docket No. EEP-2008-0001 at 11

(June 24, 2009), available at https://efs.iowa.gov/cs/groups/

external/documents/docket/mdaw/mdq0/~edisp/016067.pdf (“The

Board can discern no difference between the use of renewable

technologies and classic energy efficiency measures when those activities

take place on the customers’ side of the meter.”). The district court

found the IUB’s distinction between behind-the-meter electrical

generation by a customer and by a third party as lacking the “practical”

analysis required by Northern Natural Gas II. See 679 N.W.2d at 633.

The district court believed that whether a behind-the-meter energy

project was structured as a PPA or a lease did not change the essential

character of the project or what Eagle Point “actually does.” Therefore,

the district court found this factor did not favor a finding that Eagle Point

was a public utility.

The second Serv-Yu factor involves “a dedication to public use.”

Northern Natural Gas I, 161 N.W.2d at 115 (quoting Serv-Yu, 219 P.2d at

325). The district court concluded that the case only involved a sale to a

single customer on a single site. Eagle Point did not provide service to a

large segment of the population, nor was its activities integral to the

provision of electricity to the public at large. As a result, the second

Serv-Yu factor favored a finding that Eagle Point was not a public utility.

The third Serv-Yu factor involves the “[a]rticles of incorporation,

authorization, and purposes” of the entity. Id. (quoting Serv-Yu, 219 P.2d

at 325). The district court found this factor to be unhelpful and

somewhat irrelevant, concluding that there was no evidence of any intent

to act as a public utility to the public at large in Eagle Point’s certificate

or organization, its operating agreement, or its sales brochures.
 11

The fourth Serv-Yu factor is whether the activity is “[d]ealing with

the service of a commodity in which the public has been generally held to

have an interest.” Id. (quoting Serv-Yu, 219 P.2d at 326). The district

court recognized that this factor might seem to cut in favor of a

determination that Eagle Point was a public utility but noted that the

electricity provided was not dependent upon any common facilities that

served the public and was generated and consumed behind the meter on

the customer’s premises. A shutdown of Eagle Point facilities would be

far less serious than the effects of a shutdown of services by electric

utilities such as Interstate Power. The district court did not specifically

evaluate the impact of the fourth Serv-Yu factor, but seemed to suggest

that while it tipped in favor of a finding that Eagle Point would be a

public utility, the impact of the factor was substantially weakened as a

result of the behind-the-meter context.

The fifth Serv-Yu factor is “[m]onopolizing or intending to

monopolize the territory with a public service commodity.” Id. (quoting

Serv-Yu, 219 P.2d at 326). The district court found that third-party

renewable energy developers were not “natural monopolies,” like electric

and natural gas providers, and that there was ample competition in the

marketplace. Further, the fact that the host always had an electric

utility to fall back upon ensured that PPAs would not produce

unbalanced bargaining power. The district court therefore found that

this factor weighed against finding Eagle Point to be a public utility.

The sixth Serv–Yu factor is “[a]cceptance of substantially all

requests for service.” Id. (quoting Serv-Yu, 219 P.2d at 326). The district

court concluded that the record was inadequate to address this point

and made no conclusions related to it.
 12

The seventh Serv-Yu factor states that “[s]ervice under contracts

and reserving the right to discriminate is not always controlling.” Id.

The district court noted that the PPA involved in this case was an

individually detailed contract. Further, the district court observed that

Eagle Point certainly retained the right to discriminate with whom it

contracted. The district court found the seventh Serv-Yu factor weighed

against a finding that Eagle Point would be a public utility under the

PPA.

The last Serv-Yu factor is “[a]ctual or potential competition with

other corporations whose business is clothed with public interest.” Id.

(quoting Serv-Yu, 219 P.2d at 326). Here, the district court found some

degree of competition, but noted that Eagle Point would never be able to

totally replace the electricity provided by Interstate Power. The district

court stated that Eagle Point was not trying to replace or sever the

relationship between Interstate Power and the city. The district court

thus did not believe this factor would weigh in favor of finding Eagle

Point to be a public utility.

Based on the nature of Eagle Point’s actual operations, their effect

on the public interest, an evaluation of the eight Serv-Yu factors and

Iowa’s legislative policies supporting energy conservation and renewable

energy development, the district court concluded that Eagle Point did not

furnish electricity to the public and thus was not a public utility.

The next question confronted by the district court was whether

Eagle Point nevertheless might be considered an electric utility under

Iowa Code section 476.22 even though it was not a public utility under

Iowa Code section 476.1. The relevant section of 476.22 provides that an

“ ‘electric utility’ includes a public utility furnishing electricity as defined

in section 476.1 and a city utility as defined in section 390.1.” Id. As all
 13

parties agreed that Eagle Point was not a “city utility” under section

390.1, the sole issue was whether the term electric utility in context here

could have a broader meaning than public utility under Iowa Code

section 476.1. While the district court, like the IUB, recognized the

theoretical possibility that an entity could be an electric utility without

being a public utility, the district court held that nothing in this case was

sufficient to sustain the expanded interpretation. The court therefore

concluded that Eagle Point was not an electric utility as defined in

section 476.22 and as used in the exclusive service territory statutes in

sections 476.23–.26.

II. Standard of Review.

A. Introduction. Iowa Code section 17A.19(10) controls judicial

review of an agency decision. See Auen v. Alcoholic Beverages Div., 679

N.W.2d 586, 589 (Iowa 2004). In reviewing an agency interpretation of

statutory provisions, the initial question is “whether the legislature

clearly vested the agency with the authority to interpret the statute at

issue.” NextEra, 815 N.W.2d at 36. If we determine that the legislature

has vested such authority with the IUB, we defer to the agency’s

interpretation of the statute and will reverse the agency’s interpretation

only if it is “irrational, illogical, or wholly unjustifiable.” Iowa Code

§ 17A.19(10)(l); Renda, 784 N.W.2d at 10. If we determine that the

legislature did not vest the IUB with authority to interpret the statute,

then our review is for errors at law and we therefore are not bound by the

agency’s interpretation and may substitute our own to correct a

misapplication of law. Iowa Code § 17A.19(10)(c); NextEra, 815 N.W.2d

at 37; Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006).
 14

B. Positions of the Parties. The IUB 2 maintains that it is

entitled to deference in its interpretation of the terms public utility and

electric utility contained in sections 476.1 and 476.22 respectively. It

recognized that in NextEra, this court held that the IUB was not entitled

to deference with respect to the statutory interpretation questions raised

in that case. 815 N.W.2d at 38. The IUB asserts, however, that a

different result should occur here because unlike the statutory language

involved in NextEra, the terms public utility and electric utility are

substantive terms within the specific expertise of the IUB. It further

argues that the question of subject matter jurisdiction requires an

understanding of complex technical issues such as the purpose of the

exclusive service territory statute and whether Eagle Point’s proposed

project would undermine economical, efficient, and adequate electric

service to the public.

While the IUB concedes that the legislature has provided a

definition for the terms public utility and electric utility, a factor which

ordinarily cuts against a finding that the legislature vested deference

with the agency, the IUB argues that this factor alone is not

determinative. See Evercom Sys., Inc. v. Iowa Utils. Bd., 805 N.W.2d 758,

762–63 (Iowa 2011). It further draws our attention to a number of other

cases where we have granted deference to the IUB in a variety of

contexts. See, e.g., City of Coralville v. Iowa Utils. Bd., 750 N.W.2d 523,

527 (Iowa 2008) (holding the IUB’s interpretation of “rates and services”

in section 467.1(1) was entitled to deference); Office of Consumer

Advocate v. Iowa Utils. Bd., 744 N.W.2d 640, 643 (Iowa 2008)

2The IUB and parties aligned with it will collectively be referred to as the IUB in

this opinion.
 15

(interpreting the “unauthorized-change-in-service” provisions in section

476.103); AT&T Commc’ns of the Midwest, Inc. v. Iowa Utils. Bd., 687

N.W.2d 554, 561 (Iowa 2004) (per curiam) (holding the IUB’s

interpretation of section 476.101(9) was entitled to deference).

Eagle Point 3 believes the IUB is not entitled to deference in its

interpretation of the statutory terms involved in this case. It points to

our statement in Renda that “ ‘[n]ormally, the interpretation of a statute

is a pure question of law over which agencies are not delegated any

special powers by the General Assembly.’ ” 784 N.W.2d at 11 (quoting

Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act,

Report on Selected Provisions to Iowa State Bar Association and Iowa

State Government 62 (1998) [hereinafter Bonfield]). In addition, Eagle

Point contends that the vesting of the IUB with rulemaking authority

does not necessarily mean that the IUB has interpretive power under the

statute. See NextEra, 815 N.W.2d at 38.

Eagle Point further notes the legislature provided specific

definitions for public utility and electric utility in the statute, an

important factor militating against a finding that the IUB is vested with

interpretive power. See Iowa Dental Ass’n v. Iowa Ins. Div., 831 N.W.2d

138, 145 (Iowa 2013); Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789

N.W.2d 417, 423–24 (Iowa 2010). In any event, Eagle Point argues that

the terms “public utility” and “electric utility” are not specialized and that

the court has already interpreted the term “public utility” without giving

deference to the agency. See Renda, 784 N.W.2d at 14. Further, Eagle

Point notes that the term “public utility” is used in other sections of the

3Eagle Point and parties aligned with it will collectively be referred to as Eagle

Point in this opinion.
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Code and that it is important to have a uniform meaning established

through judicial decision rather than a specialized and differentiated

meaning determined by the IUB. See id.

C. Analysis of Deference Issue. We begin our analysis with a

recognition that principles established in Renda suggest we should not

give interpretive deference to the IUB in this case. Renda states that as a

general proposition, agencies are not given deference by this court to an

interpretation of law without some clear indication that the general

assembly intended this result. Id. at 11. In addition, we noted in Renda

and a number of other cases that where the general assembly provides

an agency with a definition of legal terms in a statutory provision, the

use of definitions is a significant factor weighing against an

interpretation requiring deference. See id. at 12; Hawkeye Land Co. v.

Iowa Utils. Bd., 847 N.W.2d ___, ___ (Iowa 2014); Iowa Dental Ass’n, 831

N.W.2d at 145; Sherwin-Williams, 789 N.W.2d at 423–24. Finally, in

Renda, we noted that the use of statutory terms that are not highly

specialized, but are used in other sections of the Code, point in the

direction of lack of deference. See 784 N.W.2d at 14.

We do not conclude that these principles mean that the IUB will

never be granted deference. We focus on the particular statutory

provision at issue in a given case. See id. at 13. Even where definitions

have been supplied by the legislature and the terms are not terms of art,

we leave open the possibility that the structure or subject matter of the

legislation is of sufficient complexity to require that this court defer to

agency legal interpretations. See id. at 14. We do believe, however, that

parties seeking to require this court to defer to legal determinations of

the IUB face an uphill battle where, as in this case, the legislature has
 17

provided definitions of terms that do not on their face appear to be

technical in nature.

We do not believe that the IUB or parties arguing in support of its

decision have made the case for deference. At the outset, 4 we note that

no provision in chapter 476 explicitly grants the agency the authority to

interpret the terms “public utility” and “electric utility.” See NextEra, 815

N.W.2d at 37–38 (“[S]imply because the general assembly granted the

[IUB] broad general powers to carry out the purposes of chapter 476 and

granted it rulemaking authority does not necessarily indicate the

legislature clearly vested authority in the [IUB] to interpret all of chapter

476.”); see also Hawkeye Land Co., 847 N.W.2d at ___; Renda, 784

N.W.2d at 14 (“[B]road articulations of an agency’s authority or lack of

authority should of avoided in the absence of an express grant of broad

interpretive authority.”). Further, after reviewing the “ ‘language of the

statute, its context, . . . purpose . . . and the practical considerations

involved,’ ” we are not “firmly convinced” the legislature intended to vest

the IUB with authority to interpret the terms at issue here. Renda, 784

N.W.2d at 14 (quoting Bonfield, at 63) (emphasis added). Two sub-

conclusions lead us to this determination.

First, the legislature has provided a definition for both “public

utility” and “electric utility,” a significant factor weighing against

4“Deciding whether language contained in a statute applies to a dispute is
clearly an interpretation of law.” Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 260 (Iowa
2012), see also Renda, 784 N.W.2d at 11–14.
In order to properly review the agency’s interpretation of section [476.22],
including the definition of the term ‘[public utility]’ referenced therein, we
must first determine whether the legislature has clearly vested the
[agency] with the authority to interpret section [476.22] and to determine
when and how that section applies to a given dispute.
Burton, 813 N.W.2d at 260.
 18

requiring deference. See Iowa Code § 476.1; id. § 476.22; Hawkeye Land

Co., 847 N.W.2d at ___; Iowa Dental Ass’n, 831 N.W.2d at 145 (“[T]he

legislature has provided its own definition of the term at issue. This

presents an ‘insurmountable obstacle’ to a determination that the

insurance commissioner has been vested with interpretive authority over

‘covered services.’ Instead, it indicates we ought to apply the legislative

definition ourselves.” (quoting Sherwin-Williams Co., 789 N.W.2d at 422–

24)); Sherwin-Williams Co., 789 N.W.2d at 423–24 (“The insurmountable

obstacle to finding the department [of revenue] has authority to interpret

the word ‘manufacturer’ in this context is the fact that this word has

already been interpreted, i.e., explained, by the legislature through its

enactment of a statutory definition.”). Additionally, in interpreting

former chapter 490A, now chapter 476, the court gave no deference to

the agency’s interpretation of “public utility.” See Northern Natural Gas I,

161 N.W.2d at 113 (“The legislature has defined public utility for the

purposes of Chapter 490A . . . . We therefore start with the familiar

statement that the legislature is its own lexicographer when it deems it

advisable to define a word or phrase.”).

Second, the terms “public utility” and “electric utility” are not very

complex and are not “uniquely within the subject matter expertise of the

agency”, as they are used elsewhere in the Code. See Renda, 784 N.W.2d

at 14; Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 344 (Iowa

2013). While the IUB decides some highly complex and technical terms

under Iowa Code chapter 476 that require this court to defer with respect

to the IUB’s legal interpretations, see, e.g., City of Coralville, 750 N.W.2d

at 527 (“rates and services” in section 476.1); Office of Consumer

Advocate, 744 N.W.2d at 643 (“unauthorized-change-in-service” in
 19

section 476.103), we can determine the scope of the legislatively defined

terms in this case without any unusual expertise.

Additionally, as the Gartner court explained, “[t]hese terms are not

exclusively within the expertise of the [IUB].” 830 N.W.2d at 344.

“Instead, the legislature utilized these terms throughout the Iowa Code.”

Id. “For instance, the term [‘public utility’] appears in statutes that the

[IUB] has no role in enforcing.” Id.; see, e.g., Iowa Code §§ 412.5,

422.93, 480A.2(4).

Further, in our recent decision Hawkeye Land Co., we concluded

that the IUB was not entitled to deference with respect to its

determination that a company involved in electrical transmission lines

was a public utility under Iowa Code section 476.1. 847 N.W.2d at ___.

We see no basis to depart from that approach here.

For these reasons, we conclude that under Renda principles as

applied in Hawkeye Land Co. and other cases, the legal interpretations of

the IUB in this case are not subject to deference by this court. See

Hawkeye Land Co., 847 N.W.2d at ___; Renda, 784 N.W.2d at 14. As a

result, the legal issues presented in this appeal must be decided by us

de novo. See Iowa Code § 17A.19(10)(c ); Renda, 784 N.W.2d at 14–15.

III. Background of Third-Party PPAs and Public Utility
Regulation.
A. Introduction to the Third-Party PPA. Traditionally,

electricity has been provided in the United States by large enterprises

that made heavy capital investments to provide power over transmission

lines to customers. See Gregory C. Jantz, Note and Comment, Incentives

for Electric Generation Infrastructure Development, 2 Tex. J. Oil, Gas, &

Energy L. 373, 373–77 (2007) (describing the country’s electricity market

before the 1990s). Over time, the utilities providing electric service came
 20

to be highly regulated in order to advance the public interest and to limit

the effects of monopoly or near monopoly power on consumers. See id.

at 375–77 (describing regulatory developments in the last quarter of the

twentieth century).

In recent decades, however, the traditional approach has been

challenged by several developments. First, there has been an increased

belief in deregulation and competitive marketplaces generally. See

Consumer Energy Council of America Research Foundation,

Restructuring the Electric Utility Industry: A Consumer Perspective 3

(1998). Deregulation in the airline, natural gas, telephone, trucking, and

railroad industries has been largely accomplished, and although

deregulation of public utilities providing energy has not proceeded in a

similar fashion, support for the regulated monopoly approach has been

questioned more recently than in the past decades. Id.

In addition, the desire to promote alternate energy sources seen as

more environmentally friendly has contributed to the search for alternate

models of energy delivery. The federal government has promoted

investment in alternate energy facilities by providing powerful tax

incentives, including a thirty-percent investment tax credit in certain

types of “energy property” and accelerated tax depreciation deductions

for alternate energy projects. See Mark Bolinger, Lawrence Berkeley Nat’l

Lab., Financing Non-Residential Photovoltaic Projects: Options and

Implications i (2009), available at http://emp.lbl.gov/sites/

all/files/REPORT%20lbnl-1410e.pdf [hereinafter Bolinger] (noting the

thirty-percent investment tax credit and accelerated tax depreciation

provided to commercial PV generation systems); Richard Martinson,

Federal Tax Legislation Favors Alternative Energy Development and

Energy Efficiency Initiatives, N.J. Law., June 2011, at 22–24. See
 21

generally James W. Moeller, Of Credits and Quotas: Federal Tax

Incentives for Renewable Resources, State Renewable Portfolio Standards,

and the Evolution of Proposals for a Federal Renewable Energy Portfolio

Standard, 15 Fordham Envtl. L. Rev. 69 (2004).

Finally, in the field of PV generation, technological advances have

made it increasingly feasible to install generation capacity at the source

of consumption without use of centralized power generation and

extended transmission lines. See Samual Farkas, Student Comment,

Third-Party PPAs: Unleashing America’s Solar Potential, 28 J. Land Use &

Envtl. L. 91, 92–93 (2012) [hereinafter Farkas]. These decentralized

retail generation projects are located “on the customer’s side of the

meter.” Id. at 93. The sheer number of such solar energy facilities has

thus grown rapidly in recent years. See Bolinger, at i. (noting compound

annual growth rate between 2000 and 2007 of fifty-nine percent for grid-

connected PV systems).

As detailed in a recent technical report published by the United

States Department of Energy, however, there are significant barriers to

the installation of on-site solar energy facilities. See Katharine Kollins, et

al., Nat’l Renewable Energy Lab., U.S. Dep’t of Energy, Solar PV Project

Financing: Regulatory and Legislative Challenges for Third-Party PPA

System Owners 1, 3, 33–35 (2010), available at http://www.nrel.gov/

docs/fy10osti/46723.pdf [hereinafter Kollins]. Most prominently, the

initial capital costs remain quite high, often in the millions of dollars or

more. See id. at 3; Farkas, 28 J. Land Use & Envtl. L. at 93, 98. Entities

that do not pay taxes, such as government or nonprofit organizations,

cannot even offset these costs by realizing the economic benefits of

favorable tax treatment of alternative energy investments. See Farkas,

28 J. Land Use & Envtl. L. at 100. Additionally, some potential PV
 22

investors are weary of unpredictable fluctuations in electricity prices and

are concerned about their ability to provide maintenance and upkeep for

facilities driven by unfamiliar technology. See Kollins, at 34.

In order to overcome these barriers, proponents of alternate energy

facilities have developed a method of financing construction of solar

facilities called third-party power purchase agreements, or PPAs. See id.

at 3, 33–35. Under the PPA model, the developer builds and owns the PV

generation system, which is constructed on the customer’s site. Id. at 3.

The developer–owner then sells the electric power to the consumer at a

preestablished fixed rate, thereby providing the customer with a hedge

against price increases from the traditional electric utility serving the

location. See id. at 33–34. PPAs thus minimize the up-front cost barrier,

see id. at 33, and greatly stabilize, if not reduce, costs for the consumer

thereafter, Farkas, 28 J. Land Use & Envtl. L. at 99. In addition, the

developer–owner is ordinarily a private income-generating entity able to

take advantage of the tax benefits afforded to alternative energy

development. See Kollins, at 33–34. Moreover, the developer–owner,

who maintains the system, is an expert with PV technology. Id. at 34.

Thus, under a PPA, the developer–owner absorbs the high initial costs,

retains the responsibility of maintenance of the system, and is

compensated based on electricity actually produced by the system.

A fundamental legal question, however, is whether PPAs may

coexist with traditional public utilities within the existing state regulatory

environment. A threshold question is often whether the developer–owner

in a third-party PPA is a public utility or electric supplier subject to state

regulation. This definitional question often turns on whether the

developer–owner in a third-party PPA is regarded as furnishing or

supplying electricity “to the public.”
 23

The consequences of this threshold determination are critical to

the viability of third-party PPAs. In states where public utilities have

exclusive service areas, a finding that a PPA is a public utility generally

means that a PPA violates the exclusive territory provisions of state law

and is thus unlawful. See, e.g., Iowa Code §§ 476.1, .22, .25(3). In

states where public utilities do not have exclusive service areas, the

consequence is that PPAs may be subject to substantial regulation as a

public utility, including requirements to submit tariffs and to provide

service to all who desire it. See, e.g., N.H. Rev. Stat. Ann. § 374-F:4(111)

(LexisNexis 2008).

B. State Caselaw on What Constitutes a “Public Utility”

Providing Services “to the Public.” The notion that private entities

may be so affected by the public interests that public duties arise from

their activities has ancient common law origins. For example, at

common law, mills provided essential services to medieval inhabitants

and gave rise to a common law duty to serve. See Jim Rossi, The

Common Law “Duty to Serve” and Protection of Consumers in an Age of

Competitive Retail Public Utility Restructuring, 51 Vand. L. Rev. 1233,

1244–45 (1998). Medieval subsistence farmers without access to the mill

went hungry and, as a result, duties to serve were imposed. See id. The

common law duty to serve was later extended to ferries, markets and

other essential enterprises. Id. at 1245.

The common law tradition has influenced some state courts when

construing statutes defining public utilities or service to the public. One

line of authority relies on the notion that in order to be a public utility

serving the public generally, the entity must directly or indirectly hold

itself out as providing service to all comers. See, e.g., City of Englewood

v. City & Cnty. of Denver, 229 P.2d 667, 672–73 (Colo. 1951), abrogated
 24

by statute, as recognized in Bd. of Cnty. Comm’rs v. Denver Bd. of Water

Comm’rs, 718 P.2d 235, 244 (Colo. 1986). Under this theory, a business

that provides sporadic services of a commodity that might ordinarily be

associated with a public utility might not be drawn within the ambit of

regulation. See id. at 673 (“The nature of the service must be such that

all members of the public have an enforceable right to demand it.”);

Mississippi River Fuel Corp. v. Ill. Commerce Comm’n, 116 N.E.2d 394,

399 (Ill. 1953) (“Selling gas to a limited group of industrial customers

cannot properly be characterized as devoting property to a ‘public use.’ ”).

On the other hand, a different line of authority has developed a

more flexible notion of what amounts to a public utility. These cases use

a functional approach and concentrate on the nature of the underlying

service and whether there is a sufficient public need for regulation. See,

e.g., Indus. Gas Co. v. Pub. Utils. Comm’n, 21 N.E.2d 166, 168 (Ohio

1939) (holding “[a] corporation that serves such a substantial part of the

public as to make its rates, charges, and methods of operations a matter

of public concern, welfare and interest subjects itself to regulation”);

Serv-Yu, 219 P.2d at 325–26 (applying eight factors to assist in

determination of whether public interest requires regulation).

C. Iowa Caselaw on What Constitutes a “Public Utility”

Providing Services “to the Public.” The current Iowa public utilities

regime was enacted in 1963. 1963 Iowa Acts ch. 286 (codified as

amended at Iowa Code ch. 476 (2011)); see Iowa-Illinois Gas & Elec. Co.,

125 Iowa 1029, 1034, 129 N.W. 832, 835 (1964). Our first case

considering the meaning of public utility for purposes of the statute was

Northern Natural Gas I. In Northern Natural Gas I, we considered whether

a gas company with more than five thousand miles of pipeline within the

state and with almost 1800 retail customers was a public utility. 161
 25

N.W.2d at 112, 113–15. We held that it was. Id. at 115. In doing so, we

favorably cited Serv-Yu and its eight factors. See id. We concluded that

the term “to the public” as used in the statute meant “sales to sufficient

of the public to clothe the operation with a public interest and does not

mean willingness to sell to each and every one of the public without

discrimination.” Id. We specifically rejected what we called the “rigid

test” of the Colorado cases. Id. at 116.

In finding the plaintiff to be furnishing gas to the public, we noted

in Northern Natural Gas I that

(1) [p]laintiff [dealt] in a commodity in which the public as a
whole is generally interested, (2) it [was] actually engaged in
supplying its commodity to some of the public[, and] (3) [i]t
served a substantial portion of the public.

Id. Yet, we suggested in Northern Natural Gas I that anticipated

expansion to large numbers may determine the outcome. See id.

Three justices dissented in Northern Natural Gas I. Id. at 119

(Stuart, J., dissenting). The dissenters argued that the phrase “to the

public” meant to the public and not individualized contractual sales. Id.

at 121. The dissenters asserted that the approach to the phrase “to the

public” was not consistent with the commonly accepted meaning of
public sales and public service. Id. at 119. The dissenting justices

embraced the traditional common law view that a public utility had a

duty to serve members of the public. Id. at 121.

Ten years ago we revisited the issue in Northern Natural Gas II. In

that case, we recognized that while the traditional approach may have

been construed as requiring indiscriminate offer of services to the public,

the court took a different path in Northern Natural Gas I. Northern

Natural Gas II, 679 N.W.2d at 633. We reaffirmed that in order to resolve

the question of whether a certain activity was clothed with sufficient
 26

public interest to qualify as sales “to the public,” a “practical,”

multifactored approach was required to determine the issue. Id.; see

also State ex rel. Utils. Comm’n v. Simpson, 246 S.E.2d 753, 757 (N.C.

1978) (noting the Iowa Supreme Court’s approach in Northern Natural

Gas I, “[i]s [the] type of flexible interpretation that is necessary to

comport legislative purpose with the variable nature of modern

technology”). We expressed the conservative principle, however, that to

the extent there might be a sufficient public interest to support

regulation, jurisdiction should be extended “only as necessary to address

the public interest implicated.” Northern Natural Gas II, 679 N.W.2d at

633.

D. State Precedents on Whether Third-Party PPAs Are Subject

to Regulation as “Public Utilities.”

1. Decisions holding PPAs are public utilities subject to state

regulation. In PW Ventures, Inc. v. Nichols, the Florida Supreme Court

considered whether a cogeneration project proposed by PW Ventures for

an industrial site amounted to a public utility under a Florida statute.

533 So. 2d 281, 283–84 (Fla. 1988). The statutory provision defined a

“ ‘public utility’ ” as “ ‘every person . . . supplying electricity . . . to or for

the public within this state.’ ” Id. at 282–83 (quoting Fla. Stat.

§ 366.02(1) (1985)). Under the proposed agreement, PW Ventures would

construct, own, and operate the project on land leased from the site. Id.

at 282. PW Ventures would then sell its output to the industrial site

under a long-term contract. Id. The Florida Public Service Commission

held that PW Ventures would be a public utility under the proposed

contract. Id. at 283. PW Ventures appealed.

The Florida Supreme Court characterized the question of whether

PW Ventures would be a public utility as “not without doubt.” Id. The
 27

court noted, however, that under applicable law, it applies a deferential

review to Public Service Commission decisions and would not depart

from them unless “clearly unauthorized or erroneous.” Id.

Applying the “clearly unauthorized or erroneous” standard, the

Florida Supreme Court upheld the decision of the Public Service

Commission. Id. at 284. It noted that the legislature had granted

express exemptions from regulation for natural gas suppliers who market

wholesale or direct to industrial customers and for water and sewer

systems that serve fewer than one hundred persons, but that the

legislature did not provide a similar exemption for electrical suppliers.

Id. at 283.

The Florida Supreme Court also noted that the decision of the

Public Service Commission was consistent with “the granting of

monopolies in the public interest.” Id. The Florida Supreme Court

emphasized that PW Ventures proposed “to go into an area served by a

utility and take one of its major customers.” Id. The court observed that

“[t]he effect of this practice [is] that revenue that otherwise would have

gone to the regulated utilities which serve the affected areas would be

diverted to unregulated producers.” Id. Further, according to the court,

if PW Ventures were to prevail, nothing would prevent “one utility

company from forming a subsidiary and raiding large industrial clients

within areas served by another utility.” Id. at 283 n.5.

One Florida justice dissented. Id. at 284 (McDonald J.,

dissenting). According to the dissent, the phrase “to the public” in the

applicable Florida statute did not mean a sale to a single industrial host,

but instead to the people as a whole. Id. According to the dissent,

providing electricity to a single industrial customer was plainly

insufficient. Id. at 284–85.
 28

2. Decisions holding PPAs are not public utilities subject to state

regulation. Aside from PW Ventures, the parties have not cited, and we

have not found, appellate caselaw on the question of whether the

developer-owner under a PPA is a public utility within the scope of

regulatory statutes. There are, however, a number of regulatory

decisions that address the issue. Several of them—Arizona, Nevada, New

Mexico, and Oregon—have come to the conclusion that the developer–

owners of PPAs are not public utilities under applicable statutes or

constitutional provisions. See In re Application of SolarCity Corp., Ariz.

Corp. Comm’n, Docket No. E-20690A-09-0346, at 69–70 (July 12,

2010), available at http://images.edocket.azcc.gov/docketpdf/

0000114068.pdf; Order, Pub. Utils. Comm’n of Nevada, Docket No. 07-

06027, at 12 (Nov. 26, 2008); In re A Declaratory Order Regarding Third-

Party Arrangements for Renewable Energy Generation, N.M. Pub. Reg.

Comm’n, Case No. 09-00217-UT, at 13 (Dec. 30, 2009), available at

http://www.nmprc.state.nm.us/commissioners/jasonmarks/docs/Third

%2520Party%2520Order.pdf; Honeywell Int’l, Inc. v. PacifiCorp, Pub. Util.

Comm’n of Oregon, Docket No. DR 40, Order No. 08-388, at 15 (July 31,

2008), available at http://apps.puc.state.or.us/orders/2008ords/08-

388.pdf; see also Kollins, at 11–13 (cataloging state administrative

decisions).

We begin with a review of the decision of the Arizona Corporation

Commission in SolarCity. In SolarCity, a developer sought a declaratory

ruling that its method of providing solar facilities to the Scottsdale United

School District did not amount to a “public service corporation” under

article 15, section 2 of the Arizona Constitution. Solar City, Docket No.

E-20690A-09-0346, at 3. Under the stated facts, SolarCity proposed to

enter into what it called a solar services agreement (SSA) whereby it
 29

would pay the upfront expenses associated with construction of the solar

facility. Id. at 5–6. The customer would pay SolarCity “for the design,

installation, and maintenance of the system based on the amount of

electricity produced.” Id. at 6. Unlike ordinary PPAs, the SSA explicitly

provided that the customer was the “owner” of all electricity produced by

the system. Id. SolarCity structured the agreement in order to comply

with federal tax law and allow SolarCity to take advantage of available

tax benefits. Id. The question posed was whether under the proposed

transaction SolarCity would come within the scope of article 15, section

2 of the Arizona Constitution, which provides that a “corporation[] . . .

engaged in furnishing . . . electricity . . . shall be deemed [a] public

service corporation[].” Id. at 7.

Arizona appellate court precedent provides that analysis under

article 15, section 2 involves a two-step process. Sw. Transmission

Coop., Inc. v. Ariz. Corp. Comm’n (SWTC), 142 P.3d 1240, 1243 (Ariz. Ct.

App. 2006). The first step is to determine whether an entity meets the

textual definition of a “public service corporation.” Id. Merely meeting

the textual definition is not enough. Id. at 1244. In addition, an entity’s

business and activities

must be such as to make its rates, charges and methods of
operation, a matter of public concern, clothed with a public
interest to the extent contemplated by law which subjects it
to governmental control—its business must be of such a
nature that competition might lead to abuse detrimental to
the public interest.

Id. at 1244–45.

On the first question, the Arizona Corporation Commission

determined that SolarCity was “furnishing electricity” to its customer.

SolarCity, Docket No. E-20690A-09-0346, at 24–25. It noted that the

purpose of the relationship was to sell or provide electricity. Id. at 24. It
 30

rejected the notion that the contractual language relating to ownership of

electricity was material to evaluation of the transaction, noting that

SolarCity cannot “own” the equipment for tax purposes and then claim it

did not “own” the electricity for purposes of regulation. Id. The

commission found that at first, “the SSA transaction may appear to meet

the textual definition of a public service corporation under the

Constitution.” Id. at 25. “However, SolarCity is not in the business of

selling electricity, but rather, is in the business of designing, financing,

installing, and monitoring solar systems for residential and commercial

customers” and therefore “[f]urther consideration must be given to the

public interest and the entity’s primary business purpose, activities and

methods of operation.” Id.

The commission next turned to considering the second question in

its analysis, namely, whether the entity’s business and activities were

sufficiently “clothed with the public interest” to trigger regulation. Id. at

25–53. Here, the commission applied the Serv-Yu Factors. Id. In SWTC,

the Arizona Supreme Court acknowledged that in Serv-Yu, the Arizona

Supreme Court announced eight factors to be considered in determining

whether an entity was “clothed with a public interest” and subject to

regulation because they were “indispensible to [the] population.” 142

P.3d at 1244, 1245. The eight factors are:

(1) What the corporation actually does.

(2) A dedication to public use.

(3) Articles of incorporation, authorization, and purposes.

(4) Dealing with the service of a commodity in which the
public has been generally held to have an interest.

(5) Monopolizing or intending to monopolize the territory
with a public service commodity.
 31
(6) Acceptance of substantially all requests for service.

(7) Service under contracts and reserving the right to
discriminate is not always controlling.

(8) Actual or potential competition with other corporations
whose business is clothed with the public interest.

Id. at 1244.

Applying the Serv-Yu factors, the Arizona Corporation Commission

concluded that SolarCity was not “clothed with a public interest”

sufficient to draw it within the scope of regulation. SolarCity, Docket No.

E-20690A-09-0346, at 52–53. In reaching this conclusion, the

Commission noted that (1) SolarCity did not “affect so considerable a

fraction of the public,” did not seek to “stand in the place of the

underlying utility,” and did not provide continued service to the customer

(Serv-Yu factor 1); (2) the activity of SolarCity was “not integral to the

public at large” (Serv-Yu factor 2); (3) SolarCity’s articles of incorporation

did “not reflect an intent to act as a public service corporation” (Serv-Yu

factor 3); (4) SSAs never generated more than fifty percent of the power of

the host and the ramifications of a shutdown were far less than that of a

regulated utility (Serv-Yu factor 4); (5) SolarCity did not hold itself out to

all customers and was not capable of providing comprehensive service

that could expand into a monopoly (Serv-Yu factor 5); (6) SolarCity must

compete with other suppliers and thus did not accept most, if not all

requests for service (Serv-Yu factor 6); (7) SolarCity used individualized

contracts counterbalanced by broad business solicitation (Serv-Yu factor

7); and (8) although SolarCity providers displaced power sales by

incumbent utilities, they did not replace existing utilities and assist them

to reach distributed generation goals (Serv-Yu factor 8). See id. at 30–31,

36, 37, 42, 46, 48, 49–50, 52.
 32

The question of whether a PPA involving solar energy was subject

to regulation as a “public utility” was also confronted by the New Mexico

Public Regulation Commission. See generally In re a Declaratory Order

Regarding Third-Party Arrangements for Renewable Energy Generation,

N.M. Pub. Reg. Comm’n, Case No. 09-00217-UT. In this request for a

declaratory order, the New Mexico Public Regulation Commission

considered “under what circumstances . . . a developer contracting with

an electric utility customer to provide supplemental electricity become[s]

an electric utility within the meaning of the [New Mexico Statute

Annotated section 62-3-3(G)(1) (2009)].” Id. at 7. The commission

determined the key to this question was the meaning of the phrase “to

the public” in the statute, which provided that a “ ‘public utility’ or

‘utility’ means every person . . . that may own, operate, lease or control

. . . any plant, property or facility for generation, . . . sale or furnishing to

or for the public of electricity.” Id. The commission rejected a bright-line

test based on the number of customers. Id. at 7–8.

Relying on a case of the Supreme Court of New Mexico (which itself

relied heavily on Northern Natural Gas I), the commission stated that in

order to be considered a public utility under the statute, the sales must

involve “ ‘sufficient of the public to clothe the operation with a public

interest.’ ” Id. at 9 (quoting Griffith v. N.M. Pub. Serv. Comm’n, 520 P.2d

269, 272 (N.M. 1974)). It relied on New Mexico caselaw, however, to

conclude that in order to be clothed with a public interest, creating an

expectation of “a legal right to demand and receive . . . services” is the

principle determinative feature of a public utility. Id. at 10 (quoting

El Vadito de los Cerrillos Water Ass’n v. New Mexico Pub. Serv. Comm’n,

858 P.2d 1263, 1269 (N.M. 1993) (emphasis removed)). Further, the

commission noted that PPAs were only providing a supplemental service.
 33

Id. at 11. Additionally, the commission noted that the fact that

developers placed advertisements in the Albuquerque Journal and

elsewhere did not constitute “holding out” to the general public and was

therefore insufficient to clothe their operations with the public interest.

Id. at 12.

Finally, the commission held that a “third party developer who

owns renewable generation equipment, which is installed on a utility

customer’s premises, and uses this equipment to serve multiple

customers for a portion of each customer’s electricity use and, payments

for which are based on a kilowatt-hour charge, is not a public utility

subject to regulation by the Commission.” Id. at 13.

3. States resolving the issue through legislative action. A number

of states have resolved the status of third-party PPAs by enacting

legislation explicitly addressing the issue. For example, in California,

Public Utilities Code section 218 specifically exempts from regulation

a corporation or person employing cogeneration technology
or producing power from other than a conventional power
source for the generation of electricity solely for . . . . [t]he
use of or sale to not more than two other corporations or
persons solely for use on the real property on which the
electricity is generated.

Cal. Pub. Util. Code § 218(b)(2) (West 2004). California has been a leader

in the development of third-party PPAs, including significant

government-owned projects, like the Moscone Center in San Francisco.

See Moscone Center, Sustainability, https://www.moscone.com/

community/sustain.html (2009) (last visited July 10, 2014) (“One of the

nation’s largest municipally-owned solar generation installations now

operates from the roof of the Moscone Center.”).

New Jersey has also legislated in this area. Under its public utility

statutes, a “basic generation service provider” is an electric generation
 34

service provided “to any customer that has not chosen an alternative

electric power supplier.” N.J. Stat. Ann. § 48:3-51 (West Supp. 2014).

“Electric generation service” is the “provision of retail electric energy and

capacity which is generated off-site from the location at which the

consumption of such electric energy and capacity is metered for retail

billing purposes.” Id. (emphasis added).

Similarly, Colorado Revised Statute section 40-1-103 provides that

[t]he supply of electricity . . . from solar generating
equipment located on the site of the consumer’s property,
which is owned or operated by an entity other than the
consumer, [is not a public utility provided that the supply
generated is] no more than one hundred twenty percent of
the average annual consumption of the electricity [from that
site].

Colo. Rev. Stat. § 40-1-103(2)(c) (2013).

In Iowa, there has been recent legislative activity related to the

issue. In 2013, H.F. 226 was introduced which explicitly stated that

third-party PPAs related to “alternate energy aggregation projects” would

not be considered “public utilities” and would not violate the exclusive

territory provisions of section 476.25. H.F. 226, § 1, 85th Gen. Assemb.,

Reg. Sess. (Iowa 2013). The legislation, however, was not enacted.
E. Overview of Legal Issues in This Case. There are three legal

issues presented in this case for our de novo review. As is often the case,

the issues are layered and interconnected.

The first legal issue is whether Eagle Point should be considered a

public utility under Iowa Code section 476.1. This Code section

provides:

As used in this chapter, “public utility” shall include
any person, partnership, business association, or
corporation, domestic or foreign, owning or operating any
facilities for:
 35
1. Furnishing gas by piped distribution system or
electricity to the public for compensation.

Id. § 476.1. If we conclude that the facts presented in the declaratory
proceeding establish that Eagle Point is a public utility, we must next

consider whether it escapes regulation as a result of an exception

provided in Iowa Code section 476.1. This exception removes from

chapter regulation certain types of electric utilities:

This chapter does not apply . . . to a person furnishing
electricity to five or fewer customers either by secondary line
or from an alternate energy production facility or small hydro
facility, from electricity that is produced primarily for the
person’s own use.

Id. § 476.1 (emphasis added). If Eagle Point is a “public utility” and does

not come within the scope of the exemption, its proposed arrangement

will run afoul of the exclusive territory provisions of section 476.25(3):

An electric utility shall not serve or offer to serve electric
customers in an exclusive service area assigned to another
electric utility, nor shall an electric utility construct facilities
to serve electric customers in an exclusive service area
assigned to another electric utility.

Id. § 476.25(3). The exclusive-territory provision is designed “to

encourage the development of coordinated statewide electric service at

retail, to eliminate or avoid unnecessary duplication of electric utility

facilities, and to promote economical, efficient, and adequate electric

service to the public.” Id. § 476.25.

If we determine that Eagle Point should not be considered a public

utility or qualifies for the applicable exemption, we must then next

consider whether Eagle Point is an electric utility under Iowa Code

section 476.22. This section provides:

As used in sections 476.23 to 476.26 (exclusive territory
provisions), unless the context otherwise requires, “electric
utility” includes a public utility furnishing electricity as
 36
defined in section 476.1 and a city utility as defined in
section 390.1.

Id. The argument is that electric utility could be broader than the term
public utility because the context of the exclusive territorial provisions

compels a broader gloss on the term than is generally applied. If Eagle

Point is an electric utility under Iowa Code section 476.22, its proposed

third-party PPA would run afoul of the exclusive territory provisions of

Iowa Code section 476.25.

IV. Is Eagle Point a Public Utility Under Iowa Code Section

476.1?

A. Positions of the Parties

1. The IUB.

a. Plain language analysis. The IUB maintains Eagle Point is a

public utility under the plain language of Iowa Code section 476.1. It

notes that Eagle Point, under its proposed agreement with the city, will

“operate, install, own, maintain, and finance” the solar facility. It further

notes that Eagle Point is compensated based upon the production of

electricity arising from the solar facility. According to the IUB, that

should be the end of the story under the terms of the statute: Eagle Point

is “furnishing” electricity “to the public for compensation.” See Iowa

Code § 476.1. It asserts that the district court erroneously focused on

the end results of energy efficiency rather than the nature of the

transaction itself, which plainly involves the sale of electricity.

b. Potential for expansion. The IUB takes the position that even

one transaction involving the sale of electricity makes Eagle Point a

public utility. In any event, the IUB notes that there is no limitation to

the potential activities of Eagle Point and that its marketing materials

indicate a desire to expand its business. The IUB stresses that
 37

commercial retailers as well as government entities may use the PPA

model to reduce energy costs and reduce their environmental footprint.

The IUB believes the green light in the district court order could lead to a

dramatic expansion of third-party PPAs that would be “clothed with the

public interest.” Further, the district court order could even allow back

door deregulation by allowing behind-the-meter fossil fuel generation.

c. Misapplication of Serv-Yu’s factors. The IUB maintains that the

district court erred in its application of the Serv-Yu factors. According to

the IUB, selling electricity on a per kWh basis is an understandable test

superior to the vague application of the Serv-Yu factors. The IUB

recognizes that in Northern Natural Gas I, this court cited the Serv-Yu

factors in determining whether sales of nature gas came within the scope

of the term “public utility.” See Northern Natural Gas I, 161 N.W.2d at

114–15. The IUB claims, however, that the utilities furnishing electricity

have exclusive territories while providers of natural gas do not. The IUB

thus seeks to sever Serv-Yu factors from consideration of what a public

utility is in the context of providing electricity under Iowa Code section

476.1.

In any event, the IUB argues that the Serv-Yu factors were

misapplied by the district court. For example, the IUB claims the district

court’s analysis ignored the fact that the activities of PPAs reduce the

demand for the product of regulated monopolies, thereby reducing the

utilities’ ability to recover the reasonable costs of providing service to the

public. As a result, they contend, the shortfall must be recovered from

other retail customers in the form of higher rates.

d. Exception demonstrates coverage. The IUB notes that the

exception to the definition of public utility in Iowa Code section 476.1

supports its position. It argues that the exception excludes from the
 38

definition of public utility a person furnishing electricity to five or fewer

customers if the power is produced “for the person’s own use.” See Iowa

Code § 476.1. The IUB asserts that this exception demonstrates that the

legislature considered the question of whether on-site generation should

be regulated, and deliberately crafted a narrow provision that does not

include on-site generation where the electricity is sold to the host.

Further, it is suggested that if on-site, behind-the-meter facilities were

excluded from the definition of public utilities, there would be no need for

the exception.

e. Public interest in exclusive territories. In addition to these

arguments, the IUB notes that the regulatory regime under chapter 476

would be compromised if Eagle Point were found not to be a public

utility. It argues that if Eagle Point were allowed to proceed with its

third-party PPA, it could “cherry pick” large commercial customers, thus

upsetting the settled expectations of Interstate Power, which has been

granted exclusive territory as part of the regulation of electric power by

the IUB. The IUB notes that the purpose of the granting of exclusive

territory is to establish the basis for the creation of a stable electric grid

and to ensure that all customers, large and small, receive reliable electric

power at an affordable price. Further, Interstate Power, as the exclusive

provider of electric power in the territory, which includes the city, has

made investment decisions based upon its status as a regulated

monopoly. In addition, allowing the third-party PPA arrangement would

lead to an unnecessary duplication of services, with both the exclusive

territorial provider and the PPA providing facilities for the generation of

electric power to the same customer.

In support of the argument that the Eagle Point project offends the

exclusive territory policy underlying Iowa Code section 476.25, the IUB
 39

and parties supporting it, point to PW Ventures, Inc., 533 So. 2d at 281.

In that case, PW Ventures proposed to construct, own, and operate a

“cogeneration project” 5 on land leased from Pratt and sell the resulting

electric power to the company. 533 So. 2d at 282. As in this case, PW

Ventures sought a declaratory ruling in advance that it would not be

subject to the regulatory jurisdiction of the Florida Public Service

Commission. Id. The relevant legislation defined public utility as any

entity “supplying” electricity to or for the public within the state. Id. at

282–83. The Florida Supreme Court found that even the sale of

electricity to one customer was sufficient to establish sale “to the public.”

Id. at 283. The Florida Supreme Court further upheld a determination

by the Florida Public Service Commission that PW Ventures would be a

public utility, noting among other things that the Commission’s

interpretation was consistent with a legislative scheme which

contemplated the granting of monopolies in the public interest. Id.

f. Impermissible consideration of independent promotion of

alternative energy. The IUB argues that the ruling of the district court in

this case was based not upon the language and structure of Iowa Code

chapter 476, but instead upon (1) a general desire to further renewable

energy options, and (2) a desire to allow the city to take advantage of

certain tax incentives that are not otherwise available.

The IUB recognizes that under Iowa Code section 476.41, the state

has embraced a policy of encouraging the development of alternate

energy. The IUB argues, however, Iowa Code section 476.41 is not a

general stand alone provision authorizing any and all kinds of alternate

energy projects. Instead, in order to advance the important policy goal

5“Cogeneration involves the use of steam power to produce electricity, with some
of the energy from the steam being recaptured for further use.” Id. at 282 n.3.
 40

embraced in Iowa Code section 476.41, the IUB maintains that the

legislature enacted Iowa Code sections 476.42 through 476.48. For

example, section 476.44 requires rate-regulated utilities to purchase 105

megawatts of electricity “from alternate energy production facilities or

small hydro facilities.” See Iowa Code § 476.44(2)(a). There is a

difference, the IUB claims, between alternate energy acquired pursuant

to section 476.44 and by the regulated public utilities. Public utilities

must coordinate their overall production strategy, and independent

alternate energy efforts, that may undermine the planning inherent in a

regulated monopoly setting. In short, energy conservation proposals

arising from alternate energy, according to the IUB, must generally be

integrated with the regulated monopoly in order to allow for the

coordinated, planned provision of electricity to customers.

2. Eagle Point.

a. Emphasis on practical evaluation of nature of “sales to the

public” requiring protection of customers rather than “furnishing

electricity”. Eagle Point suggests that the key element in determination of

whether an entity is operating as a public utility under Iowa Code section

476.1 is the nature of sales and not merely the fact that the entity might

be supplying a commodity subject to regulation. The focus, they argue,

citing United States Supreme Court precedent, is on “the nature of the

business, on the feature which touches the public, and on the abuses

reasonably to be feared.” Charles Wolff Packing Co. v. Court of Indust.

Relations, 262 U.S. 522, 539, 43 S. Ct. 630, 634, 67 L. Ed. 1103, 1110

(1923). Eagle Point notes that in Northern Natural Gas I, the court did

not simply determine that the sales of gas by piped distribution was

dispositive of the issue. Instead, the court emphasized that the “real

question” was the meaning of the statutory phrase “to the public.” 161
 41

N.W.2d at 115. The Northern Natural Gas I court stated that the test to

determine whether there were sufficient sales to compromise a public

utility was whether the sales were “clothed with [the] public interest.” Id.

In order to make that determination, there must be an examination of

“the nature of the actual operations conducted and its effect on the

public interest.” Northern Natural Gas II, 679 N.W.2d at 634. Eagle Point

notes that the court in Northern Natural Gas I cited the eight-factor test

in Serv-Yu to assist it in making its determination. See 161 N.W.2d at

115. It further cites administrative proceedings in Arizona, New Mexico,

and Hawaii for the proposition that such third-party financing does not

trigger regulation of the offering entity as a public utility.

Eagle Point notes that the IUB in this case focused on the “per

kWh” nature as the “key factor in determining that Eagle Point would be

a public utility under section 476.1.” But in Northern Natural Gas I,

there was no question that sales of gas were involved, but that was not

the end of the analysis. The teaching of Northern Natural Gas I and the

above authorities, according to Eagle Point, is that in order to determine

whether an entity is engaging in activities that draw it within the scope of

the statute, a broader examination is required. Eagle Point elaborates on

this theme by emphasizing that the key focus of utility regulation is to

protect customers from entities that sell indispensable products, not the

need to protect regulated utilities from competition from nonutilities.

b. Application of consumer-protection-oriented Serv-Yu factors.

Having established that a broader analysis is required, Eagle Point

argues that the district court correctly applied the Serv-Yu factors in

determining that Eagle Point was not a public utility. They march

through the Serv-Yu factors and assert that (1) the primary business of

Eagle Point is to install solar panels, not sell electricity (Serv-Yu factor 1);
 42

Eagle Point’s activities are “behind the meter” and therefore are not

“dedicated” to public use and involve no public infrastructure (Serv-Yu

factor 2); the record shows no evidence of intent to be a public utility

(Serv-Yu factor 3); the provision of solar panels and equipment is not an

“indispensible service” and does not involve captive customers, but

instead involves voluntary private choices in a competitive market (Serv-

Yu factor 4); there is no natural monopoly in the market for solar

facilities (Serv-Yu factor 5); the obvious fact that Eagle Point cannot serve

all customers because of environmental and rooftop conditions (Serv-Yu

factor 6); Eagle Point provides services through individually negotiated,

private contracts with variable terms and site specific services (Serv-Yu

factor 7); and Eagle Point’s capacity to provide electricity to the city is

limited and the city will remain connected to the grid (Serv-Yu factor 8).

Eagle Point asserts that the third-party PPA structure should be

regarded as a long-term financing arrangement rather than a transaction

involving the furnishing of electricity. In support of the argument, it cites

Iowa-Illinois Gas & Elec. v. Iowa State Commerce Comm’n, 334 N.W.2d

748 (Iowa 1983). In that case, we held that the statutory predecessor of

the IUB lacked the power to promulgate rules requiring a utility to

provide financing for energy conservation and renewal resource

measures as part of the utility service. Id. Eagle Point argues that it

would be absurd to hold that public utilities cannot be required to

provide financing for energy conservation and renewal resource

measures, and then say that Eagle Point is a public utility when it

provides such services.

c. Lack of merit in Serv-Yu factor Eight: Effect on regulated utilities.

In reaching its decision, the IUB relied extensively on the impact Eagle

Point’s business could have on the regulated utility, Interstate Power.
 43

Eagle Point notes that the IUB emphasized that the activities of Eagle

Point will lead to higher electric rates, backdoor reregulation, and

unnecessary duplication of services.

Eagle Point and its supporters assert that the evidence in the

record simply does not support these assertions. The dire predictions,

according to Eagle Point, have not manifested in the states that allow

PPA financing. Eagle Point asserts that there is no evidence in the record

to show that PPAs cause higher utility rates. On the contrary, Eagle

Point suggests that rooftop solar provides significant benefits to the grid

because it provides power during “peak” periods when the sun is shining

and air conditioning is running.

d. Experience in other states. Eagle Point argues that the

experience in other states allowing PPAs supports its position. It notes

the regulatory commissions in Arizona and New Mexico support its view

that approval of PPAs does not destabilize the regulated electric industry.

e. Promotion of energy efficiency. Eagle Point argues that Iowa

Code section 476.41 expresses a strong Iowa public policy in favor of

promoting energy conservation. It notes that the IUB itself in

administrative proceedings and in its brief in this case has recognized

that “reducing energy and capacity demands on [Iowa Power & Light’s]

system is the core of energy efficiency.”

B. Failure to Apply Northern Natural Gas and Serv-Yu

Factors. We now consider whether the IUB applied the correct legal

standard when it determined that Eagle Point’s proposed third-party PPA

with the city would bring it within the term public utility under Iowa

Code section 476.1.

We begin with observing that we believe the standard for

determining whether a gas or electric provider is a public utility under
 44

the statute must be the same. The definition of “public utility” in Iowa

Code section 476.1 from its inception in 1963 applied both to gas and

electric providers. See 1963 Iowa Acts ch. 286. We see no basis in the

statute for applying one test for gas suppliers and another for providers

of electricity.

It is true, of course, as the IUB points out, that electric utilities are

subject to the exclusive territorial provisions of Iowa Code sections

476.22–.26, while gas suppliers are not. We note, however, that the

definition of public utility was part of the original 1963 legislation while

the provisions relating to exclusive territories for electric providers was

added in 1977. Compare 1963 Iowa Acts ch. 286, with Iowa Code

§ 476.22–.26 (1977). At the time the exclusivity language was added to

the code, no change was made in the definitional provision of Iowa Code

section 476.1. Compare Iowa Code § 476.22–.26 (1977), with Iowa Code

§ 476.1 (1977). We do not believe the adding of additional language in

1977 related to exclusivity altered the meaning of the statutory

definitions which preexisted in the Code.

In Northern Natural Gas I, we emphasized that “to the public”

meant “sales to sufficient of the public” to “clothe the operation with a

public interest.” 161 N.W.2d at 115. In order to determine whether the

sales were clothed with the public interest, we utilized the eight-factor

Serv-Yu test. See id. at 114–15.

Past precedent of the IUB reveals that the IUB too has endorsed

the Northern Natural Gas I test. In Hawkeye Land Co. v. ITC Midwest,

the IUB cited Northern Natural Gas I as the “appropriate” test in a case

involving the construction of electric transmission lines. In re Hawkeye

Land Co. v. ITC Midwest LLC, Iowa Utils. Bd., Docket No. FCU-2009-

0006, at 38 (Sept. 30, 2011), available at https://efs.iowa.gov/cs/
 45

groups/external/documents/docket/mdaw/mte2/~edisp/079153.pdf.

This court subsequently applied the Northern Natural Gas I test when the

decision of the IUB was appealed. Hawkeye Land Co., 847 N.W.2d at

___.

A review of the IUB decision in this case reveals that the IUB did

not undertake the analysis required by Northern Natural Gas I and the

Serv-Yu factors, but instead sought to apply a different bright-line test,

namely, a test that whenever an entity sold electricity on a per kWh

basis, it would be, as a matter of law, a public utility.

We decline to introduce such an innovation into our established

law. The very purpose of Northern Natural Gas I was to escape a rigid

test that required a finding that an entity was involved in providing a

commodity in a fashion that gave rise to a duty to serve all members of

the public. Having abandoned the rigid test influenced by the common

law, we do not think the proper approach is to substitute another equally

rigid test at the other end of the spectrum. Indeed, under the IUB

approach, a behind-the-meter solar generating project built by an

engineering class at Iowa State University that furnished electricity on a

per kWh basis to a nearby farm would be considered a public utility

subject to a wide gamut of regulatory requirements. Even if the students

obtained a waiver of the territorial exclusivity of the local electric utility,

students would be required to stay after class to handle the paperwork

associated with filing tariffs with the IUB.

We reject the approach of the IUB in this case. Instead, based on

our straight line of cases from Northern Natural Gas I through Northern

Natural Gas II and Hawkeye Land Co., we conclude that the proper test

is to examine the facts of a particular transaction on a case-by-case

basis to determine whether the transaction cries out for public
 46

regulation. We believe the Serv-Yu factors provide a reasoned approach

when considering the question of whether the activity involved is

sufficiently clothed with the public interest to justify regulation.

C. Proper Application of Northern Natural Gas and Serv-Yu

Factors. Before examining the Serv-Yu factors individually, we note

generally two different types of considerations which could give rise to a

public interest in the transaction. On the one hand, there could be a

public interest in regulating the transaction between the developer–owner

in a third-party PPA and the consumer. This type of public interest

usually arises because the provider of the public utility, due to the

nature of the service and the barriers to entry, is often in a vastly

superior bargaining position compared to the consumer. See Chas. Wolff

Packing Co., 262 U.S. at 538, 43 S. Ct. at 634, 67 L. Ed. at 1110. On the

other hand, because the commodities involved may be essential to

commerce or everyday life, the continued provision of the service on a

reliable basis may trigger a public interest. See Iowa Code § 476.25.

We now move to consideration of the Serv-Yu factors. The first

factor requires a pragmatic assessment of what is actually happening in

the transaction. See Northern Natural Gas I, 161 N.W.2d at 115. The

transaction may be characterized as a sale of electricity or a method of

financing a solar rooftop operation. Neither characterization is

inaccurate. But most importantly, we have little doubt that the

transaction is an arms-length transaction between a willing buyer and a

willing seller. There is no reason to suspect any unusual potential for

abuse. From a consumer protection standpoint, there is no reason to

impose regulation on this type of individualized and negotiated

transaction.
 47

We also note that the IUB would not seek to regulate behind-the-

meter solar installations that are owned by the host or which operate

pursuant to a standard lease. 6 If this is true, the actual issue here is not

the supplying of electricity through behind-the-meter solar facilities, but

the method of financing. Yet, financing of renewable energy methods is

not something that public utilities are required to do. See Iowa-Illinois

Gas & Elec., 334 N.W.2d at 753–54. As pointed out by the Consumer

Advocate in this case, if providing financing for renewable energy is not

required of public utilities, the converse should also be true, namely, that

providing financing for solar activities should not draw an entity into the

fly trap of public regulation.

With respect to the second Serv-Yu factor, we agree with the

district court that it cannot be said that the solar panels on the city’s

rooftop are dedicated to public use. See Northern Natural Gas I, 161 P.2d

at 115. The installation is no more dedicated to public use than the

thermal windows or extra layers of insulation in the building itself. The

behind-the-meter solar generating facility represents a private

transaction between Eagle Point and the city. 7

On the fourth Serv-Yu factor, it seems clear that the provisions of
on-site solar energy are not an indispensable service that ordinarily cries

out for public regulation. See id. All of Eagle Point’s customers remain

connected to the public grid, so if for some reason the solar system fails,

no one goes without electric service. Although some may wish it so,

6Interestingly, the city and Eagle Point have converted their financial
relationship in connection with the behind-the-meter solar generating facility in this
case from a third-party PPA to a standard lease arrangement in order to remove the
shadow of the legal cloud raised by this case.
7Like the district court, we pass over the third Serv-Yu factor as inconclusive.
 48

behind-the-meter solar equipment is not an essential commodity

required by all members of the public. It is, instead, an option for those

who seek to lessen their utility bills or who desire to promote “green”

energy. You can take it or leave it, and, so far, it seems, many leave it.

The fifth Serv-Yu factor relating to monopoly clearly cuts against a

finding that Eagle Point is a public utility. See id. There is simply

nothing in the record to suggest that Eagle Point is a six hundred pound

economic gorilla that has cornered defenseless city leaders in Dubuque.

Indeed, the nature of the third-party PPA suggests the opposite, as the

city has entered into what amounts to be a low risk transaction—it owes

nothing unless the contraption on its rooftop actually produces valuable

electricity.

The sixth and seventh Serv-Yu factors relate to the ability to accept

all requests for service and, conversely, the ability to discriminate among

members of the public. See id. These twin factors cut in favor of finding

that Eagle Point is not a public utility. Eagle Point is not producing a

fungible commodity that everyone needs. It is not producing a substance

like water that everyone old or young will drink, or natural gas necessary

to run the farms throughout the county. More specifically, Eagle Point is

not providing electricity to a grid that all may plug into to power their

devices and associated “aps,” or, more prosaically, their ovens,

refrigerators, and lights.

Instead, Eagle Point is providing a customized service to individual

customers. Whether Eagle Point can even provide the service will depend

on a number of factors, including the size and structure of the rooftop,

the presence of shade or obstructions, and the electrical use profile of the

potential customer. Further, if Eagle Point decides not to engage in a

transaction with a customer, the customer is not left high and dry, but
 49

may seek another vendor while continuing to be served by a regulated

electric utility. These are not characteristics ordinarily associated with

activity “clothed with a public interest.”

The eighth Serv-Yu factor is perhaps the most interesting. Under

the eighth factor, the actual or potential competition with other

corporations whose business is clothed with the public interest is

considered. See id. Here, the IUB strenuously argues that allowing

third-party PPAs will have decidedly negative impacts on regulated

electric utilities charged with providing reliable electricity at a fair price

to the public. In support of its view, the IUB cites PW Ventures. The

fighting issue in this case is whether factor eight in the Serv-Yu litany

trumps the preceding factors and requires that Eagle Point be treated as

a public utility providing services to the public.

The position of the IUB has considerable appeal. Certainly, the

case can be made that if Eagle Point is allowed to “cream skim” the most

profitable customers, there may be impacts on the regulated utility. See

E. Shore Natural Gas Co. v. Del. Pub. Serv. Comm’n, 635 A.2d 1273, 1281

(Del. Sup. Ct. 1993) (recognizing that providing gas service to select

industrial customers affected public interest because of potentially

“destructive competition”); PW Ventures, 533 So. 2d at 283 (public

interest implicated where revenue that “otherwise would have gone to the

regulated utilities” is “diverted to unregulated producers”); In re S. Jersey

Gas Co., 544 A.2d 402, 406 (N.J. Sup. Ct. App. Div. 1988) (using a

cream-skimming analogy); Indus. Gas Co., 21 N.E.2d at 168 (finding

business that seeks to provide service to select industrial customers is a

public utility). If the third-party-PPA movement gets legs in Iowa, it is

conceivable that demand for electricity from traditional utilities will be

materially impacted in the long run. There is nothing in the record of
 50

this administrative proceeding, however, to gauge the likelihood or degree

of material impact, and there was no suggestion that the integrity of the

grid or economic health of regulated providers has been adversely

affected in states such as California, Nevada, Arizona, and Colorado,

where third-party PPAs are not considered public utilities for purposes of

regulation.

There are also mitigating factors. As pointed out by Eagle Point, it

does not seek to replace the traditional electric supplier but only to

reduce demand. Although an Eagle Point sale brochure promoting its

services is in the record, there is nothing to suggest that its services will

be attractive to, or even practical to, many customers of the traditional

electric supplier. Further, the parties to third-party PPAs have the ability

to convert their business arrangements into conventional leases which

are outside the scope of regulation. Indeed, in this case, Eagle Point and

the city have done just that to avoid unnecessary legal entanglements.

In addition to mitigating factors, there are also countervailing

positive impacts. Behind-the-meter solar facilities tend to generate

electricity during peak hours when the grid is under the greatest

pressure. Further, Iowa Code section 476.8 requires regulated electric

utilities to provide reasonably adequate service, and such service must

“include[] programs for customers to encourage the use of energy

efficiency and renewable energy sources.” Thus, third-party PPAs like

the one proposed by Eagle Point actually further one of the goals of

regulated electric companies, namely, the use of energy efficient and

renewable energy sources. See, e.g., SolarCity, Docket No. E-20690A-09-

0346, at 37, 39.

In the end, whether an activity is sufficient to draw an entity

within the scope of utilities regulation is a matter of assessing the
 51

strength of the Serv-Yu factors on a case-by-case basis. The weighing of

Serv-Yu factors is not a mathematical exercise but instead poses a

question of practical judgment. See Northern Natural Gas II, 679 N.W.2d

at 633. In our view, in this case, the balance of factors point away from

a finding that the third-party PPA for a behind-the-meter solar

generation facility is sufficiently “clothed with the public interest” to

trigger regulation.

V. Is Eagle Point an Electric Utility under Iowa Code Section

476.22.

A. Positions of the Parties.

1. The IUB. The IUB argues that under Renda, the legislature

intended to vest authority with the IUB to determine whether an entity is

an electric utility under Iowa Code section 476.22. The IUB notes that

this Code provision provides “unless the context provides otherwise,” an

electric utility “includes a public utility furnishing electricity as defined

in section 476.1.” Iowa Code § 476.22. The IUB notes that the statute

uses the term “includes,” therefore suggesting that there might be

situations where an entity which is not a public utility could be an

electric utility. Eyecare v. Dep’t of Human Servs., 770 N.W.2d 832, 837

(Iowa 2009) (“Generally ‘the verb “includes” imports a general class, some

of whose particular instances are those specified in the definition.’ ”

(quoting Helvering v. Morgan’s, Inc., 293 U.S. 121, 126 n.1, 55 S. Ct. 60,

62 n.1, 79 L. Ed. 232, 235 n.1 (1934))).

The IUB then reprises much of its argument regarding the

importance of exclusivity in the provision of electric power. The IUB

emphasizes the statutory goal of avoiding duplication of services, which

will occur if third-party PPAs are not considered electric utilities within

the scope of Iowa Code section 476.22. The IUB theorizes that if such
 52

behind-the-meter generation is allowed, the public utility will be left with

excess generation capability which represents a cost that must be passed

on to ratepayers. The IUB argues that because of the nature and goals of

the exclusivity provisions, Eagle Point should be considered an electric

utility under Iowa Code section 476.22, even if it is not a public utility

under section 476.1.

In any event, the IUB urges that the matter be remanded to the

Commission. It notes that in its earlier ruling, the IUB did not address

the issue. The IUB argues that because its interpretation of law is

entitled to deference under Renda, it is entitled to a first crack at the

issue, which should not be decided by an appellate court on appeal.

2. Eagle Point. Eagle Point counters that there is a basis for

concluding that the definition of electric utility in Iowa Code section

476.22 is broader than public utility. Indeed, Eagle Point argues that the

purpose of the phrase “unless the context otherwise requires” is a term of

limitation. Under Eagle Point’s view, a public utility furnishing electricity

under Iowa Code section 476.1 might not be an electric utility under

Iowa Code section 476.22, depending upon context. Eagle Point notes

that various city utilities which might be drawn into Iowa Code section

476.22 are plainly not electric utilities—such as waterworks, sanitary

sewage systems, etc. The phrase “unless the context requires otherwise,”

according to Eagle Point, allows an escape for city utilities that plainly

have nothing to do with the provision of electricity. Eagle Point’s cross-

appeal challenges the language of the district court order indicating it is

conceivable, under some circumstances, that the term “electric utility” is

broader than the term “public utility.”

Eagle Point also raises an issue of issue preservation. It notes that

no one before the IUB argued that the term “electric utility” was broader
 53

than “public utility.” It suggests that this court should not be swayed by

what amounts to “post hoc rationalizations” by counsel on appeal. See

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S. Ct.

239, 246, 9 L. Ed. 2d 207, 216 (1962). In any event, Eagle Point sees no

basis for an extraordinary interpretation of the term “electric utility”

under the facts and circumstances of this case.
B. Discussion of the Merits. Based upon the language of the
statute, we are inclined to believe that the phrase “unless the context
otherwise requires” is a term of limitation designed to ensure that city
utilities that do not furnish electricity are not inadvertently drawn into
the statute. It is true, however, that the term “includes” can generally
imply that there are other situations outside the literal language of the
descriptors in the statute that might be within its scope.
The problem for the IUB, however, is that it has not offered a clear
explanation as to why Eagle Point should be considered an electric utility
even if it is not a public utility. The IUB asserts that the exclusive
territory provisions require that the definition of electric utility should be
broader than public utility, but we do not agree. The argument
presented by IUB seems to be an effort to evade application of the Serv-
Yu factors. We decline to adopt such an interpretation. 8

8The IUB notes that it did not rule on this issue and urges a remand if we
determine that Eagle Point is not a public utility. We would consider a remand if we
determined that the legal determinations of the IUB were entitled to deference, but
because they are not, there is no obstacle to us deciding the legal issue raised on
appeal. See Renda, 784 N.W.2d at 11 (“Normally, the interpretation of a statute is a
pure question of law over which agencies are not delegated any special powers by the
General Assembly so, a court is free to, and usually does, substitute its judgment de
novo for that of the agency . . . .” (quoting Bonfield, at 62)); Meyer, 710 N.W.2d at 219
(“If the findings of fact are not challenged, but the claim of error lies with the agency’s
interpretation of the law, the question on review is whether the agency’s interpretation
was erroneous, and we may substitute our interpretation for the agency’s.”). Further,
“ ‘[w]here the [agency] has not reached certain issues because they were deemed
unnecessary to the decision under the rationale it elected to invoke, we may in the
interest of sound judicial administration decide the issues where they have been fully
 54

VI. Conclusion.
For all the above reasons, the decision of the district court is
affirmed.
AFFIRMED.
All justices concur except Mansfield and Waterman, JJ., who
dissent and Zager, J., who takes no part.

_________________________
briefed and argued.’ ” IBP, Inc. v. Burress, 779 N.W.2d 210, 218 (Iowa 2010) (quoting
Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa Civil Rights Comm’n, 394
N.W.2d 375, 378 (Iowa 1986)). The additional issue here was fully briefed before the
agency and the factual record is complete.
 55
#13–0642, SZ Enters., LLC v. IUB
MANSFIELD, Justice (dissenting).

I respectfully dissent and would uphold the determination of the

Iowa Utilities Board (the Board) that Eagle Point Solar (Eagle Point) is a

public utility. To my mind, the majority opinion is a good case study on

the limits of judicial competence and why the legislature wanted us to

defer, in large part, to the regulatory agency.

As I read the majority opinion, my colleagues appear to be

substituting their expertise on utility regulation for that of the Board.

Consider the following excerpts:

There are, however, significant barriers to the
installation of on-site solar energy facilities. The initial
capital costs remain quite high, often in the millions of
dollars or more. Some potential risk averse customers are
skeptical about the ability of solar facilities to provide regular
and predictable sources of energy. . . .
....
. . . There is no reason to suspect any unusual
potential for abuse. From a consumer protection standpoint,
there is no reason to impose regulation on this type of
individualized and negotiated transaction.
....
. . . [T]he provisions of on-site solar energy are not an
indispensable service that ordinarily cries out for public
regulation. All of Eagle Point’s customers remain connected
to the public grid, so if for some reason the solar system
fails, no one goes without electric service. Although some
may wish it so, behind the meter solar equipment is not an
essential commodity required by all members of the
public. . . .
....
In addition to mitigating factors, there are also
countervailing positive impacts, too. Behind the meter solar
facilities tend to generate electricity during peak hours when
the grid is under the greatest pressure.

(Citations omitted.)
 56

For each of these statements, the majority provides either no

supporting authority or citations to material that the majority

presumably found in its own independent research. 9 Is it the proper role

of courts to act as experts on the delivery of electrical energy? I would

argue it is not.

The basic issue in this case is whether Eagle Point becomes a

public utility under Iowa Code section 476.1 (2011) when it goes into the

business of installing on-site solar energy facilities on various entities’

properties and selling the resulting electricity to those entities. I can see

reasonable arguments on both sides.

The Board, after extensive proceedings, concluded that Eagle Point

would become a public utility. Among other things, the Board noted that

Eagle Point would be selling electricity on a per-kilowatt-hour basis to

multiple customers; that this electricity would displace electricity

normally provided by the public utility required to serve that territory;

and that such an arrangement would undermine the trade-off whereby

the local regulated utility has the obligation to serve every customer that

wants service but in return receives an exclusive territory. As the Board

points out on appeal, if Eagle Point is allowed to take electricity sales

away from Interstate Power and Light (Interstate Power), which has made

long-term investments based on projections of customer demand and

which is authorized by law to recover its costs plus a reasonable rate of

return, Interstate Power’s other ratepayers could be forced to make up

the difference.

9The majority opinion has many citations to nonlegal sources. These sources do

not come from the record or the parties’ briefs.
 57

These arguments could be wrong. My colleagues believe they are

wrong. But I do not believe we should be deciding them.

In Renda v. Iowa Civil Rights Commission, we undertook a

comprehensive review of the administrative law question that underlies

this appeal. See 784 N.W.2d 8, 10–15 (Iowa 2010). Thus, we discussed

at length when courts should and should not defer under Iowa Code

section 17A.19 to an agency’s interpretation of statutory terms. Id.

As we emphasized in Renda, “when the statutory provision being

interpreted is a substantive term within the special expertise of the

agency, we have concluded that the agency has been vested with the

authority to interpret the provisions.” Id. at 14. In fact, among the cases

we cited with approval in Renda after making this statement was City of

Coralville v. Iowa Utilities Board. Renda, 784 N.W.2d at 12, 14 (citing

City of Coralville v. Iowa Utils. Bd., 750 N.W.2d 523, 527 (Iowa 2008)). In

City of Coralville, we held that public utility “rates and services” as used

in Iowa Code section 476.1 was clearly vested in the Board’s interpretive

discretion. See City of Coralville, 750 N.W.2d at 527.

Applying this standard from Renda, I think it would be hard to

conceive of a substantive term more within the special expertise of the

Board than whether a company providing electric service is operating as

a “public utility.”

Renda also discussed another situation where agency deference

has historically been granted by courts. This is when an agency has

been given rulemaking authority and the term in question is one which

the agency “must necessarily interpret . . . in order to carry out its duties

. . . .” See Renda, 784 N.W.2d at 12 (citing, inter alia, City of Coralville,

750 N.W.2d at 527).
 58

Those circumstances exist here as well. The Board has rulemaking

authority, see Iowa Code section 476.2(1), and it must determine what a

public utility is in order to carry out its duties. Hence, we have an

additional Renda ground favoring deference to the agency.

Furthermore, in a number of instances in recent years, we have

deferred to Board interpretations of terms within the Board’s bailiwick.

See Evercom Sys., Inc. v. Iowa Utils. Bd., 805 N.W.2d 758, 762–63 (Iowa

2011) (stating that the Board’s interpretation of a provision in chapter

476 should only be reversed if it is “irrational, illogical, or wholly

unjustifiable”); Office of Consumer Advocate v. Iowa Utils. Bd., 744

N.W.2d 640, 643–44 (Iowa 2008) (same); AT&T Commc’ns of the Midwest,

Inc. v. Iowa Utils. Bd., 687 N.W.2d 554, 561 (Iowa 2004) (same).

Evercom, it should be noted, was decided after Renda, but we

nonetheless deferred to the Board’s interpretation of a “ ‘substantive term

within the special expertise of the agency.’ ” Evercom, 805 N.W.2d at

762–63 (quoting Renda, 784 N.W.2d at 14).

For all these reasons, I believe the Board has been vested with

authority to interpret the term “public utility” as applied to an alternative

supplier of electrical energy under section 476.1.

True, in NextEra Energy Resources LLC v. Iowa Utilities Board, this

court declined to defer to the Board’s interpretation of the term “electric

supply needs” as used in section 476.53(4)(c)(2). 815 N.W.2d 30, 38

(Iowa 2012). We indicated broadly that “the general assembly did not

delegate to the Board interpretive power with the binding force of law.”

Id. Relying on this language, Eagle Point argued here that “this Court

has recently held that the Board is generally not entitled to deference in

interpreting any of the provisions of Iowa Code chapter 476 because the
 59

legislature never intended to confer this power on the Board.” (Emphasis

added.) Likewise, the district court below ruled:

The [NextEra] court . . . concluded . . . that the “general
assembly did not delegate to the Board interpretive power
with the binding force of law” with regard to interpreting
chapter 476. Accordingly, here the Court will examine the
Board’s interpretation of the relevant sections of chapter 476
for correction of errors at law and will not give deference to
the Board’s interpretation.

(Citation omitted.)

But the majority here has helpfully clarified that there is no broad

no-deference rule for chapter 476 and that the Board will be given

deference in appropriate cases. According to the majority, “We focus on

the particular statutory provision at issue in a given case.” I agree with

this clarification of the NextEra decision. See NextEra, 815 N.W.2d at

50–52 (Mansfield, J., specially concurring).

So why does the majority decline to give deference to the Board in

this case? The majority offers two reasons why expertise is not needed

and why we should not defer to the Board’s interpretation of “public

utility,” neither of which I find persuasive. First, the majority asserts the

term is not complex or technical. Second, the majority asserts the term

has a legislative definition.

As to the first point, I think my colleagues have missed the boat, or

at least stepped aboard the wrong boat. The issue under Renda is not

whether the term itself is technical or complex, in the sense that you

would not encounter it in everyday speech or would need a college-level

vocabulary to understand it. In fact, you can read all of Renda and not

find the words “technical” or “complex.” See generally, 784 N.W.2d 8.

The issue under Renda is whether the term appears across a variety of
 60

legal contexts, such as “employee” did in Renda, or whether it appears to

have a “specialized” meaning. See id. at 13–14.

Public utility is such a specialized term. Significantly, when the

term is used elsewhere in the Code, chapter 476’s definition of “public

utility” is frequently incorporated by reference. See, e.g., Iowa Code

§§ 8D.13(17), 306.46(2), 352.6(2)(b), 368.1(12), 455H.304(2)(d),

499.30(5), 499.33(2), 714H.4(1)(e), 716.6B(1)(a); 2013 Iowa Acts ch. 66,

§ 4 (codified at Iowa Code Ann. § 89.14(10) (West, Westlaw through 2014

Reg. Sess.)); 2013 Iowa Acts ch. 140, § 77 (codified at Iowa Code Ann.

§ 716.7(1)(b) (West, Westlaw through 2014 Reg. Sess.)). “Public utility” is

not a legal concept that cuts across various fields of law; it is a concept

embedded in the law relating to the supply and regulation of energy,

communications, and water services. 10

10Attempting to demonstrate that “public utility” is a more general concept
extending into other fields of law, the majority cites three Iowa Code provisions that do
not expressly incorporate chapter 476’s definition. See Iowa Code §§ 412.5, 422.93,
480A.2. However, when you examine these three cited provisions, the majority’s effort
to separate “public utility” from the chapter 476 context proves unsuccessful.
By any plausible reading, Iowa Code section 422.93 implicitly incorporates
chapter 476’s definition of public utility. It explains that nothing in chapter 422 “shall
be construed to require the [Board] to allow or require the use of any particular method
of accounting by any public utility” for rate-regulation purposes. See id. § 422.93. This
is, in effect, a reference to the Board’s authority under chapter 476 and a savings
clause for that authority. It is not a potential source of a different definition.
Further, Iowa Code section 480A.2 largely replicates section 476.1’s preexisting
language. Compare Iowa Code § 476.1, with id. § 480A.2(4). This suggests that when
the legislature enacted chapter 480A in 1998, see 1998 Iowa Acts ch. 1148, §§ 3–8, it
did not intend to establish an independent definition.
Lastly, Iowa Code section 412.5 simply clarifies that chapter 412, which deals
with municipal utility retirement systems, is limited to public utilities “managed,
operated, and owned by a municipality.” See Iowa Code § 412.5. Rather than
demonstrating that public utility has other accepted meanings outside the chapter 476
context, section 412.5 indicates the legislature believed the normal chapter 476
definition needed to be qualified.
 61

Let’s look at the standard the majority applies for determining

whether Eagle Point is a public utility. The majority pulls eight factors

from Iowa State Commerce Commission v. Northern Natural Gas Co., 161

N.W.2d 111, 115 (Iowa 1968), a case we decided before the Iowa

Administrative Procedures Act was adopted, see 1974 Iowa Acts ch.

1090. After reviewing the factors and making the statements I quoted at

the beginning of this dissent, the majority renders what it calls a

“practical judgment.” The majority’s practical judgment is that Eagle

Point is not a public utility.

If we are talking about practical judgments, shouldn’t we defer to

the Board? Reading part IV(C) of the majority opinion merely reinforces

in my mind that we are trying to act as experts ourselves.

Furthermore, in Northern Natural Gas, we emphasized that the

eight factors in the test really boil down to one:

The real question is: What does the statutory phrase “to the
public” mean? We conclude it means sales to sufficient of
the public to clothe the operation with a public interest and
does not mean willingness to sell to each and every one of
the public without discrimination.

161 N.W.2d at 115. 11 Is the entity selling enough energy (gas or
electricity) to “clothe the operation with a public interest”? This seems to

11The majority says, “In order to determine whether the sales were clothed with
the public interest, we utilized the eight factor . . . test.” I disagree and would
encourage the reader to look at Northern Natural Gas, 161 N.W.2d at 115. We actually
recited the eight factors but then turned to the “clothed with a public interest”
standard. Id.
Notably, in the subsequent case of Northern Natural Gas Co. v. Iowa Utilities
Board, we relied primarily on the “clothed with a public interest” standard, not the
eight-factor test. See 679 N.W.2d 629, 633 (Iowa 2004). We said, “We have generally
interpreted [section 476.1] to mean that the Utilities Board has jurisdiction to regulate a
business entity that furnishes gas by piped distribution to the public in such a manner
that the public interest is affected.” Id. Although we mentioned the “variety of factors”
from the previous Northern Natural Gas case, we did not apply those factors but instead
followed a “practical approach” that jurisdiction of the commission should be extended
 62

me the paradigm of something that should be decided by the regulatory

agency that sees such matters every day and is in a better position to

assess “the public interest.”

Another assertion in the majority opinion with which I disagree is

the following:

We begin with observing that we believe the standard
for determining whether a gas or electric provider is a public
utility under the statute must be the same. The definition of
public utility in Iowa Code section 476.1 from its inception in
1963 applied both to gas and electric providers. We see no
basis in the statute for applying one test for gas suppliers
and another for providers of electricity.

(Citations omitted.) Why cannot the standard be different for gas and

electricity? Contrary to the majority’s claim that there is “no basis in the

statute” for treating gas and electricity differently, the Board noted in its

ruling two “significant” statutory differences. First, chapter 476 provides

for exclusive territories for electric utilities but not gas utilities, based on

a legislative determination that there should not be duplication of electric

facilities. See Iowa Code § 476.25. 12 Second, section 476.1 contains a
specific exclusion limited to certain providers of electricity. See id.

_________________________
“only as necessary to address the public interest implicated.” Id. On these grounds, we
upheld the Board’s assertion of its own jurisdiction. Id. at 634–35. Again, I question
the qualifications of courts to apply a “practical approach” to regulation of electricity.
We should leave this job to the experts at the Board.
12This section provides in part:
It is declared to be in the public interest to encourage the
development of co-ordinated statewide electric service at retail, to
eliminate or avoid unnecessary duplication of electric utility facilities,
and to promote economical, efficient, and adequate electric service to the
public. In order to effect that public interest, the board may establish
service areas within which specified electric utilities shall provide electric
service to customers on an exclusive basis.

Iowa Code § 476.25.
 63

§ 476.1. Both these differences favor the treatment of small-scale

competitive suppliers of electricity as public utilities.

As noted by the Board, the statutory definition of public utility

excludes “a person furnishing electricity to five or fewer customers either

by secondary line or from an alternate energy production facility or small

hydro facility, from electricity that is produced primarily for the person’s

own use.” Id. Eagle Point, it seems clear, intends to furnish electricity to

more than five customers (the City of Dubuque is just its first), with the

electricity not produced primarily for Eagle Point’s own use. Hence, Eagle

Point’s operations will be on a larger scale than anything covered by the

section 476.1 exclusion. That being the case, it is logical to regard Eagle

Point as a public utility. When the legislature spells out what it intended

to exclude, we often infer that it intended to include what remains. See

Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 649 (Iowa 2013) (noting the

legislature’s list of excluded persons under a workers’ compensation

definition did not include undocumented workers and concluding, under

the doctrine of expressio unius est exlusio alterius, “[i]f the legislature

intended the definition of a worker or employee to exclude

undocumented workers, it would have done so by adding undocumented

workers to the excluded list”).

This gets me to the majority’s second argument for not deferring to

the Board. The majority points out that there is already a statutory

definition of public utility in section 476.1. See Iowa Code § 476.1. And

when the legislature defines a term, we have often found this presents an

“insurmountable obstacle” to a determination that the agency has been

vested with interpretive authority over that same term. See Iowa Dental

Ass’n v. Iowa Ins. Div., 831 N.W.2d 138, 145 (Iowa 2013).
 64

But here the statutory definition is largely circular. “Public utility”

includes any entity owning or operating facilities for furnishing electricity

to the “public” for compensation. See Iowa Code § 476.1(1). It is not

disputed that Eagle Point owns facilities for furnishing electricity for

compensation. The question is whether its activities are on a large

enough scale to be considered serving the “public.” In resolving this

question, the section 476.1(1) definition offers little help.

Indeed, the majority implicitly concedes this point by relying not on

the statutory definition of public utility but rather on a “practical

approach” that features the majority’s sundry observations on economics

and energy. Contrary to the majority, I do not believe we can use the

existence of a statutory definition as a reason not to defer to an agency

interpretation unless we are prepared to apply that statutory definition.

Hawkeye Land Co. v. Iowa Utilities Board is a different case from

the present and illustrates my point. There the issue was whether a

transmission company that supplied electricity only to electrical utilities

was a “public utility” itself. See 847 N.W.2d 199, 201 (Iowa 2014). We

decided that under the “plain language” of the statute, a company that

provided power only to utilities was not serving the public. Id. at 215–16.

We also declined to defer to the Board’s interpretations of section 476.27

(the crossing statute) because (1) the legislature had provided relevant

definitions, (2) the statute operated in an area (eminent domain) that was

subject to constitutional requirements, and (3) the Board shared

decisionmaking authority under the statute with the Iowa Department of

Transportation. Id. at 208–09. None of those circumstances applies

here. There is no shared authority between the Board and anyone else,

the Board’s actions do not have constitutional implications, and we are

not relying on a legislative definition or deciding a plain language
 65

question. Rather, we are substituting our own practical judgment for the

Board’s.

Thus, I would not second-guess the Board’s determination that

Eagle Point’s sales of electricity are clothed with a public interest because

of their potential to take sales away unpredictably from Interstate Power,

which is required to make long-term investments so it can serve all

customers at all times and is entitled to recoup those costs plus a

reasonable rate of return from its customers. Instead, I would reverse

the district court and affirm the Board’s declaratory ruling in this matter.

Waterman, J., joins this dissent.