Environmental and Energy Law Update
        A blog from the attorneys of Verrill

        SolarCity’s Antitrust Case Survives Motion to Dismiss

        November 11, 2015

        When the Salt River Project utility in Arizona decided to impose new charges for its customers with rooftop solar installations in February, it opened another front in the solar war being waged across the country. Normally, these fights play out before state administrative agencies tasked with setting utilities’ rates and rules. Solar supporters argue that the fees discourage cost-beneficial investments into rooftop solar, while utilities argue that rooftop solar customers still rely on the grid and are not paying their fair share of the costs to support that grid.

        Unlike most utilities, however, Salt River’s rates are not set by the state authority charged with setting electric rates, which in Arizona is the Arizona Corporation Commission (ACC). Under Arizona law, Salt River is a political subdivision of the state that is allowed to set its own rates for retail electric service. As many rooftop solar supporters see it, Salt River has a natural monopoly over retail electric service, has no regulatory oversight, and is abusing its market power to crush its distributed solar competition.

        Within a week of Salt River’s decision, SolarCity, the largest installer of rooftop solar panels in the country, filed an anti-trust suit in federal court in Arizona. Salt River moved to dismiss all of SolarCity’s claims arguing that SolarCity (1) failed to define the relevant market, (2) failed to allege an adequate injury, and that (3) Salt River is immune from suit as a public entity. In a recent decision on Salt River’s motion, the court addressed each of these arguments.

        On the first issue, defining the market, the court found that the relevant product market is the provision of electricity to customers, which is served by both rooftop solar systems and public utilities. Salt River had argued that rooftop solar was not interchangeable with its retail electricity service because customers who generate their own power must still purchase electricity from Salt River. The court rejected this argument, concluding that even though rooftop solar customers still purchase power, the electricity they generate reduces their need to buy power from Salt River. The court emphasized that, unlike other means of generating electricity, only distributed solar and retail electric power were economically feasible and they were therefore the only competitors in the market.

        Next, the court moved on to SolarCity’s alleged injury. SolarCity alleges that Salt River’s fees are not designed to recoup the costs of the grid but to deter its customers from installing rooftop solar panels. Although Salt River argued that SolarCity is not its competitor because it does not provide retail electricity service in Arizona, the court quickly rejected this argument because of the direct interchangeability of the two companies’ products.

        On the final issue, immunity, the court got into the weeds of antitrust and immunity law. Salt River essentially argued that it was immune from suit as a public entity. The court did agree with Salt River that SolarCity could not recover damages because Salt River is a political subdivision of the state, but SolarCity is really after an injunction—it wants Salt River’s fees thrown out. Salt River also argued that ratemaking is a legislative or administrative function, but the court found that ratemaking was necessarily a legislative function only when the ACC sets a utility’s rates. Since Salt River’s rates are not set by the state commission, it was not entitled to immunity as a matter of law. The court dismissed some of SolarCity’s claims but the heart of the case is still alive.

        Solar advocates and utility executives will no doubt be watching this case closely because of Arizona’s importance to the rooftop solar industry. In Salt River’s service territory alone, there are more than 15,000 customers with rooftop solar panels installed or under contract.

        Environmental and Energy Law Update

        The Environmental and Energy Law Update blog provides an analysis and discussion of the most critical and timely legal issues and announcements in the environmental, natural resource, and energy sectors.

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Press Releases

        97 Verrill Attorneys Recognized by Best Lawyers® 2027, Including Four Named Lawyers of the Year

        AUGUSTA, Maine, BANGOR, Maine, BOSTON, Mass., PORTLAND, Maine, and WESTPORT, Conn., (August 20, 2026) – Verrill is proud to announce that 97...
        Alerts and Newsletters

        SEC’s Proposed “Reg Crypto”: What Founders Need to Know

        Startup founders and emerging-growth companies have a number of options for raising capital under the federal securities laws, including Regulation D...
        Blog

        After 45 Years, the IRS Speaks on DCAP Nondiscrimination Testing – And It’s Good News

        Employers that provide a Dependent Care Assistance Program will be pleased to learn that for the first time in 45 years, the IRS has issued guidance...
        Media Mentions

        Robert Keach Discusses Bankruptcy Auction Strategy in Law360

        Verrill attorney Robert Keach spoke with Law360 article examining the complex bankruptcy auction process that resulted in the sale of 23 summer...
        Media Mentions

        Martha Gaythwaite Featured in Portland Press Herald Coverage of Sig Sauer Trial Victory

        Verrill attorney Martha Gaythwaite was highlighted in media coverage of a federal trial in Bangor involving firearm manufacturer Sig Sauer. As...
        Media Mentions

        Law360 Quotes Robert Keach on Senate Bill Affecting Small Business Restructurings

        Verrill attorney Robert Keach was recently quoted in a Law360 article discussing federal legislation that would permanently restore the $7.5 million...
        Alerts and Newsletters

        SAFEs and Preferred Stock – Key Deal Terms Every Founder Should Know

        SAFEs Before negotiating a term sheet for preferred stock, many early-stage companies, particularly at the seed stage, first raise capital through...
        Press Releases

        Verrill Welcomes Business Restructuring and Insolvency Attorney Nimra Tariq

        BOSTON, Massachusetts – Verrill is pleased to announce that Nimra Tariq has joined the firm’s Business Restructuring and Insolvency Group as an...
        Media Mentions

        Robert Keach Provides Commentary on First Brands Restructuring in Law360

        Verrill attorney Robert Keach was quoted in the Law360 article, "First Brands' Ch. 11 Plan Revives Angst Over Admin Claims," discussing First Brands...
        Press Releases

        Verrill Welcomes Construction Attorney Cassie Dufon

        PORTLAND, Maine – Verrill is pleased to welcome Cassie Dufon to the firm’s Construction Group as an Associate, resident in the firm’s Portland...
        Press Releases

        Verrill’s Wide-Ranging Private Wealth Law Practice Recognized in 2026 Chambers and Partners High Net Worth Guide

        BANGOR and PORTLAND, Maine and BOSTON, Mass. – Verrill attorneys Kenneth P. Brier, Anya F. Endsley, Kurt E. Klebe, Mary McQuillen, Nathaniel S....
        Blog

        Update on Status of Maine Packaging EPR

        In December 2024, Verrill published a blog post, Unwrapping Maine's Gift to the Environment: A New Packaging Stewardship Program Set to Launch in...