AP Energy presses solar challenge, Declue questions costs as Eastern welcomes approval

AP Energy LLC is not backing down from its legal challenge to the Commonwealth Utilities Corp.'s solar power award to Eastern Power Solutions, as renewable energy executive Anthony Declue questions the project's costs and Eastern welcomes its approval by the Commonwealth Public Utilities Commission.

In an Oct. 29 filing with the CNMI Superior Court, AP Energy attorney Joseph E. Horey argued that CUC violated his client's constitutional right to equal protection by disqualifying AP Energy for failing to submit audited financial statements while allowing Eastern to remain eligible despite allegedly failing to meet the same requirement.

Horey said neither company submitted audited financial statements in its own name. Eastern relied on financial statements from Primary Holdings, while AP Energy submitted statements from Hong Ye, a member of its consortium.

AP Energy argued that CUC had no reasonable basis for accepting Eastern's financial documents while rejecting those submitted by AP Energy's consortium.

The filing was in response to CUC's opposition to AP Energy's request to amend its petition for judicial review and its renewed motion for a temporary restraining order.

Horey also rejected CUC's argument that AP Energy failed to exhaust its administrative remedies, saying the constitutional issue should be decided by the court rather than returned to CUC. He said the company's other procurement complaints had already gone through the administrative process.

On CUC's claim that the motion was untimely, Horey said the issue involving audited financial statements only became public at the Oct. 23 CPUC hearing. AP Energy filed its motion the following Monday, Oct. 26.

"It is difficult to act more timely and promptly than that," Horey wrote.

Horey also argued that AP Energy would suffer irreparable harm if the contract proceeded without the company being given a fair opportunity to compete. He cited federal case law recognizing lost business opportunities and potential profits as grounds for such claims.

AP Energy is asking the court to allow its amended petition and issue a temporary restraining order.

Horey also challenged Eastern's Oct. 31 deadline for finalizing the agreement, saying it was imposed by the company rather than being a government requirement.

According to a declaration by CUC executive director Kevin Watson cited in the filing, Eastern warned that further delays could jeopardize financing and its ability to complete the project by Dec. 31, 2027, to qualify for federal solar tax credits representing 30% of its financing.

Horey argued that even if Eastern withdrew, CUC would still have other bidders to consider. He said the utility should not allow a private company's preferred deadline to dictate the procurement process.

CUC has opposed the renewed restraining order request. The court previously denied AP Energy's request for a stay and temporary restraining order in March.

Meanwhile, Declue, of Freedom Renewable Energy Group, criticized CUC for not seriously considering alternative technologies that he said could eliminate fuel surcharges, lower electricity rates, and provide reliable baseload power.

In messages to Marianas Press on Oct. 29, Declue said he had sought an opportunity to present his proposal to CUC leadership but was frustrated by the lack of interest.

He questioned the approximately 18.5-cent-per-kilowatt-hour price associated with the Eastern agreement, saying it does not represent what consumers would ultimately pay.

"And the 18.5 cents everyone keeps celebrating? That's wholesale only. Nobody has told you what your household will actually pay," he said.

Declue also questioned the lifespan and disposal of battery energy storage systems, saying batteries require replacement after thousands of charging cycles.

"I think the leadership just sold their rate payers down the river. People will keep leaving their home because it no longer is affordable," he said.

Eastern Power Solutions CEO Daniel Myung, meanwhile, welcomed CPUC's approval and thanked CUC and the community for their participation in the process.

"We are grateful to the CPUC for its thoughtful review and approval, and to CUC and the community for the constructive discussions that brought us to this milestone," Myung said.

"We understand how much affordable, reliable electricity matters to families and businesses across Marianas. EPS is honored by this trust and committed to working with our partners to deliver a cleaner, more resilient energy future for the Commonwealth."

Myung's statement did not directly address AP Energy's lawsuit or Declue's criticism.

Sun Moon Ahn, meanwhile, said he was still waiting for his company's official announcement following CPUC's approval of the Eastern agreement.

CUC has maintained that neither the utility nor the CNMI government would shoulder upfront construction costs, with CUC paying only for electricity purchased from Eastern.

Declue, however, said ratepayers deserve a clearer accounting of the project's eventual costs and whether other technologies could deliver greater long-term savings.