# D002 Antithesis — Ironwood Cannot Be in the GAJA Rider Without a Commission Designation Finding ## Counterclaim Ironwood — the 446 MW Lake Catherine Unit 5 combustion turbine — must be excluded from the 2026 GAJA Rider, cutting the revenue requirement by approximately $33.9 million (from $110.4M to $76.5M), because the Generating Arkansas Jobs Act requires a specific Commission finding that a resource is a Strategic Investment, and the Commission has never made that finding for Ironwood. The thesis's contrary reading does not just misread the statute; it disregards what the Commission has actually done in the only two other proceedings where it has designated Strategic Investments — both of which contain explicit, on-the-record designation findings the thesis cannot explain away. Statement A is a procedural shortcut dressed up as statutory construction, and it would let Entergy Arkansas pocket $33.9 million a year of ratepayer money on a self-administered formality that no Commissioner has ever voted on. The remedy is denial. ## Attack on the thesis **The thesis's `## Claim` and `## Argument` ¶1 commit the central error: they conflate the statutory *definition* with the statutory *designation*.** The thesis says "the statute does the designation work" and treats § 23-4-1303(10)(B)(i)'s "includes without limitation" language as a "per se inclusion clause" that takes any 100-MW-plus plant out of the Commission's hands. This is wrong on the face of the statute. § 23-4-1303(10)(A) — which the thesis is conspicuously quiet about — defines Strategic Investments as investments "**approved by the Arkansas Public Service Commission** under § 23-3-201 et seq., the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq., or a notice under § 23-18-104 ... **to** [enumerated public-interest purposes]" ([[Palmer Rebuttal on Ironwood]], p. 4, quoting § 23-4-1303(10)(A)). The "(B)(i)" 100-MW clause the thesis treats as dispositive is a sub-clause of a definition whose chapeau requires Commission approval *for the enumerated public-interest purposes*. Meeting a capacity threshold is necessary; it is not sufficient. The thesis read the threshold and skipped the chapeau. **The thesis's `## Argument` ¶2 misreads § 23-4-1304(w) by inventing an exemption that isn't there.** Palmer's testimony — the thesis's only source for the (w) argument — says one sentence: "a resource filed prior to Act 373 is eligible for recovery in the GAJA Rider pursuant to Ark. Code Ann. § 23-4-1304(w)" ([[Palmer Rebuttal on Ironwood]], p. 5). The thesis builds an entire constitutional-canon argument on this sentence — that (w) would have "no operative effect" unless it dispenses with the designation requirement. That is not what Palmer actually quotes (w) as saying. (w) makes pre-Act resources *eligible* — that is, it lets them seek recovery despite their pre-Act vintage. It does not say they may skip the designation step the statute imposes on every Strategic Investment. "Eligibility" is a permission, not a conferral. The thesis's "absurdity" argument inverts the canon: the truly absurd reading is that the General Assembly built a multi-purpose, multi-criterion designation framework in (A) and (B) and then quietly excused every pre-Act resource from it in (w) without saying so. Statutes that excuse anyone from anything say so expressly. (w) does not. **The thesis's `## Argument` ¶3 reading of § 23-4-1304(f)(1) collapses the moment the comparison cases are introduced.** The thesis says (f)(1) — "at the election of the investor-owned electric utility ... strategic investments shall be recovered through the rider" — makes utility election "the operative regulatory act." But (f)(1) presupposes its subject: it tells you how *strategic investments* are recovered. It does not tell you what makes something a strategic investment. Read the thesis's way, (f)(1) would let a utility unilaterally elect any investment into the rider by relabeling it. That is not the statute the General Assembly enacted, and it is not the statute the Commission has implemented. We know that because in [[Cypress Order No. 4 CECPN Approval|Cypress Order No. 4]] the Commission devoted an *entire dedicated section* of its order to "**Strategic Investment Findings under § 23-4-1303(10)(A)-(C)**" — a section title pulled directly from the order's table of contents ([[Cypress Order No. 4 CECPN Approval]]). And in [[Jefferson Order No. 5 SREA Limited Intervention|Jefferson Order No. 5]] the full Commission found that "**this Docket is the first proceeding before the Commission where EAL is explicitly seeking to establish a generation facility (and associated transmission infrastructure) as a strategic investment eligible for rider recovery pursuant to Act 373**" ([[Jefferson Order No. 5 SREA Limited Intervention]]). The Commission's own words — "**seeking to establish**" — concede that *establishment* of a generation facility as a Strategic Investment is a discrete act the utility *seeks* and the Commission *grants*. If (f)(1) made utility election the operative act, none of that would have been necessary. The Commission would have just noted the utility's election and moved on. It didn't. **The thesis's `## Argument` ¶4 — the UFEEPA "major utility facility" analogy — is a category error.** Palmer's analogy says a utility doesn't need a separate pre-CECPN order certifying its plant is a "major utility facility." Fine — but that is because a CECPN is itself the Commission's adjudication of major-utility-facility status. The CECPN proceeding ends in a Commission order. The Strategic Investment finding is the same kind of adjudicative endpoint — except that in Ironwood's case, the CECPN proceeding (24-072-U) **ended without one**, precisely because the Strategic Investment framework did not yet exist. The analogy doesn't help Statement A; it indicts it. If the UFEEPA finding is what closes the loop on "major utility facility," then the Strategic Investment finding is what closes the loop on Strategic Investment. The thesis's analogy concedes the existence of a finding requirement and then forgets that the relevant finding was never made. **The thesis's `## Argument` ¶5 "prior recognition" argument from 25-049-TF Order No. 4 is the thesis's weakest move.** Per Palmer, Order No. 4 directed EAL to "**provide bill impacts** of the inclusion of Ironwood in the GAJA Rider" ([[Palmer Rebuttal on Ironwood]], p. 7). A Commission directive to calculate bill impacts is a *procedural data request*, not a substantive designation finding. Regulators routinely demand impact analyses for hypothetical and contingent scenarios — that is how Commissions build records. To convert a request for bill-impact data into an implicit Strategic Investment designation would mean that the Commission accidentally designated a $33.9-million-per-year cost recovery by asking for a calculation. No serious construction of regulatory practice supports that. And the thesis's [[T002 - Ironwood Strategic Investment Designation Requirement|own tension page caveats]] flag that the 25-049-TF Order No. 4 was *not retrieved* in the corpus — the thesis is asking the synthesis to credit Palmer's representation of an order the dialectic has never seen. **The thesis's `## Argument` ¶6 "structural anomaly" complaint cuts the wrong direction.** The thesis treats it as embarrassing that under Statement B "every pre-Act-373 resource" would need a designation finding. That is not embarrassing — it is the obvious consequence of a statute that creates a new category of regulated investment with explicit public-interest purposes. The thesis is asking the Commission to grandfather an entire vintage of resources by judicial fiat to avoid procedural inconvenience. That is policymaking, not adjudication. And in any event, Staff has explicitly offered the procedural fix: Herring testifies Staff "would not object if the Commission designates Ironwood as a Strategic Investment in this proceeding" ([[Palmer Rebuttal on Ironwood]], p. 3, summarizing Herring; [[APSC Staff Testimony on the GAJA Rider]], p. 9). The remedy Statement B seeks is not exclusion forever — it is exclusion until the Commission does what the statute requires. ## Independent argument for the counterclaim **The statutory architecture: Strategic Investment is a category the Commission designates, not a label the utility self-applies.** § 23-4-1303(10)(A) defines Strategic Investments as investments "approved by the Arkansas Public Service Commission" — the verb is "approved by the Commission," not "elected by the utility." The four enumerated public-interest purposes — supporting growth and economic development; maintaining reliable service; supporting nuclear license extensions; ensuring adequate dispatchable resources ([[Strategic Investment]]) — are findings the Commission must make as to a particular resource. The General Assembly did not write a self-executing definitional clause; it wrote a Commission-administered eligibility framework. The thesis's "the statute does the designation work" framing is incompatible with the statute's own assignment of the work to the Commission. And the thesis's (B)(i) "per se inclusion" reading would render the (A) chapeau's enumerated purposes surplusage — a result that violates the *anti*-surplusage canon the thesis claims to be defending. **The comparison cases are devastating, and the thesis fails to engage them.** [[Cypress Order No. 4 CECPN Approval|Cypress Order No. 4]] devotes a discrete section of its findings — "**Strategic Investment Findings under § 23-4-1303(10)(A)-(C)**" — to designating Cypress under sub-paragraph (C). Herring's testimony recites that for both Jefferson and Cypress "the Commission found each 'a strategic investment' and authorized Entergy 'to allocate 100 percent of the costs of acquiring and operating' each 'to EAL's retail customers as a strategic investment pursuant to Ark. Code Ann. § 23-4-1303(10)'" ([[APSC Staff Testimony on the GAJA Rider]], p. 5). That is the operative act — the Commission's affirmative finding paired with an express authorization to allocate 100% of costs to retail customers. The Commission performed that act for Jefferson; it performed that act for Cypress; **it did not perform that act for Ironwood**. The thesis cannot explain why, if the statute self-designates plants by capacity, the full Commission bothered to issue express designation findings in the other two dockets. The straightforward inference — the one Herring draws and Statement B vindicates — is that those findings are what the statute requires, and Ironwood is missing one. **The pre-Act-373 timing problem cuts against Statement A, not for it.** The thesis treats Ironwood's pre-Act CECPN filing date as a get-out-of-jail-free card under § 23-4-1304(w). But the thesis has the timing backwards. The reason the Strategic Investment question was never adjudicated in [[Ironwood REDACTED Application|24-072-U]] is that the framework did not exist when the CECPN was applied for or when Order No. 9 was issued; the Commission had no occasion and no statutory hook to make the finding then. Palmer himself concedes this: the Application was filed "well in advance of Act 373's consideration or passage" ([[Palmer Rebuttal on Ironwood]], p. 5). So the question is not whether the Commission already made the finding — everyone agrees it didn't. The question is whether the statute now waives the finding for resources filed before the statute's enactment. § 23-4-1304(w) says no such thing. It says pre-Act resources are *eligible* — and Herring concedes that eligibility ([[APSC Staff Testimony on the GAJA Rider]], pp. 6-7). Eligibility is the precondition for designation; it is not designation itself. The thesis collapses two separate statutory concepts to manufacture a result the General Assembly did not write. **The Commission's own pre-hearing framing in this very docket undercuts the thesis.** [[Order No. 5 Pre-Hearing Issues|Order No. 5]] in 26-008-TF — issued by the full Commission, not under ALJ delegation — directed the parties to address two specific pre-hearing issues at the 4/29 hearing: rate impact comparisons (Jan vs. June 2026) and cost-of-debt reconciliation with the Formula Rate Plan in 16-036-FR ([[Order No. 5 Pre-Hearing Issues]]). The Commission did not direct the parties to address whether utility self-election under (f)(1) is sufficient or whether (w) waives the designation requirement. The Commission's silence is telling: if the thesis's statutory construction were obvious, the Commission would have framed the issue as a routine procedural matter, not as the dispute it has remained through six orders without resolution. And [[Order No. 6 Legislative Council Report|Order No. 6]] — the most recent order in the docket — pointedly refuses to rule on the Ironwood question, framing its directives "assuming Commission approval" rather than asserting it ([[Order No. 6 Legislative Council Report]]). A Commission that believed (f)(1) and (w) self-executed would have approved the rider by now. It hasn't. **The policy stakes vindicate procedural rigor.** $33.9 million a year is real money. It will appear as $1.80 per month on every residential customer's bill — a 31% reduction in the per-customer GAJA Rider charge if Ironwood is excluded ([[APSC Staff Testimony on the GAJA Rider]], p. 14). The thesis treats the designation finding as procedural make-work. Staff treats it — correctly — as the statutory check that ensures the Commission, not the utility, decides whether a particular plant qualifies for a customer-borne return on Construction Work in Progress. The four public-interest purposes in § 23-4-1303(10)(A) are not boilerplate; they are the substantive criteria the General Assembly wanted the Commission to assess plant by plant. Letting utility election under (f)(1) substitute for that assessment would convert a regulatory check into a utility self-certification, and would do so in the one ratemaking context — return on CWIP — where regulators historically have been most cautious. Statement B is what statutory rigor looks like; Statement A is what utility convenience looks like. ## Evidence 1. **§ 23-4-1303(10)(A) requires Commission approval for enumerated public-interest purposes (the chapeau the thesis omits).** "'Strategic Investments' means investments, either construction or purchase, and associated operating expenses made by a electric public utility or natural gas public utility, and **approved by the Arkansas Public Service Commission** under § 23-3-201 et seq., the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq., or a notice under § 23-18-104 or as otherwise stated in subdivision (10)(B) of this section, to [four enumerated public-interest purposes including economic development, reliability, nuclear license extensions, and dispatchable resource adequacy]." Source: [[Palmer Rebuttal on Ironwood]], p. 4 (Palmer quoting § 23-4-1303(10)(A)); [[Strategic Investment]] (concept page reproducing the full text). 2. **EAL's own framing: "as designated by the Commission" is part of the rider's purpose.** "The purpose of the GAJA Rider is to recover from retail customers EAL's costs associated with strategic investments **as defined under Arkansas law and as designated by the Commission** ('Strategic Investment')." Source: [[GAJA Rider 2026 Annual Update]], p. 6. EAL admits designation is the Commission's act; the thesis cannot rewrite EAL's own admission. 3. **Herring's central charge: the Commission has not made the finding for Ironwood.** "Despite the Company's acknowledgement that the purpose of the GAJA Rider is to recover from retail customers EAL's costs associated with strategic investments as defined under Arkansas law and as designated by the Commission, **the Commission has not made a finding that Ironwood is a strategic investment nor that EAL has the authority to allocate 100 percent of the costs of Ironwood to retail customers as a strategic investment**." Source: [[APSC Staff Testimony on the GAJA Rider]], p. 6. 4. **The Commission made express findings for Jefferson and Cypress — but not for Ironwood.** "For Jefferson Power Station and Arkansas Cypress, the Commission **found each 'a strategic investment'** and authorized Entergy 'to allocate 100 percent of the costs of acquiring and operating' each 'to EAL's retail customers as a strategic investment pursuant to Ark. Code Ann. § 23-4-1303(10)'." Source: [[APSC Staff Testimony on the GAJA Rider]], p. 5. 5. **Cypress Order No. 4's table of contents has a dedicated section: "Strategic Investment Findings under § 23-4-1303(10)(A)-(C)."** Source: [[Cypress Order No. 4 CECPN Approval]] (Table of Contents, Section 5). The Commission would not need a separate Strategic Investment Findings section if the statute self-designated 100-MW-plus plants. 6. **The Commission's own framing in Jefferson Order No. 5: utilities "seek to establish" Strategic Investment status.** "This Docket is the **first proceeding before the Commission where EAL is explicitly seeking to establish a generation facility (and associated transmission infrastructure) as a strategic investment eligible for rider recovery pursuant to Act 373**." Source: [[Jefferson Order No. 5 SREA Limited Intervention]] (signed by full Commission, 2025-08-27). The verb "seeking to establish" — the Commission's, not Staff's — concedes that Strategic Investment status is an adjudicative endpoint, not a self-executing label. 7. **Order No. 9 in 24-072-U made no Strategic Investment finding.** "Order No. 9 granting the CECPN for Ironwood **did not address whether Ironwood should be designated as a strategic investment**." Source: [[APSC Staff Testimony on the GAJA Rider]], pp. 6-7. Palmer does not deny this; he only argues findings *implicit* in the CECPN record substitute for an explicit designation. They don't. 8. **The pre-Act timing is the *reason* no finding was made, not a *waiver* of the requirement.** "Entergy filed Ironwood's CECPN application on 2024-11-01, **before the Generating Arkansas Jobs Act was engrossed (2025-03-11)**." Source: [[APSC Staff Testimony on the GAJA Rider]], pp. 6-7. Palmer concedes the same date ([[Palmer Rebuttal on Ironwood]], p. 5). 9. **Staff's remedy is procedurally available: deny now, with the door open to designation.** Staff "recommends that the Commission deny 2026 recovery for Ironwood" — but "**would not object**" if the Commission affirmatively designates Ironwood in this docket or another. Source: [[APSC Staff Testimony on the GAJA Rider]], p. 9; [[Palmer Rebuttal on Ironwood]], p. 3 (summarizing Herring). 10. **The Commission did not surface the designation question in its own pre-hearing issues — but neither has it approved the rider.** [[Order No. 5 Pre-Hearing Issues]] (Doc. 69, 2026-04-21) directs parties to address two issues — rate-impact comparisons and cost-of-debt reconciliation — but does not list the Ironwood designation question. [[Order No. 6 Legislative Council Report]] (Doc. 75, 2026-05-12) is the most recent order and is procedural; its framing — "**assuming Commission approval** of the most recent Annual Update filing" — concedes that substantive approval has not been granted. Source: [[Order No. 5 Pre-Hearing Issues]]; [[Order No. 6 Legislative Council Report]]. 11. **The financial stakes: $33.9 million / year and a 31% reduction in the per-customer rider charge.** Excluding Ironwood "reduces the revenue requirement by approximately $33.9 million" (from $110.4M to $76.1M, combined with the conceded rate-of-return correction). Excluding Ironwood "Staff calculates the residential bill impact at $3.97" versus Entergy's proposed $5.77. Source: [[APSC Staff Testimony on the GAJA Rider]], pp. 8, 14; [[Entergy Rebuttal Testimony on the GAJA Rider]], p. 3 (Entergy concedes the $463,000 rate-of-return correction).