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Commissioner Richard Glick Statement
April 29, 2019

Docket Nos. ER16-372-003, ER16-372-004, ER16-372-005 PDF

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Concurrence on PJM Interconnection, L.L.C.

I join today’s order in full. I write separately to highlight my support for the Commission’s conclusion that PJM Interconnection, L.L.C.’s (PJM) Independent Market Monitor can bring a complaint against PJM related to Fuel Cost Policy. As the Commission observed in Order No. 719, market monitors had long played a “vital role” by, among other things, observing and reporting on the organized markets and “ferreting out wrongdoing by market participants.”1 The Commission recognized that these responsibilities were critical to “[i]mproving the competitiveness of organized markets” and, by extension, ensuring that the rates those markets produce are just and reasonable and not unduly discriminatory or preferential.2 Those responsibilities—and the task of market monitoring more generally—have only become more important in the intervening decade, as organized markets have expanded in scope and complexity. Market monitors now play a more important role than ever in protecting consumers by preventing anticompetitive or manipulative conduct.

I believe that a market monitor’s ability to bring a complaint under section 206 of the Federal Power Act is an important element in its repertoire for “[i]mproving the competitiveness of organized markets.”3 By virtue of its position and expertise, a market monitor will often be uniquely well-positioned to identify market design flaws and assemble a corresponding record sufficient to meet a complainant’s burden under section 206.4 As a result, a complaint by a market monitor may often be the most expeditious and effective avenue for remedying a market design aspect that has become unjust and unreasonable or unduly discriminatory or preferential. In light of that critical role, there is no reason to clip a market monitor’s wings by carving market monitors out from the broad set of potential complainants identified in the Commission’s Rules of Practice and Procedure. 5

A market monitor’s ability to refer matters to Commission staff can provide a useful avenue for bringing concerns to the Commission’s attention, particularly where there is a potential for abuse in the interim period before the Commission decides whether to take corrective action. But confidential referrals are not a complete substitute for a transparent, on-the-record proceeding in which all interested entities have an opportunity to participate and address the merits of the market monitor’s arguments. Confining a market monitor’s role before the Commission to such referrals would not serve the public interest and would, instead, likely impair the competitiveness of organized markets.

For these reasons, I respectfully concur.

                                               

    1 Wholesale Competition in Regions with Organized Electric Markets, Order No. 719, 125 FERC ¶ 61,071, at P 314 (2008), order on reh’g, Order No. 719-A, 128 FERC ¶ 61,059 (2009), order on reh’g, Order No. 719-B, 129 FERC ¶ 61,252 (2009); see also Market Monitoring Units in Regional Transmission Organizations and Independent System Operators, 111 FERC ¶ 61,267, at P 1 (2005) (summarizing certain responsibilities of market monitors, including the responsibility to identify ineffective market rules and tariff provisions).
    2 Order No. 719, 125 FERC ¶ 61,071 at PP 1-2.
    3 Id.
    4 See, e.g., Emera Maine v. FERC, 854 F.3d 9, 21 (D.C. Cir. 2017) (“The burden of demonstrating that the existing ROE is unlawful is on . . . the complainant.”).
    5 See PJM Interconnection, L.L.C., 167 FERC ¶ 61,084, at P 60, n.108 (2019) (summarizing the Commission’s Rules of Practice and Procedure, which provide that any “person” can bring a section 206 complaint, with person having a capacious definition that includes, among other things, any “individual, partnership, corporation, [or] association”); 18 C.F.R. §§ 385.102(d), 385.206 (2018).
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