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Commissioner Richard Glick Statement
July 25, 2019

Docket No. EL16-49-000 PDF

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Concurrence Regarding PJM Interconnection, L.L.C.

The position in which the Commission finds itself today is the predictable consequence of the profound lack of reasoned decisionmaking in the June 2018 Order.1 As I explained in my dissent, it was readily apparent at the time that the Commission had neither a coherent, well-supported theory of why the PJM Interconnection, L.L.C. (PJM) tariff was unjust and unreasonable nor a clear, well-articulated vision for how to remedy the perceived deficiencies.2 One year later, Commissioner LaFleur’s description of the June 2018 Order as “regulatory hubris”3 seems more apt than ever after the Commission has shown an absence of leadership that has caused us to drift rudderless into the position in which we find ourselves today.

Even so, the Commission still has not demonstrated that it appreciates the extent of the uncertainty that was created by the June 2018 Order, which has only been compounded by the Commission’s continuing failure to implement a remedy on a timeline even remotely close to what it promised.4 PJM, its market participants, and the 65 million customers in the region deserve treatment far better than what they have received from the Commission over the past fifteen months. At a time when leadership and decisiveness are necessary, indecision and inaction are all they have received.

But we are where we are. Although I continue to believe that the existing tariff is just and reasonable,5 I agree with my colleagues that PJM should further postpone the 2019 Base Residual Auction. The short-term palliative effect of running the auction next month would be outweighed by the long-term uncertainty created by running an auction—and allocating capacity commitments—under tariff provisions that the Commission has found unjust and unreasonable. Doing so would raise serious questions about the legality of the auction and the resulting capacity commitments, further adding to the list of issues that will be litigated for years to come.

I hope that today’s order proves to be the nadir in this saga and we can soon begin repairing the damage created by the June 2018 Order. If ever the Pottery Barn Rule6 applied to a regulatory proceeding, it is this one. Commissioner McNamee misunderstands this point. It was the Commission—not PJM—that made the finding7 that has prevented PJM from running its capacity auction. And it has been the Commission—not any party to this proceeding—that has failed to act, even though we are now more than six months past the date promised in the June 2018 Order. Meanwhile, neither the facts nor the law have changed and the time for deliberation has long passed. The Commission is now fully responsible for the damage done to date and whatever comes next.

For these reasons, I respectfully concur.


    1 Calpine Corp. v. PJM Interconnection, L.L.C., 163 FERC ¶ 61,236 (2018), reh’g pending.
    2 Id. (Glick, Comm’r, dissenting at 2-13).
    3 Id. (LaFleur, Comm’r, dissenting at 5) (“The majority is proceeding to overhaul the PJM capacity market based on a thinly sketched concept, a troubling act of regulatory hubris that could ultimately hasten, rather than halt, the re-regulation of the PJM market.”).
    4 Id. P 172 (stating that the Commission plans to issue a subsequent order by January 4, 2019). 
    5 Id. (Glick, Comm’r, dissenting at 9-12).
    6 See Bob Woodward, Plan of Attack 150 (2004) (describing the “Pottery Barn Rule:  You break it, you own it”).
    7 Specifically, it was the Commission’s action under section 206 of the Federal Power Act, not PJM’s section 205 filing, that deemed PJM’s tariff unjust and unreasonable. 
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