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Commissioner Richard Glick Statement
February 5, 2020

Docket No. ER20-458-000 PDF


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Dissent in Part Regarding Enerwise Global Technologies, Inc

I dissent in part from today’s order because I would grant CPower’s1 Alternate Waiver Request.2 CPower’s resources elected to participate in ISO New England Inc.’s Forward Capacity Auction (FCA) using the Renewable Technology Resource (RTR) exemption from ISO New England’s buyer-side market power mitigation provisions rather than submitting a so-called composite offer that would allow CPower’s resources to potentially pair their capacity with complimentary resources.3 That’s a mouthful, but it boils down to this: CPower chose one of two seemingly viable paths for participating in the FCA. It subsequently became clear, however, that the RTR exemption would not be a viable path for CPower’s resources to participate in the FCA.4 As a result, without a waiver, the FCA will categorically ignore the capacity that those resources provide.5

To address that problem, CPower filed this two-part waiver request. In the “Primary Waiver Request,” CPower seeks a waiver that would permit its resources to participate in the FCA through the RTR exemption.6 In the more limited “Alternate Waiver Request,” CPower effectively seeks a waiver of certain deadlines so that it can change course and pursue the composite offer path rather than the RTR exemption path.7 ISO New England protested the Primary Waiver Request, but does not oppose the Alternate Waiver Request.8 CPower argues that both requests satisfy the Commission’s waiver criteria, which require the party seeking waiver to show that: (1) it acted in good faith; (2) the waiver is of limited scope; (3) the waiver addresses a concrete problem; and (4) the waiver does not have undesirable consequences, such as harming third parties.9

I believe that the Alternate Waiver Request satisfies those four criteria and is in the public interest.10 First, CPower appears to have acted in good faith by attempting to qualify under the RTR exemption and then promptly seeking waiver when it realized that a quirk in the tariff provisions governing the RTR exemption would exclude these resources from participating in the FCA. Second, the Alternate Waiver Request is limited in scope because it provides for a one-time exception to certain tariff deadlines, it applies only to these few CPower resources, it applies only in this FCA, and it does not create a new means of participating in the FCA or guarantee that CPower’s resources will clear in the FCA. Third, the Alternate Waiver Request would address a concrete problem, namely the inability of CPower’s resources to participate in the FCA due to the overall limit on the amount of capacity that can participate through the RTR exemption and the associated tariff provisions, which, as noted, treat CPower’s resources as providing zero megawatts of capacity.11 Finally, there is no evidence in the record of potential harm to third parties or other undesirable consequences from the Alternate Waiver Request, which is unprotested.12 In addition, I believe that the Alternate Waiver Request is in the public interest because it will provide a path through which CPower’s resources can participate in the FCA and potentially contribute to ISO New England’s goal of ensuring resource adequacy at just and reasonable rates.

The Commission asserts that the Alternate Waiver Request is not limited in scope principally because it would apply only to CPower’s resources and not to other resources that elected the RTR exemption.13 But that is the very nature of waiver requests. Because they seek relief from generally applicable tariff provisions, waiver requests almost by definition produce different treatment for the applicable resources. Unless the Commission is prepared to categorically reject all waiver requests, the potential for differential treatment is not a reasoned basis for denying the Alternate Waiver Request. Moreover, the fact that the Alternate Waiver Request applies only to CPower’s resources would seem to support CPower’s request, not to undermine it. If the request applied to all resources that elected the RTR exemption then it might very well not be limited in scope.

For these reasons, I respectfully dissent in part.






                                               

    1 CPower is owned by Enerwise Global Technologies, Inc.  See Enerwise Global Techs., Inc., 170 FERC ¶ 61,084, at P 1 (2020) (Order).
    2 I dissent only in part because I agree that the Primary Waiver Request is not limited in scope, substantially for the reasons stated in ISO New England’s Protest.  See ISO New England Protest at 5. 
    3 Order, 170 FERC ¶ 61,084 at P 2. .
    4 Id. P 3.
    5 Id. PP 3-4.
    6 Id. P 5.
    7 Id. P 6.
    8 ISO New England Protest at 2. 
    9 See Order, 170 FERC ¶ 61,084 at P 19.
    10 ISO New England Protest at 2.  As noted, supra note 2, I agree that the Primary Waiver Request is not limited in scope.
    11 Order, 170 FERC ¶ 61,084 at P 3; CPower Waiver Request at 16-17.
    12 As noted, ISO New England protested the Primary Waiver Request, but stated that it does not object to the Alternate Waiver Request and, in fact, agreed that the Alternative Waiver Request satisfies the Commission’s four waiver criteria.  See ISO New England Protest at 2. 
    13 Order, 170 FERC ¶ 61,084 at P 21.
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