As Yogi Berra once said, “it’s like déjà vu all over again.”[1] Once again, a transmission developer asks the Commission to put already hard-pressed consumers on the hook for a laundry list of “incentives.” And once again, the Commission approves almost all of the list. As I have said repeatedly over the past four years, it is long past time for this Commission to do its job of protecting consumers by cutting back on its unfair practice of handing out “FERC candy” without any serious consideration of the impact on consumers already struggling to pay monthly power bills.[2] The statute simply does not mandate such lavish generosity to developer interests at the expense of consumers. As discussed in great detail below, this list of incentives is especially difficult to stomach for consumers in Virginia, Maryland, and West Virginia given the egregious history of the Potomac-Appalachian Transmission Highline (PATH) project, about which I have written many times.[3]
Now to the specifics: I dissent specifically from the grant of Construction Work in Progress (CWIP), Abandoned Plant, and an RTO Participation Adder to Valley Link for its investment in the Valley Link Project Portfolio, which was approved through PJM’s Regional Transmission Expansion Plan (RTEP) Window 1 as a set of Baseline Upgrades. While I have dissented to numerous Commission incentive awards, what makes this order notable, in addition to the order’s openly reflexive award of incentives to the “Valley Link Project Portfolio,”[4] is the project’s location and ownership.
With regard to location of the project: the $3 billion portfolio is comprised of three components making up approximately 417 miles of new transmission facilities spanning three states—Maryland, Virginia, and West Virginia. If that route sounds familiar, that is because one of the proposed 765 kV transmission lines appears to be planned to trace a very similar footprint as the PATH project, which itself was proposed to span the same three states.[5] If PATH sounds familiar, that is because it is the transmission project for which PJM consumers paid approximately a quarter billion dollars without a single state ever approving a certificate of public convenience and necessity (CPCN) or a single ounce of steel ever being put in the ground.[6] Like the Valley Link project, PATH was also selected through PJM’s RTEP process.
With regard to ownership: as Maryland Office of People’s Counsel aptly put it, “Valley Link is no ordinary start-up company.”[7] Valley Link MD, Valley Link VA, and Valley Link WV are wholly owned subsidiaries of Valley Link Transmission, which is a newly formed joint venture holding company among Transource Energy, LLC (Transource); FirstEnergy Transmission, LLC (FirstEnergy); and Dominion Energy, Inc. (Dominion Energy).[8] Transource is itself a joint venture of American Electric Power Company, Inc. (AEP) and Evergy, Inc. And, if the ownership of Valley Link sounds familiar: “PATH was organized as a joint venture between [AEP] and Allegheny Energy, Inc. (Allegheny) in 2007. Allegheny merged with FirstEnergy Corp. . . . on February 25, 2011, and FirstEnergy [Corp] became the ultimate upstream owner of Allegheny’s interests in the PATH project at that time.”[9] So the family tree brought us PATH.
As I’ve already said, ‘“attention must be paid’” to the PATH project “because of the major lessons – and warnings – it holds for long-term regional transmission planning driven by policy goals, the substantial costs that go with such projects, and how FERC’s policies inflate those costs to consumers.”[10] I explained:
The PATH project was planned as a long-distance, high-voltage transmission line crossing three states that was approved for construction and regional cost allocation through selection for PJM’s regional transmission expansion plan (RTEP). PATH applied for certificates of public need in three states – West Virginia, Virginia, and Maryland – none of which ever issued a certificate. PJM later removed PATH from the RTEP, and it was never built.
Even though not a single ounce of steel was ever put in the ground, PATH’s developers have been collecting money from retail customers in the PJM states ever since it was approved for PJM’s RTEP. Since 2008, the total amount that consumers have been forced to pay to PATH’s developers has been approximately $250 million – that’s right, let me repeat: consumers have paid roughly $250 million for a project that was never built nor found needed by a single state regulator. Adding insult to consumers’ injury, that amount was caused and inflated by a whole host of Commission-approved transmission incentives.[11]
The present case graphically illustrates the fundamental unfairness of the Commission’s practices regarding incentives. First, it is noteworthy that in this case—just as in PATH—no necessary state approval to construct has been awarded to the project.[12] Instead, to justify granting the incentives, the order states—as so many before it have[13]—that “[t]he Commission has previously found that projects approved through a regional transmission planning process that evaluated whether the identified transmission projects will enhance reliability and/or reduce congestion are entitled to the rebuttable presumption established under Order No. 679.”[14] That justification is one of the major problems with this Commission’s incentives policies: no state CPCN proceeding has been conducted reviewing both need and prudence, yet the Commission grants the incentive anyway. Although the regional transmission planning process is only one rebuttable presumption established in Order No. 679 allowing qualification for incentive rate treatment, reliance on regional transmission planning in lieu of state approval to construct is a significant problem with FERC’s policy.[15] This practice is indefensible and always has been.
With all due respect to PJM’s transmission planning process—and I do respect it, along with planning processes in other RTOs/ISOs—the regional planning process in a transmission planning organization is not remotely the equivalent of a serious, litigated state CPCN (or its individual state equivalent) process, which includes witness cross-examination and is open to intervenors such as consumer advocates. As a former state regulator, I know firsthand how important it is to conduct credible state CPCN proceedings that evaluate the need and cost of a proposed project.
The role of state utility regulators and the critical importance of state CPCN proceedings seem to have been lost in the morass. In fact, as I recently noted, PJM and Transource Pennsylvania have taken the outrageous position in federal court that PJM’s RTEP process effectively pre-empts a state’s inherent police power authority to approve utility projects within its borders.[16] This Commission must make it clear once again—as it did in Order No. 1000[17]—that while FERC regulates RTOs and ISOs such as PJM, in no way does that regulatory oversight represent any intent to pre-empt the states’ decades-old authority to conduct CPCN proceedings that consider issues of need and prudence.
And let’s not forget that there is some relevant history to certain of the companies that own Valley Link even beyond their involvement in the PATH project, as I recently addressed.[18] In 2004, Virginia’s largest utility, Dominion Virginia Power, received approval from the Virginia State Corporation Commission (Virginia Commission or SCC) to join PJM.[19] The SCC order approving that application to join PJM incorporated a Partial Stipulation agreed to by, among other parties, PJM itself. That Partial Stipulation included the following provision:
Nothing in this Partial Stipulation or the SCC’s approval thereof shall be deemed to alter in any way the existing obligation of Dominion Virginia Power under the laws of the Commonwealth of Virginia to seek a certificate of public convenience and necessity prior to commencing to construct an electric generation facility or transmission facility.[20]
Earlier in 2004, Appalachian Power Company doing business as American Electric Power – Virginia (AEP-VA) also sought and received approval from the Virginia Commission to join PJM.[21] Like Dominion’s Virginia Commission order, AEP’s approval order incorporated a Stipulation that included the following provision:
Nothing in this Stipulation or the SCC’s approval thereof shall be deemed to alter in any way the existing obligation of Appalachian [AEP-VA] under the laws of the Commonwealth of Virginia to seek a certificate of public convenience and necessity prior to commencing to construct an electric generation facility or transmission facilities.[22]
To connect the dots—AEP is one of the owners of Transource. And, Dominion and Transource are owners of Valley Link.[23] And to keep that dot-connecting going: while Transource (AEP) might be arguing in the Third Circuit that a state’s police power obligation to approve or reject a project through its CPCN process is pre-empted by PJM’s RTEP, AEP promised the Commonwealth of Virginia over twenty years ago that it understood its existing obligation to go through the CPCN process before it could construct transmission facilities like the Valley Link project for which it now seeks incentives.
Putting aside the flawed notion that regional transmission planning is somehow equivalent to a state CPCN proceeding, another major problem is that FERC’s general practice in granting transmission incentives has become a “check-the-box” exercise. Order No. 679 contemplates a fact-specific, careful evaluation of balancing the needs of consumers and the benefits to investors based on the nature of the transmission projects at issue.[24] In contrast, every transmission developer seems to cite the same reasons for the same incentives—e.g., the CWIP Incentive mitigates the impact on the developer’s financial metrics, and the Abandoned Plant Incentive mitigates regulatory risks,[25] etc. Coincidentally, this is one of the reasons identified in Order No. 679 and parroted by developers in every proceeding.[26] And to date, FERC has not contested the now too familiar reasons to actually attempt to evaluate whether each (and every, it seems) transmission project truly faces the same risks as the last. Thus, whether the total package of incentives is “tailored to address the demonstrable risks and challenges faced by the applicant undertaking the project,” as required by Order No. 679-A,[27] is questionable at best.[28]
But even assuming today’s order could be construed as consistent with the Commission’s existing policies in Order No. 679, in my view those policies concerning the various incentives regularly awarded by this Commission produce rates that are unjust and unreasonable. A core principle of utility law and regulation for decades is that consumers can be forced to pay costs only for assets that are “used and useful” to them.[29] In Order No. 679, the Commission determined that it may be necessary to depart from this long-standing ratemaking principle to “address the substantial challenges and risks in constructing new transmission.”[30] In my prior statements, I questioned, among other concerns, whether the Commission’s determination of whether “substantial challenges and risks” exist when granting the CWIP and Abandoned Plant Incentives and other incentives has become nothing more than a “check-the-box” exercise.[31]
For example, I have stated that the Commission’s incentives policies—particularly the CWIP Incentive, which allows recovery of costs before a project has been put into service—run the risk of making consumers “the bank” for the transmission developer; but, unlike a real bank, which gets to charge interest for the money it loans, under our existing incentives policies the consumer not only effectively “loans” the money through the formula rates mechanism, but also pays the utility a profit, known as Return on Equity, or “ROE,” for the privilege of serving as the utility’s de facto lender.[32]
Further, just as the CWIP Incentive effectively makes consumers the bank for transmission developers, the Abandoned Plant Incentive effectively makes them the insurer of last resort as well. This incentive allows transmission developers to recover from consumers the costs of investments in projects that fail to materialize and thus do not benefit consumers. Just as consumers receive no interest for the money they effectively loan transmission developers through the CWIP Incentive, they receive no premiums for the insurance they provide through the Abandoned Plant Incentive if the project is never built. And if the CWIP Incentive is a de facto loan and the Abandoned Plant Incentive is de facto insurance—both provided by consumers—then the RTO participation adder, which increases the transmission owner’s ROE above the market cost of equity capital, is an involuntary gift from consumers.[33] There has been and continues to be something really wrong with this picture.
If the Commission determines it is appropriate to channel risks to consumers, those risks must be carefully weighed and considered.[34] It is long past time for the Commission to revisit its “check-the-box” practice—so readily apparent in this order—of granting transmission incentives. As I explain below, there is a workable compromise available to the Commission to balance consumer protection and developer interests.[35] Until the Commission develops a meaningful analysis that does not simply transfer risk to and extract wealth from consumers, I cannot in good conscience support the outcome here.
In early 2021, the Commission voted to approve a supplemental notice of proposed rulemaking which proposed, among other things, to limit the RTO Participation Adder to the three years following a transmitting utility’s initial membership in an RTO.[36] I joined in that vote and continue to support such a time limit. More than four years after that vote, no supplemental notice of proposed rulemaking has issued. And although the Commission initially proposed to eliminate the CWIP Incentive in the Transmission Planning and Cost Allocation NOPR,[37] the Commission then reversed course and declined to adopt that proposal in Order No. 1920. It instead chose to reject what should have been the easiest of decisions for the Commission if Order No. 1920 were truly about fulfilling its duty to protect consumers, which is its primary duty under the Federal Power Act (FPA).[38] This continuing failure to protect consumers by eliminating the CWIP Incentive was one of the pillars of my dissent to Order No. 1920.[39] Despite the appearance of action by the Commission to address unfair and excessive transmission costs to consumers from incentives and other Commission policies,[40] the record of the past four years shows that nothing has been accomplished to reform these incentives.
There is an obvious and workable compromise solution that would maintain sufficient incentives to satisfy the Energy Policy Act of 2005—the statutory justification for the Commission’s vast array of incentives offered up to developers over the past 20 years—yet restore some badly needed balance in terms of fairness to consumers. The Commission could revise the list of rebuttable presumptions in favor of the award of incentives in Order No. 679 to only one: where a state commission has granted a transmission project a CPCN (or equivalent) after evaluating the project for need and prudence.[41] The revised rebuttable presumption I propose would more closely align with the goal articulated by Congress in FPA section 219 in the first place: to incentivize “transmission of electric energy in interstate commerce by public utilities for the purpose of benefitting consumers by ensuring reliability and reducing the cost of delivered power by reducing transmission congestion.”[42]
This compromise would ensure that transmission incentives ultimately are awarded to projects that are worthwhile from the state-focused, consumer-oriented perspective and that the resulting rates are just and reasonable under the FPA. Importantly, from the point at which a state commission has evaluated a project for need and prudence and has approved that project, the project developer would fairly have a reliance interest (to borrow a term from equity courts) in seeing its project come to fruition with the state’s support. In that case, transmission incentives would be appropriate because the project would have been deemed needed and cost-effective in a serious state CPCN proceeding, and, should it ultimately not be built due to reasons beyond the control of the developer, recovery of the costs of the project to date along with incentives would presumptively be fair to the developer who proceeded with due diligence to build the project with the state’s imprimatur.
Without a review and finding of prudence through a CPCN proceeding, ratepayers are on the hook for the costs of transmission projects that ultimately may never get built because they were never found to be necessary or prudent as to cost to begin with. This is exactly what happened with the PATH project, which never received a state CPCN yet cost consumers a quarter billion dollars. Necessary transmission projects, especially large regional projects that face intense opposition, will ultimately not get built without the active support and cooperation of the states. Absent ex ante evaluation at the state level, FERC should not grant any incentives to a transmission project. Period.
Let me emphasize that in this statement I am not commenting on whether this project is or is not needed. PJM has said it is, and I respect PJM’s planning process. But that decision should be subject to review and ratification—or disagreement—by the utility commissions of the affected states, in this case, Virginia, West Virginia, and Maryland. I am instead talking here about “FERC candy”: incentives that are so routinely awarded to project developers by this Commission but for which consumers—who today face ever-increasing monthly energy bills—must pay. Costs associated with the Commission’s inaction on incentives have been mounting and will continue to be inflicted on consumers unless the Commission acts. It is time to act now.
Because I am not commenting on the need for the project, only the award of the incentives, I concur in setting the formula rate and formula rate protocols for hearing and settlement proceedings. I also concur in the rejection of Valley Link’s request for a 60/40 Hypothetical Capital Structure incentive and to set for hearing and settlement procedures the limited and discrete issue of determining a just and reasonable capital structure.[43]
For these reasons, I respectfully dissent in part and concur in part.
______________________________
Mark C. Christie
Chairma
[1] Like Alexis de Tocqueville, many quotes attributed to Yogi Berra were never actually said (at least not by him). This one he did, after Roger Maris and Mickey Mantle once again hit back-to-back home runs.
[2] E.g., Towns of Alexandria, Minn. v. FPC, 555 F.2d 1020, 1028 (D.C. Cir. 1977) (explaining that the Federal Power Act’s “‘primary aim is the protection of consumers from excessive rates and charges’”) (quoting Mun. Light Bds. v. FPC, 450 F.2d 1341, 1348 (D.C. Cir. 1971)).
[3] See, e.g., Potomac-Appalachian Transmission Highline, LLC, 185 FERC ¶ 61,198 (2023) (Christie, Comm’r, concurring) (PATH Concurrence), https://cms.ferc.gov/news-events/news/e-4-commissioner-christies-concurrence-letter-order-approving-path-settlement-er12.
[4] In the repeated and familiar check-the-box nature of today’s order, this order casually and without any offered analysis dismisses challenges by protestors against “our” Abandoned Plant incentive and CWIP policy simply as “beyond the scope of this proceeding.” Order at PP 127, 136 (emphasis added). In another example, today’s order is quick to grant the RTO Participation Adder with no relevant analyses—or recognition—of the protests and comments made against such award. See, e.g., infra at n.28.
[5] In fact, the northern 765 kV transmission line begins and ends in approximately the same location as PATH—from the John Amos substation in Putnam County, West Virginia to Frederick County, Maryland. Potomac-Appalachian Transmission Highline, LLC, Docket No. ER08-386, Exhibit No. PTH-100, Testimony of Michael Heyeck, at 5 (Dec. 28, 2007); Newman Protest at 4 (illustrating the similarities between the route of the PATH project Valley Link’s northern 765 kV transmission line).
[6] See PATH Concurrence at P 3.
[7] Maryland Office of People’s Counsel Protest at 18.
[8] And make no mistake, these established, incumbent transmission owners are not simply listed on the corporate “org chart”—they are running the day-to-day operations of Valley Link. As Maryland Office of People’s Counsel points out, Valley Link “will not have any employees”; rather, the employees of its affiliates will provide services to the companies. Maryland Office of People’s Counsel Protest at 19 (citing Exhibit No. CKD-001 at 12:14-15).
[9] PATH Concurrence at n.2 (citing PJM Interconnection, L.L.C., 141 FERC ¶ 61,177, at P 2 & n.2 (2012), reh’g denied, 153 FERC ¶ 61,308 (2015)). Transource Pennsylvania, LLC (which is 100% owned by Transource, which is in turn majority owned by AEP Transmission Holding Company. AEP Transmission Holding Company, LLC is a wholly owned subsidiary of American Electric Power Company, Inc., which is a publicly traded company) was also related to a docket on which I recently addressed PATH, incentives. PJM Interconnection, L.L.C., 191 FERC ¶ 61,056 (2025) (Christie, Chairman, concurring at n.10) (Transource Concurrence).
[10] PATH Concurrence at P 1 (emphasis in original) (quoting Arthur Miller, Death of a Salesman, Act 1 (1949)).
[11] Id. PP 2-3 (emphasis in original) (footnote omitted).
[12] See, e.g., Transmittal at 30-31 (“[T]he Project Portfolio will cross three state boundaries: Maryland, Virginia, and West Virginia, and therefore will require multiple certificates of public convenience and necessity (‘CPCN’ or ‘CCN’) from three different state regulatory commissions.”); id. at 31 (“Valley Link has not yet initiated the CPCN/CNN process.”).
[13] Remember this phrase: “check the box.”
[14] Order at P 87 (footnote omitted). See Promoting Transmission Investment through Pricing Reform, Order No. 679, 116 FERC ¶ 61,057, order on reh’g, Order No. 679-A, 117 FERC ¶61,345 (2006), order on reh’g, 119 FERC ¶ 61,062 (2007).
[15] Order No. 679 provides a few avenues for rebuttable presumptions. As noted and relevant, the first is project approval in a regional transmission planning process and the second is where a project has received state approval to construct. However, Order No. 679 suggests that regional transmission planning processes determine whether a given project is needed, whether it is the better solution, and whether it is the most cost-effective option in light of other alternatives (e.g., generation, transmission, and demand response). Order No. 679, 116 FERC ¶ 61,057 at P 58. Stated differently, Order No. 679 interprets the regional transmission planning process to be the equivalent of a state CPCN. And of course, almost all transmission incentives granted to date have been based on the regional transmission planning process rebuttable presumption, not any state approval to construct or, better yet, approval in a state CPCN proceeding.
[16] Transource Concurrence at n.4 (citing Brief of Appellee Transource Pennsylvania, LLC (Transource Third Circuit Brief) at 3-7 and passim, Steven DeFrank, et al., v. Transource Pennsylvania, LLC., No. 24-1045 (3d Cir. July 10, 2024); Brief for Amicus Curiae PJM Interconnection, L.L.C. Supporting Appellee [Transource] and Supporting Affirmance at 2-3 and passim, Steven DeFrank, et al., v. Transource Pennsylvania, LLC., No. 24-1045 (3d Cir. July 17, 2024)).
[17] See, e.g., Transmission Plan. & Cost Allocation by Transmission Owning and Operating Pub. Utils., Order No. 1000, 136 FERC ¶ 61,051, at PP 227, 253 n.231, 287 (2011), order on reh’g, Order No. 1000-A, 139 FERC ¶ 61,132, at P 342, order on reh’g & clarification, Order No. 1000-B, 141 FERC ¶ 61,044 (2012), aff’d sub nom. S.C. Pub. Serv. Auth. V. FERC, 762 F.3d 41 (D.C. Cir. 2014).
[18] Transource Concurrence at PP 5-10.
[19] Commonwealth of Va. ex rel. State Corp. Comm’n, Case No. PUE-2000-00551 (Nov. 10, 2004). I participated in the proceeding as a member of the Virginia Commission.
[20] Id. at Partial Stipulation No. 6 (emphases added).
[21] Commonwealth of Va. ex rel. State Corp. Comm’n, Case No. PUE-2000-00550 (Aug. 30, 2004). I also participated in this proceeding as a member of the Virginia Commission.
[22] Id. at Stipulation No. 7 (emphasis added). AEP’s explicit agreement to this Stipulation was signed by its counsel in the case. PJM also signed and explicitly agreed to this Stipulation. See signature sheets attached to Stipulation.
[23] See, e.g., Transource Third Circuit Brief at i (“Transource Pennsylvania, LLC is owned 100% by Transource Energy, LLC. Transource Energy, LLC is owned 86.5% by AEP Transmission Holding Company, LLC . . . . AEP Transmission Holding Company, LLC is a wholly owned subsidiary of American Electric Power Company, Inc., which is a publicly traded company.”); see RPC Power, LLC, 188 FERC ¶ 61,123, at P 17 n.19 (2024); Transource Pa., LLC, 184 FERC ¶ 61,091, at P 9 (2023).
[24] See Order No. 679, 116 FERC ¶ 61,057 at PP 21-29.
[25] See, e.g., Transmittal at 33-38.
[26] See, e.g., Order No. 679, 116 FERC ¶ 61,057 at PP 117, 165 (providing that the CWIP Incentive may be appropriate to preserve a utility’s credit rating and that regulatory risk signals the need for the Abandoned Plant Incentive).
[27] See Order No. 679-A, 117 FERC ¶ 61,345 at PP 6, 21, 27, 40.
[28] In its efforts to shower incentives on Valley Link, today’s order grants Valley Link’s request for an RTO Participation Adder for any “Valley Link subsidiaries in the PJM region,” failing to address OPSI’s concern that it “continues to question the extent to which it is just and reasonable to grant these three entities a specific RTO Participation adder, considering their owners’ extended membership in PJM, regardless of whether the parent companies have created a distinct entity to separately own the specific assets at issue in this docket.” OPSI Comments at 5; see, e.g., Maryland Office of People’s Counsel Protest at 19-21, Newman Protest at 17-18, Ghiorzi Protest at 8. The order also blithely grants incentives to any Valley Link subsidiary in PJM—even to unformed and to date unplanned subsidiaries with unknown corporate structures, working on unknown projects, facing unknown risks, and providing unknown benefits (if any, because that is also unknown) that are wholly unrelated to the infrastructure investments that the Commission supposedly evaluated in the instant proceeding. See Order at PP 167-169. If it’s not clear, I’ll note that I affirmatively dissent to both of these examples of FERC largess too.
[29] Kentucky Utilities Co. v. FERC, 760 F.2d 1321, 1324 (D.C. Cir. 1985) (“For nearly a century the ‘used and useful’ principle, enunciated by the Supreme Court in Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819 (1889), has stood as a bedrock principle of utility rate regulation.”).
[30] See Order No. 679, 116 FERC ¶ 61,057 at PP 26, 117.
[31] See, e.g., Bldg. for the Future Through Elec. Reg’l Transmission Plan. & Cost Allocation & Generator Interconnection, Order No. 1920, 187 FERC ¶ 61,068 (Christie, Comm’r, dissenting at P 118) (Order No. 1920 Dissent), order on reh’g, Order No. 1920‑A, 189 FERC ¶ 61,126 (2024), https://www.ferc.gov/news-events/news/e-1-commissioner-christie-dissent-transmission-planning-and-cost-allocation-rule; Baltimore Gas & Elec. Co., 187 FERC ¶ 61,030 (2024) (Christie, Comm’r, dissenting at P 6), https://www.ferc.gov/news-events/news/commissioner-christies-dissent-award-incentives-exelon-er24-1313; PJM Interconnection, L.L.C., 185 FERC ¶ 61,200 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/e-7-commissioner-christies-concurrence-exelons-application-abandoned-plant; The Potomac Edison Co., 185 FERC ¶ 61,083 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-concerning-potomac-edisons-abandoned-plant; Montana-Dakota Utils. Co., 185 FERC ¶ 61,015 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-montana-dakota-utilities-co-regarding; Midcontinent Indep. Sys. Operator, Inc., 184 FERC ¶ 61,136 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-midcontinent-independent-system-operator-inc-0; GridLiance W. LLC, 184 FERC ¶ 61,129 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-gridliance-west-regarding-transmission; Midcontinent Indep. Sys. Operator, Inc., 184 FERC ¶ 61,034 (2023) (Christie, Comm’r, dissenting at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-dissent-award-transmission-incentives-nipsco-er23-1904; Otter Tail Power Co., 183 FERC ¶ 61,121 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/e-18-commissioner-christies-concurrence-otter-tail-power-company-regarding; LS Power Grid Cal., LLC, 182 FERC ¶ 61,201 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-ls-power-grid-regarding-transmission-incentives; Nev. Power Co., 182 FERC ¶ 61,186 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-nv-energy-regarding-transmission-incentives; The Dayton Power and Light Co., 182 FERC ¶ 61,147 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-dayton-power-and-light-company-regarding; Midcontinent Indep. Sys. Operator, Inc., 182 FERC ¶ 61,039 (2023) (Christie, Comm’r, concurring at P 2), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-midcontinent-independent-system-operator-inc; NextEra Energy Transmission Sw., LLC, 180 FERC ¶ 61,032 (2022) (Christie, Comm’r, concurring at P 2) (July 2022 Concurrence), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-nextera-energy-transmission-southwest-llc; NextEra Energy Transmission Sw., LLC, 178 FERC ¶ 61,082 (2022) (Christie, Comm’r, concurring at P 2) (February 2022 Concurrence), https://www.ferc.gov/news-events/news/commissioner-mark-c-christie-concurrence-nextera-energy-transmission-southwest-llc. See also DCR Transmission, L.L.C., 184 FERC ¶ 61,199 (2023) (Christie, Comm’r, concurring at P 6), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-dcr-transmission-regarding-transmission-cost.
[32] Order No. 1920 Dissent at P 118 (citing, inter alia, February 2022 Concurrence at P 3 (emphasis in original); July 2022 Concurrence at P 3 (citation omitted)); see also Bldg. for the Future Through Elec. Reg’l Transmission Plan. & Cost Allocation & Generator Interconnection, Notice of Proposed Rulemaking, 179 FERC ¶ 61,028 (2022) (Transmission Planning and Cost Allocation NOPR) (Christie, Comm’r, concurring at P 15) (“CWIP is, of course, passed through as a cost to consumers, making consumers effectively an involuntary lender to the developer . . . . Consumers should be protected from paying CWIP costs during this potentially long period before a project actually enters service, if it ever does.”), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-e-1-regional-transmission-planning-and-cost. With respect to the RTO Participation Adder, I note that OPSI continues to object to the award of RTO Participation Adders: “OPSI continues to oppose the RTO participation adder and notes that Section 219 of the Federal Power Act does not require administrative adders to transmission rates if the resulting rates are not just and reasonable. Section 219 does not require the stacking of incentives in the form of administrative adders to cost of service rates for transmission investment that would occur without such adders.” OPSI Comments at 5; see also supra n.28.
[33] See, e.g., Rockland Elec. Co., 178 FERC ¶ 61,232 (2022) (Christie, Comm’r, concurring at P 4), https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-rockland-electric-er22-910.
[34] With regard to the incentives awarded here, OPSI shares these concerns and asks this Commission not only to conduct a deeper examination of the benefits of the projects but to “only approve these incentives if there is a clear showing that the costs of the incentive (or the likely costs of the abandoned plant incentive) are likely to be less than the benefit to consumers by granting these incentives.” OPSI Comments at 6; id. at 3 (“. . . OPSI encourages the Commission to examine the benefits these projects may produce more deeply rather than simply checking to see if the projects were the product of a regional reliability or economic planning process.”).
[35] See infra PP 17-19.
[36] Elec. Transmission Incentives Policy Under Section 219 of the Fed. Power Act, Supplemental Notice of Proposed Rulemaking, 175 FERC ¶ 61,035, at P 9 (2021).
[37] 179 FERC ¶ 61,028 at P 333 & n.530. This proposal was “a major step forward in consumer protection and . . . a big reason I am voting for [the Transmission Planning and Cost Allocation NOPR].” Id. (Christie, Comm’r, concurring at P 15).
[38] Order No. 1920, 187 FERC ¶ 61,068 at P 1547. Of course, Order No. 1920 was not about fulfilling the Commission’s duty to protect consumers. Order No. 1920 rationalized this decision to walk back the removal of the CWIP Incentive by finding that any action on the CWIP Incentive is more appropriately considered in a separate proceeding where incentives can be comprehensively evaluated for all regional transmission facilities. However, as I have stated in my dissent to Order No. 1920, I regard that as nothing more than an excuse for a continuing failure to act. Order No. 1920 Dissent at P 119.
[39] Order No. 1920 Dissent at P 119 (“[I]nstead of adopting the proposal to remove the CWIP Incentive, [Order No. 1920] chose to side with developers and special interest groups, rather than with consumers.”); id. P 120 (“[Order No. 1920] . . . is astoundingly silent on the consumer impact of retaining the CWIP Incentive.”); id. P 121 (“Unfortunately, this is simply a continuation of the Commission punting on any meaningful reevaluation of transmission incentives. . . . By walking back the removal of the CWIP Incentive, [Order No. 1920] reveals . . . its failure to protect consumers as required by the FPA.”); see also, e.g., id. PP 18-19.
[40] See, e.g., Notice of Technical Conference, Transmission Planning and Cost Management, Docket No. AD22-8-000 (Apr. 21, 2022); [Fifth] Supplemental Notice of Technical Conference, Transmission Planning and Cost Management, Docket No. AD22-8-000 (Oct. 8, 2022); Notice Inviting Post Technical Conference Comments, Transmission Planning and Cost Management, Docket No. AD22-8-000 (Dec. 23, 2022).
[41] This new rebuttable presumption would be superior to the existing rebuttable presumption regarding state action that looks only at whether there exists state approval to construct. A state approval to construct does not necessarily include a serious review and a finding of need and prudence as in a state CPCN proceeding.
[42] 16 U.S.C. § 824s(a) (emphases added).
[43] When the matter again reaches the Commission for decision following hearing and/or settlement procedures, I will review the record and judge the matter on that record and at that time.