Chairman James Danly Statement
November 20, 2020
Docket No. ER20-2969-000
I concur with the Commission’s order issued in this docket except for the Commission’s approval of CenterPoint Energy Houston Electric, LLC’s (CenterPoint) request to make its revised rate effective on September 17, 2020, one week before the date that CenterPoint filed the rate on September 23, 2020. In my view, the Commission should have set September 23 as the effective date.
I recognize that the exact nature of our jurisdiction to review CenterPoint’s rates is not crystal clear, given that CenterPoint is not a public utility under the Federal Power Act (FPA). Rather, CenterPoint is filing its rate pursuant to a settlement approved by the Commission in 1981 in connection with a request for the Commission to order the interconnection of facilities and the provision of transmission services pursuant to FPA sections 202, 210, 211, and 212.[1] However, the Commission’s order in 1981 noted that rate filings “will be determined from time to time in accordance with the procedures of sections 205 and 206 of the [FPA].”[2] Further, CenterPoint’s transmittal letter stated that it was making its filing “[p]ursuant to Section 205 of the Federal Power Act . . . [and] Part 35 of the regulations of the Federal Energy Regulatory Commission . . . under the FPA.”[3] Because CenterPoint is filing its revised rate for the Commission’s review and approval pursuant to FPA section 205, it must follow that the filed rate doctrine applies to CenterPoint’s filing. And as I explained in detail in my dissent in Sunflower, allowing CenterPoint’s rate to go into effect before it is filed exceeds our legal authority under two legal doctrines: the filed rate doctrine and the rule against retroactive ratemaking.[4]
For these reasons, I respectfully concur in part and dissent in part.