Chairman James Danly Dissent Regarding NYC ENERGY LLC

Commissioner James Danly Statement
November 30, 2020
Docket No. ER20-629-001

The Commission’s order issued in this docket today grants NYC ENERGY LLC’s (NYCE) request for a retroactive waiver.  I recognize that NYCE has explained why its waiver request was submitted in good faith and has presented sympathetic facts in support of its request.  Nevertheless, as I explained in detail in my dissent in Sunflower, the grant of such waiver exceeds our legal authority under the Federal Power Act, as defined by two legal doctrines: the filed rate doctrine and the rule against retroactive ratemaking.[1] 

For these reasons, I respectfully dissent.

[1] Sunflower Elec. Power Corp., 172 FERC ¶ 61,054 at P 5 (2020) (Sunflower).