Commissioner Christie’s Concurrence in Elliott’s FPA Section 203 Filing, EC23-112

Docket No. EC23-112-000

I concur with today’s order as it is consistent with the Commission’s policy and precedent under section 203 of the Federal Power Act (FPA).  I write separately, however, to emphasize the issues raised by Public Citizen, Inc. (Public Citizen) in this proceeding.  Simply because Elliott Associates, L.P., Elliott International, L.P., and The Liverpool Limited Partnership (Elliott) have received Commission authorization to purchase up to 20% of the common stock of NRG Energy, Inc. (NRG) should not suggest, in my view, that the Commission is not interested in Public Citizen’s comments concerning Elliott’s investment practices and relationships with jurisdictional utilities.  As Public Citizen points out, evaluating whether Elliott is an affiliate of NRG or of other jurisdictional utilities in which it may have an investment interest is an ongoing responsibility of the Commission.  Moreover, although today’s order does not make a finding of affiliation, the order nonetheless recognizes that the possibility of a finding of affiliation in the future remains.

To that end, in future proceedings, interested entities should continue to file information they believe may be of interest to the Commission in its review, including, as Public Citizen has done here, information regarding investment practices in jurisdictional utilities commenters believe may suggest indicia of influence as they relate to affiliation and control.  

I also note generally that the Commission has demonstrated its interest in seeking commentary concerning certain aspects of the participation of investment companies in jurisdictional utilities as recently as December 19, 2023, when it issued a notice of inquiry (NOI), in Docket No. AD24-6-000 seeking comment on the Commission’s policy on providing blanket authorizations for investment companies under FPA section 203(a)(2).[1]  Many questions in this NOI relate to whether certain actions by investment companies may indicate influence or control, in a similar vein to the arguments raised by Public Citizen here.  As I recently noted in another concurrence,[2] interested parties may submit comments concerning the Commission’s blanket authorization policy to foster a well-rounded discourse on this subject for the Commission’s consideration.  I welcome

the Commission’s continued evaluation of the issues considered in the NOI and look forward to an opportunity for the Commission to pose questions like those raised here by Public Citizen for further examination in the appropriate procedural vehicle.

For these reasons, I respectfully concur.