Docket Nos. ER23-973-001, ER23-974-001
I concur in today’s order related to filings involving Niagara Mohawk’s portion of the development of the Smart Path Connect Project (Project), including issues related to Project cost allocation (including a cost allocation agreement and proposed rate schedule), a CWIP incentive, a cost containment provision, and revisions to the Transmission Services Charge related to implementing the Project Rate.[1] I write separately to highlight my reasons for concurring in this order, which echo what I have noted in previous statements.
As I noted in another order related to the Project:
The costs related to a public policy project – which the Smart Path Connect Project is – should be borne by the sponsoring state and not shifted to consumers in other states without the consent of responsible officials in those states, who can then be held accountable by the voters of that state for their decisions (as can officials in the sponsoring state). That is how democracy is supposed to work.[2]
I am aware of no evidence in the record before us that indicates that the matters addressed in this order will cause citizens of other states to be forced to pay for a New York state public policy project: this is vital to my decision to vote for this order.
As I noted in my concurrence to the Cost Sharing and Recovery Agreement (CSRA) order,[3] which order is mentioned in today’s order:
[T]here is nothing in the record in this matter to indicate that any of the costs of the transmission projects that will be built to implement New York’s public policies under the terms described in this proposal will be forced on consumers in other states. As I have also said before, if the record showed costs for New York’s policies were being imposed on consumers in states that had not consented to such cost allocation, that would be a much different story and would quite likely result in unjust and unreasonable rates. And claiming that such consumers were somehow “beneficiaries” of New York’s public policies, when out-of-state consumers had no say in electing the New York politicians adopting such policies, would not cure the fundamental unjustness and unreasonableness of such cost allocation.[4]
Sticking with the topic of benefits for a moment, I note that today’s order makes certain statements about benefits including that “Niagara Mohawk has demonstrated that the proposed cost allocation is roughly commensurate with the benefits of the Project.”[5] In the CSRA Order a similar analysis was made with regard to cost allocation across the state based on a load-share basis.
I emphasize again today, what I said then:
While the order states that the allocation of costs of these upgrades on a load-share basis across the state is roughly commensurate with the benefits, this finding is only appropriate under these facts and circumstances. Any suggestion that this order can be read to permit shifting a state’s public policy costs to consumers in other states or to suggest that the consumers in other states benefit from those projects without the express agreement of those other states is incorrect and it is not the order I support here or would have supported here.[6]
My concurrence in this matter is similarly limited to the very specific facts in this matter and shall not be read otherwise.
For these reasons, I respectfully concur.
[1] As noted in today’s order, the New York State Public Service Commission (NYSPSC) filed comments in both dockets. The NYSPSC supports the “Cost Allocation Agreement and the statewide load-ratio share cost allocation of Niagara Mohawk’s Project costs as a just and reasonable means for allocating those costs.” N.Y. Indep. Sys. Operator, Inc., 184 FERC ¶ 61,059, at P 16 (2023); see NYSPSC Feb. 21, 2023 Comments at 2, 4. Moreover, while the NYSPSC takes no position on the rate treatments and the proposed cost allocation mechanism, “it recognizes the need for regulatory certainty to allow Niagara Mohawk to proceed with the Project.” N.Y. Indep. Sys. Operator, Inc., 184 FERC ¶ 61,059 at P 16 (citing NYSPSC Feb. 21, 2023 Comments at 2, 4). The support of the NYSPSC of the cost allocation agreement is noteworthy to my analysis of the findings made in this order as is the NYSPSC’s failure to protest the rate treatments and the cost allocation mechanism.
[2] N.Y. Indep. Sys. Operator, Inc., 180 FERC ¶ 61,004 (2022) (addressing New York Power Authority’s (NYPA) requests for certain incentives related to the Project) (Christie, Comm’r, concurring at P 2) (footnote omitted) (citing in support of my conclusion that the Project is a public policy project, NYPA Filing, Docket No. ER22-1014-001, at 2 (Feb. 10, 2022) (“The [Smart Path Connect (SPC)] Project was identified and selected by the New York State Public Service Commission . . . as a ‘priority transmission project’ . . ., the construction of which is needed ‘expeditiously’ to meet the State’s clean energy goals.”)). In today’s proceeding I note that the transmittal letter accompanying the filing made by NYISO on behalf of Niagara Mohawk similarly states: “The SPC Project was identified and selected by the New York Public Service Commission . . ., pursuant to New York State legislation, as a ‘priority transmission project’ that is needed on an expedited basis in order to meet the State’s legislatively enacted clean energy policies and provide benefits to consumers throughout New York State.” NYISO Jan. 30, 2023 Tariff Filing Transmittal Letter, Docket No. ER23-973-000, at 2; see also Niagara Mohawk Jan. 30, 2023 Transmittal Letter, Docket No. ER23-974-000, at 2-3.
[3] Consol. Edison Co. of N.Y., 180 FERC ¶ 61,106 (2022) (CSRA Order) (Christie, Comm’r, concurring).
[4] Id. (Christie, Comm’r, concurring at P 4) (footnote omitted) (citing N.Y. Indep. Sys. Operator, Inc., 180 FERC ¶ 61,004 (Christie, Comm’r, concurring at P 2) (“Thus, there being no evidence in this record that citizens of other states will be made to pay for New York’s policy decisions through the potential impacts of NYISO’s proposed tariff revisions, I conclude that any costs will be confined to New York. Based on the particular set of facts in this record, I do not find that the NYISO proposal ‘as-applied’ results in rates that are ‘unjust, unreasonable and unduly discriminatory or preferential’ under the FPA.”) (quoting N.Y. Indep. Sys. Operator, Inc., 179 FERC ¶ 61,102 (Christie, Comm’r, concurring at P 3) (quoting N.Y. Indep. Sys. Operator, Inc., 178 FERC ¶ 61,101 (Christie, Comm’r, concurring at PP 4-6)) (further citations omitted)); NSTAR Elec. Co., 179 FERC ¶ 61,200 (2022) (Christie, Comm’r, concurring at P 10) (“To reiterate, imposing the costs of a project driven by one state’s public policies onto another state that has not consented to such cost allocation would, in my view, presumably result in unjust and unreasonable rates.”) (available at https://www.ferc.gov/media/e-13-er22-1247-000); N.Y. Pub. Serv. Comm’n v. N.Y. Indep. Sys. Operator, Inc., 174 FERC ¶ 61,110 (2021) (Christie, Comm’r, concurring at P 3) (“I also note that the NYISO is a single-state ISO and I have been able to locate no evidence in the record that the New York policies at issue in today’s order are causing cost-shifting onto consumers in other states. If consumers in other states were disadvantaged, I may well view this matter differently.”) (emphasis added) (available at https://www.ferc.gov/news-events/news/item-e-2-commissioner-mark-c-christie-concurrence-regarding-new-york-state-public); Commissioner Mark C. Christie, Fair RATES Act Statement on PJM Minimum Offer Price Rule (MOPR) Revisions, Docket No. ER21-2582-000 at P 6 (Oct. 19, 2021) (“. . . I would have proposed that PJM formulate a replacement for the current MOPR based on three broad principles: (1) a state may designate specific or categorical resources as ‘public policy resources’ and such designated resources will be funded through a mechanism chosen by the state outside of the capacity market . . . and (3) non-sponsoring state consumers would not be forced to pay for another state’s designated public-policy resources.”) (footnotes omitted) (emphasis in the original and added) (available at https://www.ferc.gov/news-events/news/commissioner-christies-fair-rates-act-statement-pjm-mopr)).
[5] N.Y. Indep. Sys. Operator, Inc., 184 FERC ¶ 61,059 at P 47 (footnote omitted).
[6] CSRA Order, 180 FERC ¶ 61,106 (Christie, Comm’r, concurring at P 5).