ITC Midwest, LLC Docket No. ER23-2033-000
I dissent because I see no compelling reason to grant ITC Midwest the Abandoned Plant Incentive right now. There currently is pending in the Iowa state courts a challenge to Iowa’s Right of First Refusal (ROFR) law – the same law under which MISO assigned the Project to ITC Midwest.[1] Should the Iowa ROFR law ultimately be struck down by the Iowa courts, presumably the bidding for the Project would have to be rerun by MISO on a competitive basis and only then would the award of the Project be certain. In the alternative, should the Iowa ROFR law be upheld, the Commission could grant the incentive at that time.[2]
For these reasons, I respectfully dissent.
[1] Indeed, the Iowa Supreme Court has enjoined enforcement of the Iowa ROFR law pending the resolution of the state court litigation, concluding that the plaintiff challenging the Iowa ROFR law “has shown a likelihood of success on the merits of its claim that the ROFR’s enactment violates . . . the Iowa Constitution.” Consumer Alliance Protest, Ex. B at 35; see also id. at 4, 30.
[2] While the Commission should always seek to act expeditiously, I note too that there is no statutory deadline to act on ITC Midwest’s filing by a particular date. Moreover, while the majority suggests that nothing “preclude[s]” the Commission from granting the incentive and issuing this order, nothing requires it either. ITC Midwest, LLC, 184 FERC ¶ 61,083, at P 44 (2023).