Commissioner James Danly Statement
February 11, 2022
Docket No. ER21-2337-002
I concur with today’s order approving a Federal Power Act section 205[1] proposal to net certain behind-the-meter generation against monthly load because, based on the record before us (such as it is), it appears that this practice will largely reflect actual use of the transmission system.[2] I therefore concur that the proposal appears to meet the section 205 burden of proof.
I write separately to highlight that, while I have a suspicion that the proposal might actually be unjust and unreasonable, the record cannot support that conclusion. Many parties filed comments on the section 205 proposal, but only one party—the New England Power Generators Association—filed a protest (as amended after deficiency letters had been issued). If parties have an objection to a section 205 filing, they must file a protest.[3] However compelling or illuminating comments may be, they are not protests.
And while the New England Power Generators Association raised potential issues of discrimination in its pleadings, it offered no affidavit and no expert support. In a word, its protest lacked hard evidence. We cannot vote to reject an otherwise well-supported section 205 filing, whatever our theoretical misgivings, in the absence of countervailing evidence. Parties that wish to oppose a utility’s tariff filings must come to the Commission armed with sufficient evidence to persuade us that the proposal fails to satisfy section 205.
For these reasons, I respectfully concur.
[1] See 16 U.S.C. § 824d.
[2] ISO New England Inc., 178 FERC ¶ 61,086 (2022).
[3] See 18 C.F.R. § 385.211(a)(1) (“Any person may file a protest to object to any application, complaint, petition, order to show cause, notice of tariff or rate examination, or tariff or rate filing.”) (emphasis added); id. § 385.211(a)(3) (“[T]he Commission will consider protests in determining further appropriate action.”) (emphasis added); see also 18 C.F.R. § 385.202 (“Pleadings include any application, complaint, petition, protest, notice of protest, answer, motion, and any amendment or withdrawal of a pleading.”) (emphasis added).