Commissioner James Danly Statement
December 19, 2022
EL23-6-000, QF20-1379-002
I concur in the determination in today’s order[1] to decline to initiate an enforcement action in response to the petition filed by Hollow Road Solar, LLC (Hollow Road).[2] The Notice of Intent Not to Act allows Hollow Road to bring an enforcement action in court. I dissent from today’s order to the extent that it includes unnecessary declarations. I note that Hollow Road styled its filing as a petition for enforcement and not as a petition for declaratory order.[3]
The Commission certainly may offer unnecessary declarations on any subject it chooses, though whether it should is a different matter entirely—prudence demands that adjudicators keep unnecessary pronouncements to a minimum. If Hollow Road wishes to initiate legal action, the court is perfectly capable of adducing evidence and reaching a decision on the merits. The Notice of Intent Not to Act perfects Hollow Road’s right to go to court.
Hollow Road can now make its own choices. As for the Commission, I have said before[4] that we should be more circumspect.[5]
For these reasons, I respectfully concur in part and dissent in part.
[1] See Hollow Road Solar, LLC v. Old Dominion Elec. Coop., 181 FERC ¶ 61,237 (2022) (Hollow Road).
[2] We issued an order dismissing a prior petition filed by Hollow Road for lack of enforcement jurisdiction pursuant to 210(h)(1) of the Public Utility Regulatory Policies Act of 1978 (PURPA) noting that Hollow Road was not precluded from filing a separate petition for enforcement pursuant to PURPA section 210(h)(2) and that the Commission would address any such petition at that time, which is the instant petition. Hollow Road Solar, LLC, 181 FERC ¶ 61,009 (2022).
[3] Hollow Road, October 20, 2022, Petition for Enforcement Pursuant to Section 210(h)(2) of the Public Utility Regulatory Policies Act of 1978, Docket Nos. EL23-6-000, et al.
[4] Magnolia Solar, LLC v. S.C. Pub. Serv. Auth., 179 FERC ¶ 61,016 (2022) (Danly, Comm’r, concurring in part and dissenting in part at 1).
[5] The Commission has properly declined to include unnecessary declarations in its Notice of Intent Not to Act. See, e.g., Beaver Creek Wind I, LLC v. Mont. Pub. Serv. Comm’n, 176 FERC ¶ 61,116 (2021) (Notice of Intent Not to Act with no declaratory rulings); James H. Bankston, Jr. v. Ala. Pub. Serv. Comm’n, 175 FERC ¶ 61,181 (2021) (same); Gregory & Beverly Swecker v. Midland Power Coop., 175 FERC ¶ 61,061 (2021) (same); Red Lake Falls Cmty. Hybrid, LLC, 165 FERC ¶ 61,156 (2018) (same); Franklin Energy Storage One, LLC, 162 FERC ¶ 61,110 (2018) (same); cf. Great Divide Wind Farm 2, LLC, 166 FERC ¶ 61,090 (2019) (Notice of Intent Not to Act and Declaratory Order); Windham Solar LLC, 157 FERC ¶ 61,134 (2016) (same); Windham Solar LLC, 156 FERC ¶ 61,042 (2016) (same); Winding Creek Solar LLC, 151 FERC ¶ 61,103 (2015) (same).