Commissioner James Danly Statement
February 28, 2022
Docket No. EL22-9-000
I concur in part in today’s order[1] denying in part ITC Midwest LLC’s (ITC Midwest) petition for a declaratory order. I dissent to the extent that this order acts upon ITC Midwest’s request “for a declaratory order finding that ITC Midwest is not required to provide backup service to Northeast Missouri Electric Power Cooperative (NEMO) . . . .”[2] ITC Midwest contends that “[i]t is unclear whether NEMO is claiming that ITC Midwest is required to provide only backup transmission . . . or also generation as a ‘backup supply service’ . . . neither type of service is required by the [agreement at issue].”[3] In relevant part, the Commission denies the request that it find ITC Midwest is not required to provide backup transmission service to NEMO and grants the request that Order No. 888 does not require ITC Midwest to provide backup supply service.[4] The Commission then clarifies that “this finding should not be construed as granting ITC Midwest the relief it is requesting in this Petition.”[5] The Commission enjoys significant discretion in responding to petitions for declaratory order and should exercise that discretion here.[6] I do not understand why the Commission would choose to take any position in a declaratory order regarding an undefined term that ITC Midwest struggles to describe and that is not required by the agreement at issue. At the very least, it is hard to understand how such a declaratory order can be said to terminate a controversy or remove uncertainty.[7] I would have either denied—or, better, declined to act upon—ITC Midwest’s petition as to the issue of backup service.
For these reasons, I respectfully concur in part and dissent in part.
[1] ITC Midwest LLC, 178 FERC ¶ 61,150 (2022) (ITC Midwest).
[2] ITC Midwest LLC November 2, 2021 Petition for Declaratory Order, Docket No. EL22-9-000, at 1.
[3] Id. at 12.
[4] See, e.g., ITC Midwest, 178 FERC ¶ 61,150 at P 32.
[5] Id. P 40.
[6] See, e.g., City of Alameda, Cal. v. Pac. Gas & Elec. Co., 176 FERC ¶ 61,013, at P 31, order addressing arguments on reh’g and providing clarification, 177 FERC ¶ 61,038 (2021); 18 C.F.R. § 385.207(a)(2).
[7] See 18 C.F.R. § 385.207(a)(2).