Commissioner James Danly Statement
January 7, 2022
Docket No. ER22-174-000
I concur in the result of the order denying Andro Hydro LLC’s request for waiver. I agree with the analysis in the order, but in addition to that, I would deny the waiver because it seeks retroactive changes to the filed rate and thus violates the filed rate doctrine and rule against retroactive ratemaking.
Andro Hydro LLC missed the September 10, 2021 tariff deadline to reduce the amount of capacity it seeks to qualify in its application and thus requests a waiver to excuse the missed deadline.[1] The Commission has no power to retroactively change the filed rate.[2] We therefore have no power to grant the requested waiver.
Neither Andro Hydro LLC in its motion nor the Commission in its order mention the fact that the requested waiver is clearly retroactive and therefore unlawful. Both the motion and the order thus intentionally obscure a fundamental, threshold issue with which the Commission must grapple.
I expect parties seeking waivers of the filed rate to specifically address why the waiver is not retroactive and therefore unlawful. I encourage my colleagues on the Commission to do the same.
For these reasons, I respectfully concur.