Commissioner James Danly Statement
August 1, 2023
Docket Nos. ER18-1639-021 and ER18-1639-000
I concur in today’s issuance approving Constellation Mystic Power, LLC’s Settlement Agreement and related materials (collectively, Settlement) addressing Formal Challenges to Mystic’s 2021 Informational Filing and 2022 Informational Filing submitted pursuant to the Mystic cost-of-service agreement.[1]
The Settlement provides, in part, that the standard of review applicable to modifications to the Settlement proposed by third parties and the Commission acting sua sponte is “the most stringent standard permissible under applicable law.”[2] The majority states it does “not decide in this order what standard of review applies to the Settlement or any component of it.”[3] While declining to offer specifics, the majority does take the trouble, unnecessarily, to differentiate between: (1) individualized rates, terms, or conditions that apply only to sophisticated parties who negotiated them freely at arm’s length; or (2) rates, terms, or conditions that are generally applicable or that arose in circumstances that do not provide the assurance of justness and reasonableness associated with arm’s-length negotiations.[4] Citing New England Power Generators Association v. FERC,[5] the majority notes that the D.C. Circuit determined that the Commission is legally authorized to impose a more rigorous application of the statutory “just and reasonable” standard of review on future changes to agreements that fall within the second category described above.[6]
Since the majority will not specify the standard of review, I will. The Mobile-Sierra[7] presumption applies, and the public interest standard governs any future changes either by the filing parties or the Commission. The majority’s coy refusal to speak directly on the matter changes nothing.
For these reasons, I respectfully concur.
[1] Constellation Mystic Power, LLC, 184 FERC ¶ 61,070 (2023). I recognize that language like this appears in many of our uncontested settlement orders. See, e.g., Sea Robin Pipeline Co., LLC, 182 FERC ¶ 61,030, at PP 10-11 (2023); PJM Interconnection, L.L.C., 181 FERC ¶ 61,181, at PP 35-36 (2022). Nevertheless, the fact that this has become standard Commission practice makes it neither sensible nor prudent, and my objections bear occasional repetition.
[2] Constellation Mystic Power, LLC, 184 FERC ¶ 61,070 at P 3 (quoting Settlement at Art. 6); see also id. P 4.
[3] Id. P 4.
[4] Id. PP 4-5. This is yet another allusion to the Commission-created distinction often employed to undermine the Mobile-Sierra doctrine, as if contracts with routine or common terms are somehow a lesser form of contract. See, e.g., Basin Elec. Power Coop., 172 FERC ¶ 61,221 (2020) (Danly, Comm’r, dissenting in part) (disagreeing with decision to set for hearing the question of whether the Mobile-Sierra presumption should apply to rate schedules and the analysis applied by the Commission in considering whether and when such presumption should apply).
[5] New England Power Generators Ass’n v. FERC, 707 F.3d 364, 370-371 (D.C. Cir. 2013).
[6] Constellation Mystic Power, LLC, 184 FERC ¶ 61,070 at P 5.
[7] United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332 (1956) (Mobile); FPC v. Sierra Pac. Power Co., 350 U.S. 348 (1956) (Sierra).