Commissioner James Danly Statement
August 20, 2021
Docket No. ER21-1841-000
I concur in today’s order granting Lookout Solar Park I, LLC’s (Lookout Solar) request for a limited waiver because the waiver is prospective, does not otherwise exceed the Commission’s authority and meets the Commission’s four-factor test based upon the record in front of us.[1]
I write separately, however, to express my continuing concern regarding the innumerable waiver requests the Commission routinely, one might almost say automatically, grants. Granting waiver requests begets further waiver requests. And, sadly, among the most common waiver requests we receive are those related to the tariff provisions designed to manage interconnection queues in regional transmission organizations (RTOs) and independent system operators (ISOs).[2]
These tariff provisions impose deadlines and establish milestones by which RTOs and ISOs are to manage their interconnection queues. As we have known for many years, interconnection queues are badly backlogged. Why the Commission persists in granting waivers of these tariff provisions while complaining about the mismanagement of these queues is hard to understand—failure to enforce deadlines makes interconnection queue problems worse, not better, for generation developers. The Commission should be sparing in its liberality.
Thus, I agree with Commissioner Christie that interconnection queues need better management.[3] I also agree with him that the Commission should not grant “unsupportable waiver requests.”[4] I respectfully disagree, however, that this waiver is either unsupportable or unsupported.
From the record before us, it appears SPP bears a large share of the blame by having failed to correct its errors and repost accurate study results. SPP does not dispute Lookout Solar’s claim that SPP erred in over-allocating costs to Lookout Solar associated with a major transmission network upgrade.[5] SPP staff agreed to reduce the approximately $16.9 million FS2 amount allocated to Lookout Solar to approximately $8.1 million, yet SPP did not correct the DISIS Phase 1 results or issue a revised invoice.[6] In addition, Lookout Solar provided SPP with additional potential errors in the DISIS Phase 2 results.[7] Once again, while SPP staff acknowledged that the results appeared to over-allocate certain upgrade costs to Lookout Solar, SPP did not revise the cost allocation in the reposted DISIS Phase 2 results, nor did it provide any explanation for the significant anomalies.[8] SPP does not dispute these assertions.[9] Indeed, the poverty of detail and counterargument in SPP’s protest is quite telling.
SPP is conducting a restudy of the DISIS Phase 2 results.[10] It can and should address the errors Lookout Solar has identified. Because SPP’s Tariff allows interconnection customers 15 business days to review the revised results that includes Lookout Solar, granting this waiver provides Lookout Solar a comparable 15 business days to submit its financial security upon the restudy’s completion. Accordingly, I support this waiver because SPP’s own errors—and its apparent delay—that SPP should act promptly to address now and going forward, stand as good cause to grant it.
There is only one question before us now: should we, or should we not, grant the requested waiver? On balance, I believe that we should.
For these reasons, I respectfully concur.
[1] Lookout Solar Park I, LLC, 176 FERC ¶ 61,100, at PP 19-24 (2021). However, “[i]t bears repeating . . . that the Commission does not have the authority to ignore the law to achieve an equitable result. Had we found that . . . actions violated the filed rate doctrine or the rule against retroactive ratemaking, we would not then invoke the Commission’s assessment of the equities to overcome those violations.” Pub. Utils. Comm’n of Cal. v. FERC, 988 F.2d 154, 168 n.12 (D.C. Cir. 1993) (citation omitted) (emphasis added); see also AT&T v. Cent. Office Tel., Inc., 524 U.S. 214, 223 (1998) (explaining that the filed rate doctrine applies regardless of any motive “to benefit or harm a particular customer”); Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 132 (1990) (“[S]trict adherence to the filed rate has never been justified on the ground that the carrier is equitably entitled to that rate, but rather that such adherence, despite its harsh consequences in some cases, is necessary to enforcement of the Act.”).
[2] I have warned repeatedly about the effect of granting too many waivers of interconnection queue deadlines. See SunEnergy1, LLC, 176 FERC ¶ 61,004 (2021) (Danly, Comm’r, dissenting at PP 9-13); Buchanan Cty. Solar Project, LLC, 175 FERC ¶ 61,109 (2021) (Danly, Comm’r, dissenting); Rolling Hills Generating, L.L.C., 175 FERC ¶ 61,108 (2021) (Danly, Comm’r, dissenting); Novera Energy, LLC, 175 FERC ¶ 61,107 (2021) (Danly, Comm’r, dissenting); TGE Pennsylvania 202, LLC, 175 FERC ¶ 61,080 (2021) (Danly, Comm’r, dissenting at PP 4-5); Leeward Renewable Energy, LLC, 175 FERC ¶ 61,079 (2021) (Danly, Comm’r, dissenting at PP 4-5); Thunderhead Wind Energy LLC, 175 FERC ¶ 61,071 (2021) (Danly, Comm’r, dissenting at P 3); Grover Hill Wind, LLC, 174 FERC ¶ 61,240 (2021) (Danly, Comm’r, dissenting at P 1); PJM Interconnection, L.L.C., 174 FERC ¶ 61,075 (2021) (Danly, Comm’r, concurring in the judgment at P 3); RRE Power LLC, 174 FERC ¶ 61,052 (2021) (Danly, Comm’r, dissenting at P 2); Stoney Creek Solar LLC, 174 FERC ¶ 61,054 (2021) (Danly, Comm’r, dissenting at P 2); Glidepath Ventures, LLC, 173 FERC ¶ 61,085 (2020) (Danly, Comm’r, dissenting at PP 2-5); Lightsource Renewable Energy Dev., LLC, 172 FERC ¶ 61,294 (2020) (Danly, Comm’r, dissenting at P 4).
[3] Lookout Solar Park I, LLC, 176 FERC ¶ 61,100 (Christie, Comm’r, dissenting at P 6).
[4] Id.
[5] See Waiver Request at 2-3; Lookout Solar Answer at 3-5.
[6] See Waiver Request at 3; Lookout Solar Answer at 3-4.
[7] Waiver Request at 4; Lookout Solar Answer at 4.
[8] See Waiver Request at 4; Lookout Solar Answer at 4-5.
[9] Lookout Solar Park I, LLC, 176 FERC ¶ 61,100 at P 24.
[10] Id. PP 19, 24.