Commissioner James Danly Statement
October 16, 2020
Docket No. ER20-1642-000
The Commission’s order issued today in this docket addresses a request for a retroactive waiver.[1] Nine other orders issued at the Commission’s October Public Meeting address similar waiver requests.[2] In addition, the Commission issued two such orders on September 30, 2020, shortly before the October Public Meeting.[3] In total, that is twelve orders issued in less than three weeks addressing retroactive waiver requests. I have several concerns about these orders, which I discussed briefly in my dissents to the Montana-Dakota and Lightsource orders that were issued on September 30 and again in greater detail in my dissent to the Sunflower order that is being issued today.
I concur in the result of the Commission’s order in this proceeding because, unlike several of the Commission’s other orders, the Commission’s order in this proceeding does not exceed its legal authority. Here, we have not granted a retroactive waiver that violates the related doctrines prohibiting such waivers: the filed rate doctrine and the rule against retroactive ratemaking.[4] Instead, we have dismissed Mariposa’s waiver request as moot because the Commission did not act on the waiver by the time the June 30, 2020, cure period had lapsed, and thus it is too late for CAISO to accept Mariposa’s interconnection request and admit Mariposa’s natural gas-fired generator project into Cluster 13.
Although I agree with the dismissal of the waiver request, I disagree that it is appropriate to dismiss the request on mootness grounds alone. Mariposa made every effort to make the Commission aware of the need to act on its request before it was too late. Yet our order provides no explanation for our waiting over five months before ruling, by which time we could provide no relief. This must be difficult for Mariposa to accept, especially since, while we deny their request, we approve other retroactive waivers on a timely basis. This is one of three orders issued today in which the Commission has—inexcusably in my view—denied retroactive waivers on mootness grounds without providing any justification for our delay which caused the waiver requests to become moot.[5] The Commission’s delay may not violate any legal principles, but this is not how we should treat the entities subject to our regulation and oversight.
Instead of denying on mootness grounds, I would have found that Mariposa’s waiver request violated the filed rate doctrine and the rule against retroactive ratemaking. Mariposa filed on April 23, 2020, to waive Appendix DD, section 3.5.1 of the California Independent System Operator Corporation’s (CAISO) Open Access Transmission Tariff, to accept a late study deposit after the tariff deadline. The Commission had no legal authority to grant this waiver. There was no prior notice that the deposit deadline could be deferred or ignored,[6] and the Commission cannot use section 309 of the Federal Power Act[7] to ignore the express terms of the tariff for equitable considerations.[8] If we had ruled in this fashion, Mariposa would have received a reasoned explanation for the denial of its waiver request.
If Mariposa and CAISO wish to avoid this outcome when a party seeking to interconnect has failed to submit a full study deposit by the tariff deadline, CAISO can file to change its tariff. CAISO could propose to permit late study deposits; it could extend the deadline; it could provide notice to all parties of the circumstances when the deposit deadline will be waived. There are many options that fall within the
Commission’s legal authority, but the Commission has no power to retroactively change the express terms of CAISO’s tariff.
I would have denied the waiver request on these grounds, rather than wait until the cure period lapsed and declare it moot without providing any explanation for the delay. This would avoid the inconsistent decision making and lack of guidance that I discuss in more detail in my dissent in the Sunflower order.[9]
For these reasons, I respectfully concur.
[1] See Mariposa Energy, LLC, 173 FERC ¶ 61,053 (2020).
[2] See Pac. Gas & Elec. Co., 173 FERC ¶ 61,051 (2020); Borrego Solar Sys. Inc., 173 FERC ¶ 61,052 (2020) (Borrego); Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Sunflower); Midcontinent Indep. Sys. Operator, Inc., 173 FERC ¶ 61,055 (2020); Pub. Serv. Elec. & Gas Co., 173 FERC ¶ 61,056 (2020); Upstream Wind Energy LLC, 173 FERC ¶ 61,057 (2020); Vineyard Wind LLC, 173 FERC ¶ 61,058 (2020) (Vineyard); Columbia Gas Transmission, LLC, 173 FERC ¶ 61,064 (2020); S. Star Cent. Gas Pipeline, Inc., 173 FERC ¶ 61,066 (2020).
[3] See Montana-Dakota Utils. Co., 172 FERC ¶ 61,278 (2020) (Montana-Dakota); Lightsource Renewable Energy Dev., LLC, 172 FERC ¶ 61,294 (2020) (Lightsource).
[4] See Proposed Policy Statement on Waiver of Tariff Requirements and Petitions or Complaints for Remedial Relief, 171 FERC ¶ 61,156, at P 5 (2020).
[5] The other two orders are the Borrego order and the Vineyard order.
[6] See Old Dominion Elec. Coop., Inc. v. FERC, 892 F.3d 1223, 1231 (D.C. Cir. 2018) (quoting Nat. Gas Clearinghouse v. FERC, 965 F.2d 1066, 1075 (D.C. Cir. 1992)).
[7] 16 U.S.C. § 825h (2018).
[8] See Pub. Utils. Comm’n of Cal. v. FERC, 988 F.2d 154, 168 n.12 (D.C. Cir. 1993) (citation omitted).
[9] See Sunflower, 173 FERC ¶ 61,054 (Danly, Comm’r, dissenting).