Commissioner James Danly Statement
October 16, 2020
Docket No. ER18-1611-000
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 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 found that the Midcontinent Independent System Operator, Inc. (MISO) violated its tariff because its settlement software did not properly implement its tariff. I agree with this holding. In my view, this is the approach we should take in all situations where a utility has violated its own tariff. I also agree with the Commission’s decision not to impose any penalty on MISO or require that MISO resettle its payments to correct for the mistakes. The relatively small error and the extreme difficulty in resettling bills back to 2009 support this decision.
However, I disagree with the Commission’s holding that, because we are finding that MISO violated its tariff, we need not rule on its waiver request. This puts the cart before the horse. We should find that MISO violated its tariff only after we first deny the waiver; if we had granted the waiver there would be no tariff violation. Apparently, the Commission is so unwilling to acknowledge that the filed rate doctrine and rule against retroactive ratemaking ever apply that it refuses to address the issue here. I do not understand that reluctance in this proceeding. MISO’s waiver request goes to those provisions of its tariff setting its rate, not to a non-rate tariff provision. If the filed rate doctrine and rule against retroactive ratemaking do not apply to MISO’s waiver request here, they could never apply to any waiver request under any circumstances.
In my view, the Commission first should have denied MISO’s waiver request, and only then made the finding in this order that MISO violated its tariff. Failing to do so results in the same inconsistent decision making and lack of guidance that I discuss in more detail in my dissent in the Sunflower order.[5]
For these reasons, I respectfully concur.
[1] See Midcontinent Indep. Sys. Operator, Inc., 173 FERC ¶ 61,055 (2020).
[2] See Pac. Gas & Elec. Co., 173 FERC ¶ 61,051 (2020); Borrego Solar Sys. Inc., 173 FERC ¶ 61,052 (2020); Mariposa Energy, LLC, 173 FERC ¶ 61,053 (2020); Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Sunflower); 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); 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] See Sunflower, 173 FERC ¶ 61,054 (Danly, Comm’r, dissenting).