Commissioner James Danly Statement
October 16, 2020
Docket No. ER20-1795-000
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 agree with the result and the reasoning of this order. On May 8, 2020, Pacific Gas and Electric Company (PG&E) filed a petition for a limited one-time waiver of the meter data submission provision in section 10.3.6.4 of the California Independent System Operator Corporation’s (CAISO) tariff. Section 10.3.6.4 of the tariff allows 172 days for scheduling coordinators to submit corrected data that CAISO will use to perform recalculations. PG&E seeks to submit corrected meter data for the period of November 30, 2018 through April 16, 2019 in order for CAISO to re-run settlements for this time. The 172-day correction period lapsed by the time PG&E sought the waiver.
The Commission denies this waiver because the Commission does not have the legal authority to grant it under the filed rate doctrine and the rule against retroactive ratemaking. This is correct. I write separately only to highlight that the Commission should have reached the same result in all the retroactive waiver cases identified above. In other cases where it reached the right result, the Commission should have adopted the same reasoning it adopts in this case. There is nothing about these other cases that justifies a different result or different reasoning, and certainly the Commission does not identify any such justification.
For these reasons, I respectfully concur.
[1] See Pac. Gas & Elec. Co., 173 FERC ¶ 61,051 (2020).
[2] See 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); 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); 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 Development, LLC, 172 FERC ¶ 61,294 (2020) (Lightsource).