Commissioner James Danly Statement
February 1, 2021
Docket No. ER21-546-000
I fully support the Commission’s order in this proceeding denying the waiver requested by V20 Mansfield, LLC, AF1327, LLC, and West Denville, LLC (together, Customers). The order fully explains why Customers could not have had a good faith expectation that that they had until December 31, 2020 to post the required security for their projects.
I issue this separate statement because I believe that the waiver request should be denied on two other grounds. First, Customers have requested a retroactive waiver of a deadline that they failed to meet. As I explained in detail in my dissent in Sunflower, the grant of such retroactive waivers exceeds the Commission’s legal authority under the Federal Power Act, which is constrained by two legal doctrines: the filed rate doctrine and the rule against retroactive ratemaking.[1] We could have denied the waiver request here on these grounds without ever reaching the question of whether Customers had satisfied our four-factor test for granting waivers, which the Commission should only apply to prospective waiver requests.
Second, Customers requested the waiver of a tariff deadline imposed by PJM Interconnection, L.L.C. (PJM) for project developers to maintain their position in PJM’s interconnection queue. Tariff provisions requiring developers to take particular actions by certain dates are an important tool in managing interconnection queues. Here, PJM argued that granting the requested waiver would be contrary to efficient queue administration and thereby harm all interconnection customers in the queue.[2] PJM is quite correct, and this concern alone would justify denial of the request in this proceeding. Indeed, PJM’s concerns apply in all cases concerning waiver of interconnection-queue deadlines and, going forward, the Commission would do well to bear in mind PJM’s concerns when considering similar waiver requests.