Commissioner James Danly Statement
March 19, 2021
Docket No. ER18-2404-000
I fully support the Commission’s ruling in this order rejecting Southwest Power Pool, Inc.’s (SPP) retroactive waiver request on filed rate doctrine grounds. SPP’s waiver request indisputably runs afoul of the filed rate doctrine and we have “no discretion to waive the operation of a filed rate or to retroactively change or adjust a rate for good cause or for any other equitable considerations.”[1] I write separately because the Commission’s order provides no explanation for why it has applied the filed rate doctrine in this case but has not applied it in the numerous orders it has issued in the last six months where the doctrine is equally applicable.[2] After the issuance of this order, members of the electric industry must be as befuddled as I am in trying to understand when the Commission will grant a retroactive waiver request and when it will deny such a request. Not only are we obligated to provide such an explanation under the Administrative Procedure Act, but we owe clarity to the entities subject to our jurisdiction or who are affected by our actions.
Any party who is as bewildered by the Commission’s actions in these cases as I am should see their case through to appeal. Eventually, the courts will remind us of our obligations.
For these reasons, I respectfully concur.
[1] Old Dominion Elec. Coop., v. FERC, 892 F.3d 1223, 1230 (D.C. Cir. 2018) (ODEC) (citing Columbia Gas Transmission Corp., 895 F.2d 791, 794-97 (D.C. Cir. 1990)) (emphasis added).
[2] One such order was issued today. In that order, the Commission, without explanation, grants a retroactive waiver to the Midcontinent Independent System Operator, Inc. See Midcontinent Indep. Sys. Operator, Inc., 174 FERC ¶ 61,202 (2021).