Commissioner James Danly Concurrence Regarding Vineyard Wind LLC

Commissioner James Danly  Statement
October 16, 2020
Docket No. ER19-570-000

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 Vineyard Wind LLC’s (Vineyard) waiver request as moot because the Commission did not act on the request that Vineyard be granted a waiver that would have allowed it to participate in the 13th Forward Capacity Auction (FCA 13) until well after that auction was conducted.

Although I agree with the dismissal of the waiver request, I disagree that it is appropriate to dismiss the request on mootness grounds.  Vineyard made every effort to make the Commission aware of the need to act on its request quickly before it was too late.  Yet our order provides no explanation for our waiting almost two years before ruling, by which time we could provide no relief.  This must be difficult for Vineyard to accept, especially since, as we deny its request, we approve several other retroactive waivers to other parties 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 inexcusable 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 Vineyard’s waiver request violated the filed rate doctrine and the rule against retroactive ratemaking.  Vineyard filed on December 14, 2018, for a waiver of section III.13.1.1.2.10 and related timelines of the ISO New England Inc. (ISO-NE) Transmission, Markets and Services Tariff (Tariff), which would have made it eligible to participate in FCA 13 after the tariff deadline of October 2, 2018.  The Commission had no legal authority to grant this waiver.  There was no prior notice that the 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, Vineyard would have received a reasoned explanation for the denial of its waiver request.

I would have denied the waiver request on these grounds, rather than wait until the auction had run 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.