Commissioner James Danly Statement
January 22, 2021
Docket Nos. ER21-476-000, et al.
I support the Commission’s order in this proceeding approving the revised tariff records pertaining to Georgia Power Company’s, Mississippi Power Company’s, and Southern Electric Generating Company’s recovery of Post-Retirement Benefits Other Than Pensions (PBOP). However, I dissent from the Commission’s citation to Central Hudson[1] to approve the proposed retroactive effective date for such revisions on the grounds that the revisions result in rate reductions. Central Hudson addresses only one subject—it provides guidance as to how the Commission will exercise the authority explicitly granted by section 205(d) of the Federal Power Act to waive the 60-day prior notice requirement. Central Hudson does not bear upon the question of whether retroactive changes in rates (even rate reductions) can antedate a movant’s filing.[2]
I acknowledge that there could conceivably be some basis upon on which the Commission might approve a retroactive rate reduction, but it is evident that it cannot be done solely in reliance on Central Hudson.
For these reasons, I respectfully concur in part and dissent in part.
[1] Cent. Hudson Gas & Elec. Corp., 60 FERC ¶ 61,106, at 61,338, reh’g denied, 61 FERC ¶ 61,089 (1992).
[2] See Consolidated Edison Co. of N.Y., Inc. v. FERC, 347 F.3d 964, 969 (D.C. Cir. 2003) (recognizing that the Commission’s section 205 good cause waiver authority does not permit it to make a retroactive rate adjustment); Columbia Gas Transmission Corp. v. FERC, 895 F.2d 791, 795-97 (D.C. Cir. 1990) (“In sum, we have found no support for the Commission’s contention that on a finding of sufficient cause, it has the authority, under section 4(d), to waive the filed rate doctrine. . . . For the reasons discussed above, we hold that as it has no authority, under section 4(d), to waive the filed rate doctrine . . . .”) (emphasis added).