Commissioner James Danly Statement
April 8, 2022
Docket Nos. EL22-29-000, QF15-850-003
I concur in the determination in today’s order[1] to decline to initiate an enforcement action in response to the petition filed by Magnolia Solar, LLC (Magnolia). The Notice of Intent Not to Act allows Magnolia to bring an enforcement action in court. I dissent from today’s order to the extent that it includes unnecessary declarations. I note that the filing at issue here was styled as a petition for enforcement and not as a petition for declaratory order.[2] And while the Commission may offer unnecessary declarations on any subject it chooses, I do not believe it should. The declarations in this order will not aid the petitioner in court. Should an action be initiated, the court has processes by which to adduce evidence, the law has not been changed or clarified by any of the order’s unnecessary declarations, and the precondition for initiating such a proceeding was fully consummated by the Notice of Intent Not to Act. Responsible adjudication counsels minimalism and the Commission should be more circumspect.[3]
For these reasons, I respectfully concur in part and dissent in part.
[1] See Magnolia Solar, LLC v. S.C. Pub. Serv. Auth., 179 FERC ¶ 61,016 (2022) (Magnolia).
[2] Magnolia, February 8, 2022 Petition for Enforcement of the Public Utility Regulatory Policies Act of 1978, Docket Nos. EL22-29-000, et al.
[3] In recent issuances, the Commission has properly declined to include unnecessary declarations in its Notice of Intent Not to Act. See, e.g., Beaver Creek Wind I, LLC v. Mont. Pub. Serv. Comm’n, 176 FERC ¶ 61,116 (2021) (Notice of Intent Not to Act with no declaratory rulings); James H. Bankston, Jr. v. Ala. Pub. Serv. Comm’n, 175 FERC ¶ 61,181 (2021) (same); Gregory & Beverly Swecker v. Midland Power Coop., 175 FERC ¶ 61,061 (2021) (same); Red Lake Falls Cmty. Hybrid, LLC, 165 FERC ¶ 61,156 (2018) (same); Franklin Energy Storage One, LLC, 162 FERC ¶ 61,110 (2018) (same); cf. Great Divide Wind Farm 2, LLC, 166 FERC ¶ 61,090 (2019) (Notice of Intent Not to Act and Declaratory Order); Windham Solar LLC, 157 FERC ¶ 61,134 (2016) (same); Windham Solar LLC, 156 FERC ¶ 61,042 (2016) (same); Winding Creek Solar LLC, 151 FERC ¶ 61,103 (2015) (same).