Commissioner James Danly Statement
April 28, 2021
Docket No. ER21-1557-000
Today, the Commission is issuing two orders—in this proceeding and in Docket No. ER21-1556-000[1]—granting retroactive waivers of interconnection queue deadlines. These waivers should never have been needed in the first place. In both cases: (a) the developers provided what they thought were complete submissions—but which in fact were deficient—a few days before the tariff deadline; (b) the developers assumed that their submissions were complete and made no attempt to confirm with PJM Interconnection, L.L.C. (PJM) that they had satisfied the necessary requirements before the deadline passed; (c) PJM failed to notify the developers of the deficiency until after the deadline had passed; (d) PJM told the developers that, in order to get relief, they would have to seek a waiver of the tariff deadlines from FERC; and (e) PJM has declined to inform the Commission as to whether it supports or opposes the developers’ waiver request.
There is plenty of blame to go around for this situation. First of all, the developers failed to take the simple step of confirming with PJM that their submissions were complete. One would expect that, given the dire consequences of missing the tariff deadline, every developer would seek such confirmation with PJM.[2] Yet in each case, the developer failed to do so, instead assuming that PJM would let them know if anything was amiss. It strikes me as unreasonable to find that a waiver request was submitted in good faith when the developer seeking the waiver failed to take this basic, common-sense step to protect its rights.
But I also place blame on PJM. Regardless of whether it is required to do so, PJM could have determined whether the submissions were complete in advance of the deadline. Both developers made their submissions with time to spare; not at the last minute. It would not have been difficult for PJM to have checked to see if the necessary deposit had been made (in this case) or if electronic signatures had been added to the system impact study agreement (in Docket No. ER21-1556-000).
Even more frustrating is what PJM did after it notified the developers that their submissions were incomplete and therefore untimely. PJM has declined to take any position on the effect of granting these waivers on the queues it is responsible for managing. Instead, PJM has taken a complete hands-off approach—it told the developers that it was up to the Commission to decide whether to grant a waiver, and PJM has neither intervened in these cases nor authorized the developers to represent PJM’s views on the waivers to the Commission.
I understand why PJM might not want to take a position, given the competing concerns of ensuring effective queue management on the one hand and wanting to spare the developers from the drastic consequences of an administrative oversight on the other. Any choice PJM makes will doubtless be controversial. But the Commission should not allow PJM and other transmission providers to avoid taking a position on the effect that requested waivers will have on other developers and on their ability to manage the interconnection queues. Although we rightfully bear the ultimate responsibility for deciding whether a waiver should be granted, the effect of a proposed waiver is information we need in order to make an informed decision. I believe that were we to require transmission providers to offer their assessment of the effects of a requested waiver, it would likely reduce the number of queue-deadline waivers submitted to the Commission because transmission providers would become more proactive in notifying developers of problems with their submissions and thereby reducing the number of inadvertent violations of tariff deadlines.
Finally, I oppose granting these retroactive waivers, as I oppose all retroactive waiver requests that fall outside recognized exceptions to the filed-rate doctrine.[3] However, putting the filed-rate doctrine aside, I additionally oppose granting the waiver requests at issue here for the reasons I explain above.
For these reasons, I respectfully dissent.
[1] See TGE Pennsylvania 202, LLC, 175 FERC ¶ 61,080 (2021).
[2] Or, perhaps, one might expect the exact opposite—a casual disregard for tariff-mandated deadlines—given the moral hazard that inevitably attends the Commission’s indiscriminate liberality in granting waiver requests.
[3] See Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Danly, Comm’r, dissenting at P 5).