Commissioner James Danly Statement
May 30, 2023
Docket No. ER23-1223-000
I dissent in part from today’s issuance over the issue of whether a particular date must be included in Midcontinent Independent System Operator, Inc.’s (MISO) Open Access Transmission, Energy and Operating Reserve Markets Tariff (Tariff) rather than its Business Practice Manual. I acknowledge that certain dates are amenable to inclusion in business practice manuals. However, given that there is so much at stake in the inputs to the Planning Resource Auction, the date of the annual establishment of the system-wide Unforced Capacity (UCAP)/Intermediate Seasonal Accredited Capacity (ISAC) ratio (Ratio) for each Planning Year is fundamental to the mechanics of the market. This Ratio ultimately informs Load Serving Entities and resources of their accredited capacity in advance of the Planning Resource Auction. While there could be debate on this,[1] I believe that the rule of reason[2] compels us to require the date’s inclusion in the Tariff rather than the Business Practice Manual.
For these reasons, I respectfully dissent in part.
[1] Cf. Sw. Power Pool, Inc., 182 FERC ¶ 61,100 (2023) (reversing prior order and rejecting compliance filing finding rule of reason required certain details to be in the tariff) with id. (Danly, Comm’r, dissenting) (dissenting on substantive grounds because the order fails to address the merits at all and also on procedural grounds).
[2] Energy Storage Ass’n v. PJM Interconnection, L.L.C., 162 FERC ¶ 61,296, at P 103 (2018) (describing the rule of reason); see also City of Cleveland v. FERC, 773 F.2d 1368, 1376-77 (D.C. Cir. 1985) (affirming the Commission’s decision not to include term in tariff and explaining that “only those practices that affect rates and service significantly, that are realistically susceptible of specification, and that are not so generally understood in any contractual arrangement as to render recitation superfluous” must be included in a tariff) (emphasis in original).