Commissioner James Danly Statement
April 18, 2023
Docket No. ER23-155-001
I dissent in part from today’s issuance.[1] I disagree with the majority’s failure to recognize and address the fact that, under our own fairly recent precedent, system protection facilities may be network upgrades in the Southwest Power Pool, Inc. (SPP) region.[2] We previously found “that the definition of ‘System Protection Facilities’ contained in SPP’s pro forma [Generator Interconnection Agreement (GIA)], which incorporates the Commission’s existing pro forma [Large Generator Interconnection Agreement (LGIA)] definition with minimal modification, is sufficiently broad to include both interconnection facilities and network upgrades, as certain system protection facilities located on the transmission system may be appropriately classified as network upgrades due to their location.”[3] The Commission expressly “decline[d ] . . . to prohibit the characterization of system protection facilities as network upgrades because some of these facilities may be appropriately classified as network upgrades.”[4] The Commission further “decline[d] . . . to distinguish system protection facilities from network upgrades . . . .”[5] Thus, under SPP’s GIA, system protection facilities may be network upgrades, and, if so, they are eligible for Transmission Owner Initial Funding. The failure of the majority to recognize and address this precedent is an obvious legal failure.[6]
For these reasons, I respectfully dissent in part.
[1] Sw. Power Pool, Inc., 183 FERC ¶ 61,025 (2023).
[2] Id. P 34.
[3] Sw. Power Pool, Inc., 170 FERC ¶ 61,042, at P 71 (2020).
[4] Id.
[5] Id.
[6] It is beyond cavil that an agency must explain its departure from prior precedent and “may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position.”) (citation omitted).