Commissioner James Danly Statement
April 7, 2022
Docket No. ER22-1433-000
I dissent from this order granting an unlawful retroactive waiver of a long-expired notice deadline in a filed rate.[1] I fully explained my rationale in a nearly identical recent waiver case involving the same PJM notice provision to exercise rollover rights and will not repeat it here.[2]
I reiterate one point. The majority’s view is that a tariff notice deadline can be “prospective[ly]” waived after it has expired so long as the act subject to the notice has not yet occurred.[3] If correct, this reasoning would mean that there is no such thing as an enforceable notice provision in any rate on file at the Commission. Notice must occur before the act subject to the notice. The point of notice is to alert relevant entities—in advance—as to what action is intended. It is not a novel concept.
PJM’s tariff requires one year’s notice to exercise rollover rights. PJM could require less time, but it chose (and we approved) one year. The Borough of Chambersburg’s notice was due April 1, 2021. I should not have to explain how time works, but by waiving an April 1, 2021 deadline that was not sought until March 22, 2022, the Commission is retroactively writing a mandatory notice deadline out of the PJM tariff. The Borough, PJM, other potential transmission customers, and the world all learn on April 7, 2022, that the April 1, 2021 tariff deadline was a nullity and that notice in the PJM tariff is fact, fiction, or aspiration depending upon the whims of the Federal Energy Regulatory Commission.
For these reasons, I respectfully dissent.