Commissioner James Danly Statement
August 13, 2021
Docket No. ER21-2103-000
I dissent from today’s order granting Caney River Wind Project, LLC (Caney River) a waiver of the one-year rollover notice requirement in section 2.2 of the Southwest Power Pool, Inc. (SPP) Open Access Transmission Tariff (Tariff) to allow Caney River to roll over its existing long-term firm transmission reservation. This waiver order grants a request for retroactive relief that the Commission has no statutory authority to grant, as I have explained on numerous occasions.[1] It is irrelevant that the provision at issue is a non-rate tariff term or condition—this distinction does not change our obligations under the filed rate doctrine or rule against retroactive ratemaking.[2]
Caney River explains its failure to provide timely notice was due to an administrative error, caused in significant part by continuing COVID-19 work conditions.[3] To deny a waiver request in this case does appear harsh, but it is what the law requires. To prevent harsh results, a solution is available: SPP can amend its Tariff to allow for waiver requests like this one to be submitted after the applicable deadline, which would provide actual notice of potential retroactive changes to the filed rate. The solution is not to grant unlawful—but seemingly equitable—retroactive waivers on a case-by-case basis, which—as I have also said before—ultimately depend upon how sympathetic the Commission believes the applicant’s situation to be.
Additionally, relief under Federal Power Act section 309 is also unavailable here. Section 309 grants the Commission authority “to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter.”[4] However,
[i]t bears repeating . . . that the Commission does not have the authority to ignore the law to achieve an equitable result. Had we found that . . . actions violated the filed rate doctrine or the rule against retroactive ratemaking, we would not then invoke the Commission’s assessment of the equities to overcome those violations.[5]
For these reasons, I respectfully dissent.
[1] See, e.g., Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Danly, Comm’r, dissenting at P 5).
[2] See id. (Danly, Comm’r, dissenting at P 6).
[3] Caney River Wind Project, LLC June 9, 2021 Transmittal at 4.
[4] 16 U.S.C. § 825h; accord 15 U.S.C. § 717o.
[5] Pub. Utils. Comm’n of Cal. v. FERC, 988 F.2d 154, 168 n.12 (D.C. Cir. 1993) (citation omitted) (emphasis added); see also AT&T v. Cent. Office Tel., Inc., 524 U.S. 214, 223 (1998) (explaining that the filed rate doctrine applies regardless of any motive “to benefit or harm a particular customer”); Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 132 (1990) (“[S]trict adherence to the filed rate has never been justified on the ground that the carrier is equitably entitled to that rate, but rather that such adherence, despite its harsh consequences in some cases, is necessary to enforcement of the Act.”).