Commissioner James Danly Statement
April 25, 2023
Docket No. ER23-1108-000
I dissent from today’s issuance[1] granting Front Range-Midway Solar Project, LLC (Front Range) waivers for: (1) section 4.4.5 of the Large Generator Interconnection Procedures (LGIP) in Public Service Company of Colorado’s (PSCo) Open Access Transmission Tariff (OATT); and (2) Articles 2.3.1 and 5.16 of the amended and restated Large Generator Interconnection Agreement (LGIA) and Surplus Large Generator Interconnection Agreement (Surplus LGIA) between Front Range and PSCo, the effect of which is to allow a 21-month extension of the Project’s commercial operation deadline, from March 31, 2024 to December 31, 2025. While I agree that the waiver request is prospective, I disagree with the majority’s findings that Front Range has met the Commission’s four-factor test for granting a waiver.[2] I would deny the waiver on the grounds that Front Range’s waiver request is not limited scope, does not address a concrete problem and does not have undesirable consequences, such as harming third parties.
First, Front Range claims its waiver request is limited in scope because it is limited to tariff and agreement provisions necessary to allow an extension of the commercial operation deadline and to a 21-month finite period of time.[3] It can hardly be said the waiver simply applies to a single deadline. If granted, the waiver will ultimately result in a commercial operation date nearly a decade after Front Range’s initial commercial operation date of July 1, 2016. While implementation of the Uyghur Forced Labor Prevention Act (UFLPA)[4] in June 2022 may present new circumstances not at issue when the Commission granted Front Range a prior waiver request,[5] application of the UFLPA is an industry-wide issue and does not support a finding that granting a waiver here is limited in scope.
Second, Front Range argues that its waiver request addresses a concrete problem of the UFLPA’s implementation that has led to detention of certain of its solar photovoltaic (PV) modules at the U.S. border that prevent it from meeting its current March 31, 2024 commercial operation date.[6] According to Front Range, there is significant uncertainty as to whether and when these modules will be released and that granting waiver would provide Front Range the opportunity to secure the necessary alternative PV modules, meet the new commercial operation deadline, and avoid losing the investment it has made in transmission system upgrades needed to interconnect the Project.[7] However, the fact that Front Range has faced supply chain disruptions due to the implementation of the UFLPA is a situation that many other projects have faced and will continue to face. By Front Range’s own admission, these challenges are an industry-wide problem. According to a 2022 survey by the Solar Energy Industries Association (SEIA) cited by Front Range, over 80% of respondents indicated that PV modules they had ordered had been delayed or cancelled and reported that cancellations and delays had been increasing over time.[8] Front Range also contends that an investigation launched by the U.S. Department of Commerce has affected over 300 projects involving about 51,000 megawatts nationally.[9] Even so, Front Range has not explained any of the efforts it may have undertaken to identify or purchase alternative PV modules. Front Range has also not addressed whether it has secured a new off-taker after termination of the power purchase agreement with PSCo due to Front Range’s failure to meet project development milestones. Nor does Front Range state that it will construct the facility without an off-taker. For these reasons, Front Range fails to demonstrate that the waiver actually addresses a concrete problem.
Finally, Front Range claims waiver will not result in undesirable consequences, including harm to third parties, because it has fully funded the upgrades identified by PSCo to provide network resource interconnection service, that such upgrades have been constructed, and that there has been no impact on other customers in the PSCo interconnection queue.[10] I disagree. Granting the waiver here would absolve Front Range of the same risks that we expect every other project sponsor to bear. We cannot establish the industry-wide certainty that is critical for project sponsors to make rational decisions and efficiently allocate capital if we continuously and thoughtlessly grant waivers of the very tariff terms designed (and approved by the Commission) to discipline the process by which generators seek interconnection. By granting these waivers we, the Commission, are failing in our duties and affirmatively making things worse for everyone.
For these reasons, I respectfully dissent.
[1] Front Range-Midway Solar Project, LLC, 183 FERC ¶ 61,060 (2023).
[2] The Commission has granted waiver of tariff provisions where: (1) the applicant acted in good faith; (2) the waiver is of limited scope; (3) the waiver addresses a concrete problem; and (4) the waiver does not have undesirable consequences, such as harming third parties. See, e.g., Citizens Sunrise Transmission LLC, 171 FERC ¶ 61,106, at P 10 (2020); Midcontinent Indep. Sys. Operator, Inc., 154 FERC ¶ 61,059, at P 13 (2016).
[3] Waiver Request at 15-16.
[4] Front Range also explains that the UFLPA provides that all goods coming from the Xinjiang Uyghur Autonomous Region are presumed to come from forced labor and will be banned from entry in the United States until: (1) an importer of such goods can demonstrate to the Commissioner of the U.S. Customs and Border Protection, by clear and convincing evidence, that such goods were not in any way produced by forced labor; and (2) that agency can report to Congress that it has made such a determination. Waiver Request at 11-12.
[5] Front Range-Midway Solar Project, LLC, 179 FERC ¶ 61,092 (2022).
[6] Waiver Request at 16-17.
[7] Id.
[8] Front Range March 10 Answer at 7-8 (citing SEIA presentation attached as App. A).
[9] Id.
[10] Waiver Request at 17-18.