Commissioner James Danly Statement
September 30, 2020
Docket No. ER20-2806-000
I dissent from the Commission’s order granting Lightsource Renewable Energy Development, LLC’s (Lightsource) request for a waiver of a procedural deadline in section 204.3 of the PJM Interconnection, L.L.C. (PJM) Open Access Transmission Tariff (Tariff) to allow Lightsource’s proposed 130 MW solar generation facility (Project) to remain in PJM’s interconnection queue with its currently assigned queue position. In granting the requested waiver, the Commission exceeds its legal authority and fails to acknowledge that the waiver is retroactive.
Lightsource concedes that it missed the August 20, 2020 deadline for satisfying the requirements in section 204.3 of the PJM Tariff, which include providing an executed system impact study agreement (SIS) and study deposits for the Project to PJM. Lightsource’s waiver request was filed on September 2, 2020, after this deadline.
I recognize that Lightsource claims that it failed to meet the tariff deadline because the COVID-19 pandemic has exponentially increased email traffic with the need to manage the workplace from home and that the Lightsource Chief Operating Officer, who received the PJM communications, mistakenly believed that the deadline for the Project was August 31, 2020. Nevertheless, this is clearly a request for a retroactive waiver. As I explained in my dissent in Montana-Dakota Utilities Co., the Commission is legally barred by the filed rate doctrine and the rule against retroactive ratemaking from granting this waiver, regardless of the equities at stake.[1]
Further, even if a waiver were not legally barred, the Commission failed to properly apply the no-harm-to-third-parties factor of our waiver analysis. According to the Commission, “[t]he interconnection customers in other queue positions and any third-party interests will be in the same position as they would have been had the Project moved forward to the SIS phase as expected.”[2] This assumes away the harm resulting from the waiver and cannot constitute reasoned decisionmaking. It is true that third parties would be no worse off than if Lightsource had not missed its deadline and did not need the waiver. But Lightsource did miss its deadline, and it does need the waiver. As a result, every party behind Lightsource’s restored queue position will suffer harm.
For these reasons, I respectfully dissent.
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James P. Danly
Commissioner
[1] See 172 FERC ¶ 61,278 (2020) (Danly, Comm’r, dissenting). Even if the requested waiver meets the requirements of the Commission’s four-factor test, that does not resolve the legal infirmity of the requested waiver. Neither of the two exceptions (i.e., notice that the tariff provision could be waived retroactively or agreement embodied in a private contract where the parties have agreed the provision to retroactive effect) that allow us to grant retroactive waivers are applicable here. See Consol. Edison Co. of N.Y., Inc. v. FERC, 347 F.3d 964, 969 (D.C. Cir. 2003); Nat. Gas Clearinghouse v. FERC, 965 F.2d 1066, 1075 (D.C. Cir. 1992); Columbia Gas Transmission Corp. v. FERC, 895 F.2d 791, 795-97 (D.C. Cir. 1990). As the D.C. Circuit held, “[t]he filed rate doctrine and the rule against retroactive ratemaking leave the Commission no discretion to waive the operation of a filed rate or to retroactively change or adjust a rate for good cause or for any other equitable considerations.” Old Dominion Elec. Coop. v. FERC, 892 F.3d 1223, 1230 (D.C. Cir. 2018) (citing Columbia Gas Transmission Corp. v. FERC., 895 F.2d 791, 794-97 (D.C. Cir. 1990)) (emphasis added).
[2] Lightsource Renewable Energy Development, LLC, 172 FERC ¶ 61,294, at P 14 (2020).