Commissioner James Danly Statement
October 16, 2020
Docket No. ER20-1812-000
The Commission’s order issued today in this docket addresses a request for a retroactive waiver.[1] Nine other orders issued at the Commission’s October Public Meeting address similar waiver requests.[2] In addition, the Commission issued two such orders on September 30, 2020, shortly before the October Public Meeting.[3] In total, that is twelve orders issued in less than three weeks addressing retroactive waiver requests. I have several concerns about these orders, which I discussed briefly in my dissents to the Montana-Dakota and Lightsource orders that were issued on September 30 and again in greater detail in my dissent to the Sunflower order that is being issued today.
I dissent from the Commission’s order in this proceeding because, although in this issuance we specifically address and apply the related doctrines prohibiting retroactive waivers, the filed rate doctrine and the rule against retroactive ratemaking, the Commission misapplies the contract exception that has been recognized in case law.[4] While the order states that the agreement for a retroactive rate reduction is “essentially the result of contractual arrangements between parties,”[5] there is, in fact, no contract. The movants have not filed any instrument with the Commission memorializing their agreement and the cases cited do not contemplate allowing retroactive waivers based on any “arrangements” other than contracts.
Moreover, the Commission fails to explain why we address these doctrines in our holding in this case but not in ten of the other eleven retroactive waiver orders issued in the last three weeks.[6] Failing to explain why we apply these doctrines here but not in our other orders results in the same inconsistent decision making and lack of guidance that I discuss in more detail in my dissent in the Sunflower order.[7]
It may be that the Commission can provide adequate reasoning to arrive at an explanation for why the filed rate doctrine and rule against retroactive ratemaking have exceptions for voluntary rate decreases. No attempt was made to do so here. Instead, the Commission shoehorns acceptance of this waiver request into precedent establishing an exception that cannot apply to the facts at hand.
For these reasons, I respectfully dissent.
[1] Pub. Serv. Elec. & Gas Co., 173 FERC ¶ 61,056 (2020) (PSEG).
[2] See Pac. Gas & Elec. Co., 173 FERC ¶ 61,051 (2020) (PG&E); Borrego Solar Sys. Inc., 173 FERC ¶ 61,052 (2020); Mariposa Energy, LLC, 173 FERC ¶ 61,053 (2020); Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Sunflower); Midcontinent Indep. Sys. Operator, Inc., 173 FERC ¶ 61,055 (2020); Upstream Wind Energy LLC, 173 FERC ¶ 61,057 (2020); Vineyard Wind LLC, 173 FERC ¶ 61,058 (2020); Columbia Gas Transmission, LLC, 173 FERC ¶ 61,064 (2020); S. Star Cent. Gas Pipeline, Inc., 173 FERC ¶ 61,066 (2020).
[3] See Montana-Dakota Utils. Co., 172 FERC ¶ 61,278 (2020) (Montana-Dakota); Lightsource Renewable Energy Dev., LLC, 172 FERC ¶ 61,294 (2020) (Lightsource).
[4] See Proposed Policy Statement on Waiver of Tariff Requirements and Petitions or Complaints for Remedial Relief, 171 FERC ¶ 61,156, at PP 3, 5 (2020).
[5] PSEG, 173 FERC ¶ 61,056 at P 9 (emphasis added); see id. P 22 (seemingly adopting movants’ description of the “agreement”).
[6] We also apply the filed rate doctrine and rule against retroactive ratemaking in our PG&E order issued today.
[7] See Sunflower, 173 FERC ¶ 61,054 (Danly, Comm’r, dissenting).