Commissioner James Danly Statement
November 05, 2020
Docket No. ER20-2861-000
The Commission’s order issued in this docket grants a request for a retroactive waiver without ever acknowledging the waiver’s retroactivity or discussing our power to grant such a waiver.[1] As I explained in detail in my dissent in Sunflower, the grant of such a waiver exceeds our legal authority under two legal doctrines: the filed rate doctrine and the rule against retroactive ratemaking.[2] I dissent here for the same reasons.
Southern California Edison Company (SoCal Edison) requests waiver of the deadline in the formula rate in its Transmission Owner Tariff to allow use of an updated sales forecast in its upcoming 2021 annual update filing. We are asked to waive Schedule 32, Note 1 of its formula rate spreadsheet to permit SoCal Edison to employ a sales forecast completed after the April 15, 2020 deadline required by the formula rate. The revised forecast accounts for load changes arising out of the global COVID-19 pandemic.
It is a sympathetic request. However, the Commission has no authority whatever to grant it. As I set forth in my dissent in Sunflower, the Commission’s ability to waive the filed rate is limited by statute and precedent, and none of the limited circumstances permitting such waivers are met here.
There are ways, of course, consistent with the Commission’s legal authority, for the Commission and the industry to mitigate the harsh results that might result from the application of the filed rate doctrine and rule against retroactive ratemaking. SoCal Edison could file for approval to include provisions in the Transmission Owner Tariff that permit later updates of load forecasts or provide the details for when the April 15 deadline will be waived. In my view, the utilities are in a better position than the Commission to determine which of their own tariff provisions are amenable to waiver. Utilities should proactively review their tariffs and file proposed revisions to provide the flexibility they now routinely seek after-the-fact.
For these reasons, I respectfully dissent.