Commissioner James Danly Statement
August 18, 2023
Docket No. EC23-57-000
DANLY, Commissioner, dissenting:
I dissent from today’s issuance.[1] As I have previously stated,[2] the Commission had no authority to require System Energy Resources, Inc. (SERI) to seek approval of its Lease Renewal under section 203 of the Federal Power Act (FPA).[3] The Lease Renewal was a contemplated extension of the Original Sale-Leaseback Agreement and is reflected in the Unit Power Sales Agreement (UPSA) that the Commission approved.[4] Requiring SERI to seek approval of the Lease Renewal violated both the FPA and Mobile-Sierra.[5] The Commission need do nothing now other than dismiss SERI’s application.
For these reasons, I respectfully dissent.
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James P. Danly
Commissioner
[1] Sys. Energy Res., Inc., 184 FERC ¶ 61,096 (2023).
[2] La. Pub. Serv. Comm’n v. Sys. Energy Res., Inc., 181 FERC ¶ 61,243 (2022) (Danly, Comm’r, dissenting).
[3] 16 U.S.C. § 824b(a)(1)(D).
[4] La. Pub. Serv. Comm’n v. Sys. Energy Res., Inc., 181 FERC ¶ 61,243 (Danly, Comm’r, dissenting at PP 8-10); see Sys. Energy Res., Inc., 163 FERC ¶ 61,164 (2018) (related to the 2018 version of the UPSA); Sys. Energy Res., Inc., Letter Order Accepting Settlement in Docket Nos. ER89-678, EL90-16 and EL90-45 (Sep. 16, 1991). The UPSA, a FERC-jurisdictional wholesale rate schedule, originally was filed with the Commission in Docket No. ER82-616-000. See System Energy Resources, Inc., et al., Motion to Dismiss and Answer, Docket No. EL18-152-000, at 7 (June 28, 2018). Consistent with FERC’s findings in an audit conducted in Docket No. FA89-28-000, SERI has accounted for the Sale-Leaseback transaction as a financing transaction. Id. at 10. See also La. Pub. Serv. Comm’n v. Entergy Servs., Inc., Opinion No. 561, 163 FERC ¶ 61,116, at P 17 (2018) (“Lastly, we note that no parties excepted to the Presiding Judge’s ruling on whether Entergy Louisiana’s accounting for the leased portion of the Waterford 3 plant should be changed to be the same as the accounting for the owned portion of the plant. Accordingly, we summarily affirm the Presiding Judge on this issue.”); La. Pub. Serv. Comm’n v. Entergy Corp., Opinion No. 560, 162 FERC ¶ 61,234, at P 57 (2018) (“We affirm the Presiding Judge’s findings that . . . the Waterford 3 Sale/Leaseback is a financing transaction . . . .”); La. Pub. Serv. Comm’n v. Entergy Corp., 156 FERC ¶ 63,017, at PP 242-45 (2016) (Initial Decision finding that Entergy Louisiana LLC should record the cost on the sale-leaseback interest in Account 101).
[5] La. Pub. Serv. Comm’n v. Sys. Energy Res., Inc., 181 FERC ¶ 61,243 (Danly, Comm’r, dissenting at P 11).