Commissioner James Danly Statement
August 6, 2021
Docket No. ER21-2395-000
I dissent from today’s order granting Viridity Energy Solutions, Inc. (Viridity), a Responsible Interface Party, as defined in the New York Independent System Operator, Inc.’s (NYISO) Market Administration and Control Area Services Tariff (Services Tariff), a waiver of a tariff-imposed deadline to submit Special Case Resource performance data to NYISO. While this case presents particularly sympathetic facts, especially in light of Viridity’s multiple attempts to provide data in advance of the deadline, Viridity’s requested waiver of the applicable deadline is a request for retroactive relief that the Commission has no statutory authority to grant, as I have explained on numerous occasions.[1]
This result seems to be harsh in this case, but it is what the law requires. To prevent harsh results, the solution is to amend the Services Tariff to allow for waiver requests like this one that are submitted after the applicable deadline, which would provide actual notice of potential retroactive changes to the filed rate. The solution is not to grant unlawful—but seemingly equitable—retroactive waivers on a case-by-case basis, which ultimately depend upon how sympathetic the Commission believes the applicant’s situation to be.
For these reasons, I respectfully dissent.
[1] See, e.g., Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Danly, Comm’r, dissenting at P 5).