Commissioner James Danly Statement
August 24, 2021
Docket No. ER21-2400-000
I dissent in part from today’s order to the extent that it grants Long Island Power Authority and Long Island Solar Farm (collectively, Movants) a retroactive waiver (from June 8, 2021 to the date of the Movants’ filing) of section 17.1.2.1.2 of the New York Independent System Operator, Inc.’s (NYISO) Market Administration and Control Area Services Tariff (Services Tariff). The Commission has no statutory authority to grant retroactive waivers, as I have repeatedly explained.[1] Although the provision at issue is a non-rate tariff term or condition, we are obligated under the filed rate doctrine and rule against retroactive ratemaking to deny such relief.[2]
Movants explain that technological limitations on the control equipment prevent them from complying with the terms of the tariff and they made a good faith effort to comply with the tariff well in advance of the effective date.[3] I have no doubt that this is true and in cases such as this, the denial of a waiver request, even in part, appears harsh. But it is what the law requires. The Commission cannot grant unlawful—but seemingly equitable—retroactive waivers on a case-by-case basis, which—as I have also said before—ultimately depend upon how sympathetic the Commission believes the applicant’s situation to be.
Movants also are not entitled to relief under Federal Power Act section 309. Section 309 grants the Commission authority “to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter.”[4] However,
[i]t bears repeating . . . that the Commission does not have the authority to ignore the law to achieve an equitable result. Had we found that . . . actions violated the filed rate doctrine or the rule against retroactive ratemaking, we would not then invoke the Commission’s assessment of the equities to overcome those violations.[5]
There are two possible solutions to the problem presented in this case. The best would be for the tariff to include a provision that allows for waiver of these requirements under specified circumstances.[6] In the absence of such a tariff provision, the Commission should have denied the waiver request (or at least that part of the waiver request that would have had retroactive effect) and then relied upon its authority under Federal Power Act section 309 to find that no action should be taken against Movants for their failure to comply with the Services Tariff.[7]
With respect to the Movants’ request for prospective relief, I concur, in part, in today’s order to the extent it grants waiver of the Services Tariff provision at issue from the date Movants submitted their filing until the earlier of December 1, 2022 or such other date as Movants are able to resolve their technical problems such that the waiver is no longer needed.[8]
For these reasons, I respectfully dissent in part and concur in part.
[1] See, e.g., Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Danly, Comm’r, dissenting at P 5).
[2] See id. (Danly, Comm’r, dissenting at P 6).
[3] See Movants July 12, 2021 Waiver Request at 3-4.
[4] 16 U.S.C. § 825h; accord 15 U.S.C. § 717o.
[5] Pub. Utils. Comm’n of Cal. v. FERC, 988 F.2d 154, 168 n.12 (D.C. Cir. 1993) (citation omitted) (emphasis added); see also AT&T v. Cent. Office Tel., Inc., 524 U.S. 214, 223 (1998) (explaining that the filed rate doctrine applies regardless of any motive “to benefit or harm a particular customer”); Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 132 (1990) (“[S]trict adherence to the filed rate has never been justified on the ground that the carrier is equitably entitled to that rate, but rather that such adherence, despite its harsh consequences in some cases, is necessary to enforcement of the Act.”).
[6] See, e.g., Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (Danly, Comm’r, dissenting at P 17 & nn.38-39).
[7] See Verso Corp. v. FERC, 898 F.3d 1, 10 (D.C. Cir. 2018); Columbia Gas Transmission Corp. v. FERC, 750 F.2d 105, 109 (D.C. Cir. 1984) (“The principle fairly drawn from prior cases is that the Commission has broad authority to fashion remedies so as to do equity consistent with the public interest.”).
[8] See Movants July 12, 2021 Waiver Request at 3 & n.3 (“Should the technical issues be resolved before the end of the waiver period, Movants would notify the Commission and NYISO that the waiver is no longer needed and Movants would bring the facility into compliance with the tariff.”).