Commissioner Richard Glick

July 29, 2020 

Docket No. ER20-1926-000

 

I concur, in part and dissent, in part from today’s order.  The Commission, with one hand, is accepting MISO’s revisions to the MISO Bylaws and Transmission Owners Agreement to create a new stakeholder sector for MISO’s Advisory Committee and, with the other hand, is suggesting that the revisions are, in truth, not just and reasonable or unduly discriminatory and thus should be modified.  The Commission even goes so far as to suggest that, if MISO does not make a subsequent filing pursuant to section 205 of the Federal Power Act[1] with further revisions to address its concerns, then the Commission may institute its own proceeding pursuant to Federal Power Act section 206.[2]  

The Federal Power Act requires the Commission to accept a proposed tariff modification, only so long as it determines the modification is just and reasonable and not unduly discriminatory or preferential.[3]  On the face of it, all four Commissioners appear to agree that the MISO revisions are just and reasonable and not unduly discriminatory or preferential.  I certainly do.  MISO’s revisions ensure that America’s Power and Lignite Energy Council have an opportunity to participate in the stakeholder process.  But after concluding that MISO’s revisions meet the Federal Power Act’s standards, the majority’s Order takes an Orwellian turn, repeatedly suggesting that the MISO revisions need further modification to, in fact, constitute a not unduly discriminatory result.

The Federal Power Act does not permit us to have a foot in each camp.  Either something is just and reasonable and not unduly discriminatory or it is not.  I cannot join an order that so blatantly ignores this irrefutable law of nature.  If my colleagues believe MISO’s proposed revisions do not meet section 205’s requirements they must reject the proposal.  After all, it goes without saying that the Commission may initiate a proceeding pursuant to section 206 of the Federal Power Act if my colleagues believe further revisions are required.  What they cannot do is have it both ways. 

For these reasons, I respectfully concur, in part, and dissent, in part.

 

[1] 16 U.S.C. § 824d (2018).

[2] Id. § 824e.

[3] Id. § 824d.

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