Docket No. ER26-3186-000
I dissent from today’s order denying MS Solar 4, LLC’s (Covington) request to extend its commercial operation deadline to September 30, 2028. The order stops development of a dispatchable generation project – 80 MW of battery energy storage paired with a 96 MW of solar generation – based on an application of the Commission’s “good faith” waiver standard that I do not believe is adequately supported in the record.
To date, Covington has spent roughly $60 million in development costs and appears to be close to clearing its remaining development hurdles to be able to reach commercial operation within the next two years.11 Without the requested waiver, this project will be unable to proceed, and its considerable capital investment will presumably be wasted.
Covington’s request is opposed by Cooperative Energy, the transmission owner to which Covington would interconnect. By contrast, MISO, the regional transmission operator, supports granting the requested waiver.2 Cooperative Energy raises two broad arguments against granting the waiver: first, that Covington has been in the interconnection queue for too long; and second, that Covington has not worked diligently to achieve commercial operation.
On the first point, granting Covington’s second waiver request would add two more years to the time Covington has been in the interconnection queue - painfully long, but not out of line with other projects that have received two waiver extensions.3
Cooperative Energy’s second argument boils down to a critique of the timing and substance of Covington’s development decisions, and Cooperative Energy’s view that many of the delays were avoidable or should have been foreseen by Covington.4
The Commission’s order rests on the “good faith” prong of our waiver test, holding that “Covington has not demonstrated that it acted in good faith,” and agreeing with Cooperative Energy that “Covington should have incorporated these risks into the Project’s schedule and budgeted time for post-clearing redesign or, alternatively, should have been aware of the issue at the time of its initial waiver request in 2024.”5
In my view, the “should haves” are questions that are difficult to answer with the record we have in front of us. The Commission typically finds an absence of good faith only where the applicant “fails to describe any diligent (yet unsuccessful) efforts . . . toward developing”6 a project, or fails to take “corrective action steps . . . when it realized it could not timely meet its obligations.”7 Here, I believe the record adequately supports that Covington met the “good faith” burden, based on its continued development efforts, the milestones it achieved and the capital it invested since the initial waiver was granted.
We undoubtedly have discretion to grant or deny waiver requests like these, based on our authority and our precedent. However, with the facts in the record I am uncomfortable exercising that discretion to terminate a project during this time of needed new generation infrastructure.
For these reasons, I respectfully dissent.
- 1Based on the record, cleared hurdles include site purchase, securing of permits, completion of engineering, securing purchase of step-up transformer with down payment, purchasing long lead items, solar panels delivered or secured, land clearing and grading substantially complete, construction ready to commence this month (i.e. September 2026), NRIS network upgrades fully paid, switching station complete, and offtake agreement ready to be executed.
- 2MISO Motion for Leave to Answer and Answer at pp. 3-4.
- 3See, e.g., Vacherie Solar Energy Ctr., LLC, 196 FERC ¶ 61,225 (2026) (totaling 5 years and 5 months); Mustang Mile Solar Energy LLC, 195 FERC ¶ 61,094 (2026) (7 years); Ratts 2 Solar LLC, 193 FERC ¶ 61,206 (2025) (5 years and 11 months); Shenandoah Hills Wind Project, 186 FERC ¶ 61,070 (2024) ((6 years); and Front Range Midway Solar Project, LLC 183 FERC ¶ 61,060 (2023) (9 years and 6 months).
- 4For example, focusing on Covington’s land preparation activities, Cooperative Energy opines that “[a] prudent developer would have either conducted appropriate due diligence before entering the GIA or incorporated these risks into its project schedule. Relying on desktop studies for a heavily forested site and then claiming surprise at adverse topography demonstrates inadequate due diligence, not . . . ’unforeseen’ conditions.” Cooperative Energy Protest at p. 8.
- 5Order at P 55 (emphasis supplied)
- 6Oxbow Solar, LLC (ER25-1274), 192 FERC ¶ 61,204 (2025) at P 21
- 7Urbana Solar LLC (ER22-848), 179 FERC ¶ 61,015 (2022) at P 34