I’m glad to vote with the majority on most of this order—granting the Abandoned Plant and Construction Work in Progress incentives with respect to the first three project components for the Minnesota facilities the Minnesota Commission has already approved, and conditionally granting for the North Dakota facilities if and when the North Dakota Commission does the same.[1] I also agree that the right lens for our analysis is the rebuttable presumption for projects that receive approval from an appropriate state commission or state siting authority.[2] The majority is right that, on this record, the regional planning-based rebuttable presumption does not apply.[3] Nor has ALLETE made a sufficient, evidence-based showing that the incentives are justified without presumptions.[4]
I disagree, however, with the idea that the last project component—the HVDC transmission line upgrade—qualifies for the state approval rebuttable presumption where everyone agrees that neither Minnesota nor North Dakota will ever review it.[5] Ordinarily, that reality would lead the Commission to conclude that the state approval rebuttable presumption cannot apply.[6] The majority appreciates this barrier, and so grounds its decision in a new idea that the HVDC transmission line upgrade is “integrally related” to the other three project components.[7] In other words, state approval for some components can approximate state approval for a different component. I would not expand our transmission incentives precedent in this way.
To be sure, I sympathize with the appeal in finding that a close connection between project components could unlock the benefits of the rebuttable presumption in circumstances that would not otherwise qualify. But that’s not a standard set forth in our Order No. 679, which requires that a project “has received construction approval from an appropriate state commission or state siting authority.”[8] The Order does not except individual project components “integrally related” to others. Nor does the majority cite judicial or Commission precedent for this novel approach. I don’t know of any either.
Building on our policy ad hoc troubles me because in this incentives context we have both a statute telling us the criteria for granting transmission incentives[9] and a final rule and policy statement supported by notice-and-comment processes to implement it.[10] Principles of fairness and reasoned decision-making require us to follow those criteria, or else make changes using “the same procedures” we “used to issue the rule in the first instance.”[11] Adding new criteria on the spot also gives too little guidance for future applicants to trace our rationale and clouds transparency into the cases when we might bring out the “integrally related” standard again. Especially when our precedent has a ready solution for cases where States don’t evaluate all project components—the applicant can make a robust independent showing that the component increases reliability and reduces congestion—I’m not persuaded to break new ground.
To be clear, appropriate transmission incentives are important. Unless and until Congress changes FPA section 219, our statutory duty is reason enough for that conclusion. Sound transmission build-out is also an important part of the solution to meeting significant increases in expected demand and the system strain that comes with it. But transmission incentives are, at their core, favorable rate treatment for transmission developers that come with costs to ratepayers. Consistent criteria developed through our publicly accountable processes help ensure that consumers are, in fact, getting congestion-reducing, reliability-enhancing projects in exchange for their dollars.
So I join in the decision to grant transmission incentives to the HDVC Project’s first three components. But I would have stopped there, and instead denied the application with respect to the HVDC transmission line upgrade.
For these reasons, I respectfully concur in part and dissent in part.
[1] See ALLETE, Inc., 190 FERC ¶ 61,153, at ordering paras. (A)-(B) (2025).
[2] See id. P 18; see also Promoting Transmission Inv. through Pricing Reform, Order No. 679, 116 FERC ¶ 61,057, at P 58 (2006) (Order No. 679) (“We will also attach a rebuttable presumption that an applicant has met the requirements of section 219 … where a project has received construction approval from an appropriate state commission or state siting authority.”).
[3] See ALLETE, Inc., 190 FERC ¶ 61,153 at P 18; see also Order No. 679, 116 FERC ¶ 61,057 at P 58 (“[T]he Commission will rebuttably presume that transmission projects that result from a fair and open regional planning process that considers and evaluates projects for reliability and/or congestion and is found to be acceptable to the Commission satisfy the requirements of this Rule.”).
[4] See ALLETE, Inc., 190 FERC ¶ 61,153 at n.26 (noting the type of evidence the Commission has previously accepted when applicants mount an independent case that a project meets FPA section 219’s requirements); see also Order No. 679, 116 FERC ¶ 61,057 at P 76.
[5] See ALLETE, Inc., 190 FERC ¶ 61,153 at P 26.
[6] See, e.g., RITELine Ill., LLC, 137 FERC ¶ 61,039, at P 34 (2011) (explaining that applicant companies were not entitled to a rebuttable presumption, in part, because they had not received approval from the relevant state siting authorities); Ne. Transmission Dev., LLC, 135 FERC ¶ 61,244, at P 23 (2011) (same).
[7] See ALLETE, Inc., 190 FERC ¶ 61,153 at P 26.
[8] Order No. 679, 116 FERC ¶ 61,057 at P 58 (emphasis added).
[9] 16 U.S.C. § 824s.
[10] See Order No. 679, 116 FERC ¶ 61,057, order on reh’g, Order No. 679-A, 117 FERC ¶ 61,345 (2006), order on reh’g, 119 FERC ¶ 61,062 (2007); Promoting Transmission Inv. Through Pricing Reform, 141 FERC ¶ 61,129 (2012).
[11] Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 101 (2015).