Docket Nos. EL19-58-017, ER19-1486-005
As the majority recognizes, the Sixth Circuit gave us broad authority to say “what, if anything, [the Commission] could or would have done” in response to a previous Chairman’s error in unilaterally asking the D.C. Circuit to remand the Commission’s Original ORDC Orders.[1] Because part of the Commission’s underlying orders in this matter include findings that the then-status quo was unjust and unreasonable,[2] closing out this matter, to my mind, includes assessing if the findings and replacement rate in the now-pending Voluntary Remand Orders are just and reasonable. But here we run into a problem: as the majority explains (and I agree), market conditions and PJM’s market design have changed significantly since the D.C. Circuit remand.
These new circumstances make it difficult to determine on this record what the right replacement rate is—the rate in the original order, the rate in the Voluntary Remand Order, or something else. In response to this dilemma, the majority opts to keep the Voluntary Remand Order in place. I see the appeal: Today’s order closes out this matter with minimal disruption because it leaves the now-status quo undisturbed and doesn’t wade into difficult merits questions. Nevertheless, letting the Voluntary Remand Order stand is an implicit judgment that it contains the appropriate replacement rate. I cannot responsibly make that finding on a record that doesn’t reflect current market realities. Instead, I would have sought supplemental briefing to give the Commission enough information to set a just and reasonable replacement rate or take other steps consistent with FPA section 206. For that reason, I respectfully dissent.
That said, I fully endorse the majority’s hope that closing this docket will give PJM and all market participants certainty about the Commission’s course—and thus spur them forward to propose whatever reforms may be most appropriate to meet today’s market needs. With any luck, today’s order will be a bridge and not the destination.
For these reasons, I respectfully dissent.
Lindsay S. See
Commissioner
[1] Elec. Power Supply Ass’n v. FERC, 89 F.4th 546, 557 (6th Cir. 2023).
[2] PJM Interconnection, L.L.C., 171 FERC ¶ 61,153, PP 22, 24, 74 (May 2020 Order), order on reh’g, 173 FERC ¶ 61,123 (2020), order on remand PJM Interconnection, L.L.C., 177 FERC ¶ 61,209 (2021), order on reh’g, 180 FERC ¶ 61,051 (2022).