Commissioner James Danly Statement
October 20, 2022
ER21-59-002
I dissent from this order rejecting Brookfield Renewable Trading and Marketing LP’s (Brookfield) request for rehearing of the Commission’s Mobile-Sierra determinations.[1] I dissented from the original order because it failed to properly apply the Mobile-Sierra presumption to the contract sales at issue.[2] It erred by requiring refunds for the “premium” amount above the price index that Brookfield and the willing buyers freely negotiated, absent any showing that the public interest was seriously harmed by the contract rate.[3]
Today’s order on rehearing adds nothing to change my opinion. My original dissent fully explains the Commission’s misapplication of the Mobile-Sierra presumption, and no further response being necessary here, I commend that dissent to the reader’s attention.[4]
For these reasons, I respectfully dissent.
[1] Brookfield Renewable Trading & Mktg. LP, 181 FERC ¶ 61,046 at PP 16-22 (2022); see United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332 (1956); FPC v. Sierra Pac. Power Co., 350 U.S. 348 (1956).
[2] Brookfield Renewable Trading & Mktg. LP, 179 FERC ¶ 61,119 (2022) (Danly, Comm’r, dissenting).
[3] Id.
[4] Id.