Docket No. EL26-45-000
I appreciate ISO-NE taking on what has become a repeated issue as it has increasingly found itself unable to correct erroneous charges and payments to and from market participants.1 I fully agree with today’s order accepting ISO-NE’s proposal to address these concerns when it comes to accepting and reallocating refunds for payments market participants received in error, as well as modifying the Billing Policy RBA process to let the ISO address more post-settlement issues.2 I also agree that—given the potential for market upset and other technical and financial challenges—FPA Section 206 does not require the Commission to mandate additional mechanisms to address cases where market participants overpay due to errors impacting unit commitment or real-time dispatch.3
With respect to ISO-NE’s request for Commission guidance whether it should address some overpayment scenarios by allowing extended settlement deadlines in certain cases, I also agree with today’s order declining to advise on a hypothetical Tariff revision.4 Sound policy supports the Commission’s practice not to weigh in on a potential Tariff change without full details of a proposal and the benefit of potential input from interested parties.5
I write separately, however, to encourage ISO-NE and stakeholders to continue considering whether balanced solutions—like this hypothetical change or otherwise—could address the inequities from a lack of Tariff-based solutions to return overpayments. This task is particularly important because the Commission may not be able to come in with a remedial save to make up for the Tariff’s gap in future cases. To my mind, if situations similar to those giving rise to this Show Cause proceeding recur, the Commission may be legally prohibited from granting relief no matter how compelling the facts. As I highlighted in ISO-NE, even when all the equities weigh in a waiver applicant’s favor, the Commission has no legal authority to waive tariff provisions when doing so violates the filed rate doctrine and the corollary rule against retroactive ratemaking.6 Although a three-member Commission granted case-specific relief over my dissent in that decision last year, the facts of a future case may well lead to a different result.
The filed rate doctrine and rule against retroactive ratemaking deal in notice and market participants’ expectations.7 As it stands today, this proceeding makes clear that ISO-NE does not think the Tariff currently allows relief in circumstances like those in ISO-NE—that is, errors impacting unit commitment or real-time dispatch. Arguably, then, market participants have even more notice now than they did a year ago that the rate on file does not leave room to resolve even exceedingly sympathetic inequities.
So while I agree that we should not opine on the specifics of a proposal that is not in front of us, I do encourage ISO-NE and interested parties to consider whether Tariff revisions allowing ISO-NE to remedy errors under more circumstances would be appropriate. Tacit reliance on extra-Tariff relief that the Commission may be statutorily barred from providing is not a durable fallback.
For these reasons, I respectfully concur.
- 1ISO New England Inc., 194 FERC ¶ 61,187 (2026); see also See Canal Mktg. LLC, 188 FERC ¶ 61,122 (2024); Brookfield Renewable Trading & Mktg. LP, 194 FERC ¶ 61,186 (2026); ISO New England Inc., 193 FERC ¶ 61,084 (2025) (ISO-NE).
- 2ISO New England Inc., [OSEC, please cite to E-2] at PP 25-27 (2026).
- 3Id. PP 35-36.
- 4Id. P 40.
- 5See, e.g., Advanced Energy Mgmt. All. v. FERC, 860 F.3d 656, 662 (D.C. Cir. 2017) (citing City of Winnfield v. FERC, 744 F.2d 871, 875-76 (D.C. Cir. 1984) (describing the Commission’s “passive and reactive role” with respect to section 205 filings)).
- 6SeeISO-NE, 193 FERC ¶ 61,084 (2025) (See, Comm’r, dissenting at P 2) (“ISO-NE has already applied the Tariff provision it now asks the Commission to waive. That’s the definition of retroactive relief: The ISO wants to unring the bell, not get permission to keep from ringing it in the first place.”).
- 7Id. P 7.