September 22, 2022
Project No. 2530-057
I concur with today’s order[1] issuing Brookfield White Pine Hydro LLC a new license to continue to operate and maintain the Hiram Hydroelectric Project. I write separately to make two points.
First, I note that the Commission finds a certain recommendation filed by the Department the Interior under section 10(j) of the Federal Power Act (FPA)[2] to be “outside the scope” of that section and instead considers it under FPA section 10(a)(1).[3] As I have previously stated,[4] I have misgivings about this practice.
Second, I write to express my concern about Article 202, which reserves authority for the Commission to impose financial assurance mechanisms without any limiting principle.[5] As I have previously stated,[6] this reservation may have the unfortunate effect of reinforcing uncertainty and limiting licensees’ access to the very financing we should seek to encourage. I very much appreciate those who participated in Commission staff’s technical workshop to discuss financial assurance mechanisms.[7] It is imperative that the Commission take a hard look at our financial assurance requirements and deliberately determine what, if any, changes or improvements should be adopted.
For these reasons, I respectfully concur.
[1] Brookfield White Pine Hydro LLC, 180 FERC ¶ 61,185 (2022) (Brookfield).
[2] 16 U.S.C. § 803(j).
[3] Brookfield, 180 FERC ¶ 61,185 at PP 62, 64; see also 16 U.S.C. § 803(a)(1).
[4] See, e.g., Cornell Univ., 176 FERC ¶ 61,186 (2021) (Danly, Comm’r, concurring in part and dissenting in part at P 2).
[5] See Brookfield, 180 FERC ¶ 61,185 at P 108 & Ordering Para. F (listing additional license articles, including Article 202 which provides “The Commission reserves the right to require future measures to ensure that the licensee maintains sufficient financial reserves to carry out the terms of the license and Commission orders pertaining thereto.”) (emphasis added).
[6] See, e.g., Pub. Util. Dist. No. 1 of Pend Oreille Cnty., 177 FERC ¶ 61,183 (2021) (Danly, Comm’r, concurring at PP 1-3).
[7] See Transcript of the Technical Conference on Financial Assurance Measures for Hydroelectric Projects, Docket No. RM21-9-000 (Apr. 26, 2022).