Commissioner James Danly Statement
July 27, 2023
Docket No. RM22-14-000
I concur in the issuance of today’s final rule. I write separately to state that, while I continue to harbor misgivings about the Commission’s power to implement far-reaching, uniform policies based on our authority under FPA section 206,[1] I am satisfied on this record that existing interconnection procedures in both RTO and non-RTO regions have been shown to be unjust and unreasonable, and that we take today’s action consistent with the standards articulated in precedent.[2] Though I am not convinced that this precedent will ultimately be proven correct in declaring that “the Commission may rely on ‘generic’ or ‘general’ findings of a systemic problem to support imposition of an industry-wide solution,” the Commission is entitled to act under prevailing case law.[3]
I also agree that the relatively narrow reforms contemplated in this final rule appear, based on this record, to be a just and reasonable replacement rate. I am pleased that most of that which I considered to be the most problematic elements in the Notice of Proposed Rulemaking have been excluded from this rule.[4] I also remind parties of the availability of “the independent entity variation standard for regional transmission organizations (RTO) and independent system operators (ISO) and the consistent with or superior to standard for non-RTO/ISO transmission providers” should they choose to seek variations from these rules.[5]
While I vote to approve today’s order, I will also thoroughly review any requests for rehearing, particularly to the extent to which parties to the proceeding wish to advance arguments that we have exceeded our authority under FPA section 206, or that we have failed to carry our evidentiary burden, either generally, or in a sufficient number of specific cases that our order amounts to an unlawful exercise of our powers.
I would have preferred to receive section 205[6] filings from utilities proposing interconnection reforms—and indeed we have received and ruled upon a number of such filings. Failing that, I would have preferred for the Commission or interested parties to have initiated FPA section 206 complaints against the RTOs or other entities with interconnection delays, rather than to have proceeded generically in an effort to establish uniformity.[7] However, my preferences do not make this rule unlawful, and I am satisfied that today’s rule is consistent with our legal obligations.
For these reasons, I respectfully concur.
[1] 16 U.S.C. § 824e.
[2] Improvements to Generator Interconnection Procedures & Agreements, 184 FERC ¶ 61,054, at P 57 & n.149 (2023) (Interconnection Rule) (citing S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 67 (D.C. Cir. 2014) (quoting Interstate Nat. Gas Ass’n v. FERC, 285 F.3d 18, 37 (D.C. Cir. 2002))).
[3] Id.
[4] Improvements to Generator Interconnection Procedures & Agreements, 179 FERC ¶ 61,194 (2022) (Danly, Comm’r, concurring at PP 6-10) (NOPR Concurrence).
[5] Interconnection Rule, 184 FERC ¶ 61,054 at P 10 (citation omitted).
[6] 16 U.S.C. § 824d.
[7] See NOPR Concurrence at PP 1, 4.