Item E-10: Commissioner James Danly Dissent Regarding The Dayton Power and Light Company

Commissioner James Danly Statement
July 15, 2021
Docket No. ER20-1068-000
Item E-10

I dissent from this order because the Federal Power Act does not limit incentives to only those utilities that “voluntarily” join a transmission organization.  The Commission improperly added this non-statutory requirement in Order No. 679.[1]  We had no authority to do so then or now.

Section 219(c) of the Federal Power Act provides that “the Commission shall . . . provide for incentives to each transmitting utility or electric utility that joins a Transmission Organization.”[2]  This plain statutory text does not limit the provision of incentives to only those utilities “that ‘voluntarily’ join[]” a transmission organization.  Congress could have established this limitation, but Congress did not.

The Commission itself added the “voluntary” limitation in Order No. 679 and subsequent orders implementing the statutory text.  I do not see this addition as an example of the Commission filling in the unforeseen interstices in a statutory regime or acting in the face of statutory ambiguity.  Order No. 679 works an amendment of unambiguous law and only Congress—not FERC—has the authority to pass and amend statutes.  Congress said the Commission should provide incentives to a utility “that joins” a transmission organization.  Ohio could thus mandate that The Dayton Power and Light Company join a transmission organization and The Dayton Power and Light Company would still qualify for the incentive under the plain terms of the statute for as long as it remains in a transmission organization.

The ruling of the 9th Circuit Court of Appeals that under Order No. 679 “the voluntariness of a utility’s membership in a transmission organization is logically relevant to whether it is eligible for an adder” does not change the meaning of the statute.[3]  The Court in CPUC did not interpret section 219(c) of the Federal Power Act; it only interpreted and ruled on Order No. 679.  CPUC does not address whether FERC improperly exceeded the statutory text by limiting the incentive to a utility “that ‘voluntarily’ joins” a transmission organization.

I therefore would approve the 50-basis point adder because The Dayton Power and Light Company has “joined” PJM, which is a transmission organization.  I also would reverse our “voluntariness” limitation in Order No. 679 because it runs afoul of the statute.

For these reasons, I respectfully dissent.