Commissioner James Danly Statement
April 15, 2021
Docket No. AD20-14-000
Any party with a rate on file can submit a Federal Power Act section 205[1] filing at any time. I therefore cannot oppose the policy statement’s effective acknowledgement that section 205 has yet to be repealed and thus the Commission is obligated to consider such filings, including those related to carbon pricing initiatives.[2] So, as seemingly unnecessary as it may be to announce a policy of “non-binding . . . potential considerations,” I see no basis upon which to oppose that aspect of the policy statement.[3]
Also “non-binding” is the majority’s view of our jurisdictional powers as they memorialize them in this policy statement.[4] I accordingly dissent from the policy statement to the extent it attempts to prejudge the jurisdictional merits of any future section 205 proposals. Congress grants our jurisdiction, and the courts decree its limits when we overstep it. Anyone considering a section 205 filing following this issuance would be well-advised to read the courts’ decisions in order to inform themselves as to the proper bounds of a legitimate tariff proposal; interested parties should do the same when formulating protests.
Finally, my prior statement in this proceeding that the Commission “ha[s] jurisdiction to entertain section 205 filings that seek to accommodate state carbon-pricing policies” meant no more and no less than that.[5] The Commission has the duty “to entertain” any section 205 filing. I reiterate now in case any party wishes to disregard my plain meaning: the Commission cannot prejudge whether future section 205 filings designed to accommodate state carbon-pricing initiatives will pass jurisdictional muster.[6]
For these reasons, I respectfully concur in part and dissent in part.
[1] 16 U.S.C. § 824d.
[2] See Carbon Pricing in Organized Wholesale Elec. Mkts., 175 FERC ¶ 61,036, at P 4 (2021).
[3] Id.
[4] See id. PP 8-17.
[5] Compare Carbon Pricing in Organized Wholesale Elec. Mkts., 173 FERC ¶ 61,062 (2020) (Danly, Comm’r, concurring in part and dissenting in part at P 1), with Exelon Corporation December 1, 2020 Reply Comments, Docket No. AD20-14-000, at 7-8.
[6] See Carbon Pricing in Organized Wholesale Elec. Mkts., 173 FERC ¶ 61,062 (Danly, Comm’r, concurring in part and dissenting in part at P 4) (“I would have waited until we had an actual 205 filing before us rather than pre-judging the issue based on unstated assumptions about how such programs might work. It is easy to imagine any number of RTO/ISO carbon-pricing proposals that would violate the Federal Power Act . . . .”).