Commissioner Allison Clements Statement
March 24, 2022
Docket Nos. ER21-1111-005, et.al.
I concur with the judgment of the Commission in this order because, absent further direction or clarification from the courts, I believe it is appropriate for the Commission to read Indiana & Michigan Electric Company v. Federal Power Commission[1] as constraining our authority to modify the 60-day minimum notice period set forth in section 205(d) of the Federal Power Act.
I write to highlight that this is a close case. Rule 2007’s time computation formula is arguably quite distinguishable from the order at issue in Indiana & Michigan Electric Company.[2] In that case, the United States Court of Appeals for the DC Circuit invalidated an order by the Commission that created a de-facto 60-day notice period for utilities seeking to increase their rates under section 205, doubling the then-effective 30-day statutory period.[3] In contrast, Rule 2007 merely sets forth a time computation method for how the days in the 60-day period should be counted in the event the Commission is closed. This case turns on the applicability of Indiana & Michigan Electric Company[4] because, should that case’s finding that the Commission lacked authority to modify the deadline not extend to these circumstances, Rehearing Parties’ interpretation of Rule 2007 would not trigger a violation of the filed rate doctrine.[5]
The Commission was correct in noting its practice of issuing orders prior to weekends and holidays on which a filing party’s intended effective date occurs.[6] However, it is also true that Rule 2007 can be interpreted as consistent with this practice, insofar as the Commission need not act at the last possible statutory moment. It would be proper for the Commission to seek to effectuate filing parties’ intended effective dates where appropriate even were this result not compelled by statute.
The result in the instant case is lamentable insofar as it deprives the Rehearing Parties a chance to be heard on the merits of their claims.[7] Further, while today’s order suggests that the Commission may not have authority to extend a filing deadline should the Commission close due to an emergency,[8] it does not formally modify Rule 2007, leaving uncertain the Commission’s authority to issue an order on a section 205 filing upon recommencing operation after an emergency should the requested effective date have elapsed while it was closed. I am confident that in such circumstances the Commission will endeavor to act rapidly and appropriately, as required, but the lack of certainty regarding the scope of the Commission’s authority is nevertheless cause for concern. An emergency that may cause the Commission to close, such as a cyber-attack, physical terrorist attack, or extreme weather event, would be a time at which certainty and clarity are particularly important.
In the absence of directly applicable precedent, the Commission must muddle through with our best effort to determine what is compelled by the Federal Power Act and the cases that have thus far interpreted it. I hope that the United States Court of Appeals for the DC Circuit provides us with clarity in this difficult matter, so that we can in turn expeditiously work to achieve clarity regarding how the Commission will process tariff filings in the event of an emergency.
For these reasons, I respectfully concur.
[1] 502 F.2d 336 (D.C. Cir. 1974).
[2] Id.
[3] Id. at 340-42.
[4] Id.
[5] This is because if the agency had authority in promulgating Rule 2007 in determining how 60 days should be counted after a utility makes a section 205 filing, applying it to these circumstances would modify the date at which the proposed tariff goes into effect, rather than modifying the tariff after it goes into effect. (I.e., Rule 2007 would dictate that the proposed rate did not go into effect until October 12, not that it went into effect on October 11 but should be retroactively modified on October 12.)
[6] Alabama Power Company, 177 FERC ¶ 61,178, at P 13, n.24 (2021).
[7] I have previously expressed my serious concerns with the Southeast EEM proposal. For example, in my Fair RATES Act statement issued at the time the proposed tariff went into effect, I stated that the Commission’s failure to reject the SEEM proposal “puts at risk the Commission’s long-running and largely unified commitment to steadily expanding non-discriminatory open access, a legal tradition exemplified by one of the Commission’s proudest actions, Order No. 888.” Commissioner Clements Fair RATES Act Statement on Southeast Energy Exchange Market, Docket Nos. ER21-1111-002, et al. (Oct. 20, 2021).
[8] The order is not clear with regard to whether Order 2007 remains valid in emergency conditions, as it deliberately notes that an emergency situation is distinguishable from the present case. Majority Order at P 16, n. 51 (“We also note that these orders were intended to address emergency situations that are not present in this case.”).