Commissioner James Danly Statement
February 17, 2022
Docket No. ER20-1068-003
I would grant rehearing and approve The Dayton Power and Light Company’s 50 basis point adder for Regional Transmission Organization (RTO) participation. As I wrote in my dissent when the Commission originally rejected the adder,[1] section 219(c)[2] of the Federal Power Act states that “the Commission shall . . . provide for incentives to each transmitting utility or electric utility that joins a Transmission Organization.”[3] There is no requirement in the statute for the utility to voluntarily join an RTO. The Commission itself established that extra-statutory requirement in Order No. 679 and subsequent orders.[4]
I am aware of no instance where an appellate court has ruled that the Commission’s Order No. 679 interpretation is consistent with the statute.[5] It is not.
Nothing in the majority’s opinion on rehearing changes my mind about the plain language of section 219(c).[6] The “voluntariness” requirement is the Commission’s creation and remains at odds with the statute.
For these reasons, I respectfully dissent.
[1] The Dayton Power & Light Co., 176 FERC ¶ 61,025 (2021) (Danly, Comm’r, dissenting).
[2] 16 U.S.C. § 824s(c).
[3] The Dayton Power & Light Co., 176 FERC ¶ 61,025 (2021) (Danly, Comm’r, dissenting at P 2).
[4] See Promoting Transmission Investment through Pricing Reform, Order No. 679, 116 FERC ¶ 61,057, at P 331 (2006), order on reh’g, Order No. 679-A, 117 FERC ¶ 61,345 (2006), order on reh’g, 119 FERC ¶ 61,062 (2007).
[5] See Cal. Pub. Utils. Comm’n v. FERC, 879 F.3d 966, 975 (9th Cir. 2018) (ruling 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” but not opining on whether Order No. 679 is consistent with FPA section 219(c)).
[6] See The Dayton Power & Light Co., 178 FERC ¶ 61,102 (2022).