Commissioner James Danly Statement
June 17, 2021
Docket No. RM18-9-003
I agree with the Commission’s order today granting rehearing to extend the states’ existing rights to opt-out of wholesale demand response programs[1] including demand response resources that participate in “heterogeneous distributed energy resource aggregations.”[2] In other words, states can choose to prohibit demand response resources within their boundaries from participating in multi-state, wholesale distributed energy resource programs. This order represents the correct division of authority between state and federal jurisdiction.
I write separately to highlight that even if the Commission is correct that it has jurisdiction over distributed energy resource aggregations—including those “aggregations” comprised of a single resource[3]—the Commission still should have chosen not to exercise such jurisdiction in Order No. 2222.[4] This order on rehearing returns authority over demand response resources—which often are included in distributed energy resource aggregations—to the states, letting the states choose whether demand response resources can participate in wholesale distributed energy resource aggregations. This correctly preserves the traditional allocation of authority between the individual states and the federal government.
For these reasons, I respectfully concur.
[1] See Wholesale Competition in Regions with Organized Electric Markets, Order No. 719, 125 FERC ¶ 61,071, at P 155 (2008), order on reh’g, Order No. 719-A, 128 FERC ¶ 61,059, order on reh’g, Order No. 719-B, 129 FERC ¶ 61,252 (2009).
[2] Participation of Distributed Energy Res. Aggregations in Mkts. Operated by Reg’l Transmission Orgs. & Indep. Sys. Operators, 175 FERC ¶ 61,227, at P 26 (2021) (Order).
[3] See Participation of Distributed Energy Res. Aggregations in Mkts. Operated by Reg’l Transmission Orgs. & Indep. Sys. Operators, Order No. 2222, 85 Fed. Reg. 67,094 (Oct. 21, 2020), 172 FERC ¶ 61,247, at P 1 n.1 (2020), corrected, 85 Fed. Reg. 68,450 (Oct. 29, 2020), order on reh’g, Order No. 2222-A, 174 FERC ¶ 61,197 (2021) (Danly, Comm’r, dissenting) (discussing single resource “aggregations”); 18 C.F.R. § 35.28(b)(10) (2020).
[4] See Order, 175 FERC ¶ 61,227 at P 27 (discussing case law on jurisdiction).