Commissioner James Danly Statement
July 28, 2022
Docket Nos. EL19-58-007, ER19-1486-004
I dissent from today’s order[1] because it continues to affirm in part and reverse in part[2] the determinations in the Commission’s prior orders finding that PJM Interconnection, L.L.C.’s (PJM) Open Access Transmission Tariff and the Amended and Restated Operating Agreement provisions regarding the PJM reserve market are unjust and unreasonable and setting a replacement rate[3] under Federal Power Act section 206.[4]
I write separately to highlight that I have previously explained both why I object to the process by which this proceeding had come before the Commission and why I dissent on the merits.[5] As to process, the FERC Solicitor’s office (Solicitor’s Office)[6] was directed by the Chairman to seek voluntary remand without the knowledge or acquiescence of the other Commissioners, which at least violated longstanding Commission practice and may have been unlawful. Today’s order acknowledges this long-standing tradition and does not deny the Chairman’s failure to poll fellow Commissioners on the matter.[7] On the merits, this order is reckless. It arbitrarily retained certain of the Commission’s prior findings while reversing others, absent further briefing or supplementation of the record. The effect was to arbitrarily change a fundamental element of PJM’s market design, over PJM’s and litigants’ objections, without a full understanding of the consequences of those decisions.[8]
For these reasons, I respectfully dissent.
[1] PJM Interconnection, L.L.C., 180 FERC ¶ 61,051 (2022).
[2] PJM Interconnection, L.L.C., 177 FERC ¶ 61,209 (2022) (Remand Order); see also PJM Interconnection, L.L.C., 178 FERC ¶ 61,085 (2022) (Clarification Order) (order granting PJM’s request for clarification as to how PJM should reflect the reserve price caps in its filing to comply with the Remand Order).
[3] PJM Interconnection, L.L.C., 171 FERC ¶ 61,153 (May 2020 Order), order on reh’g, 173 FERC ¶ 61,123 (2020) (November 2020 Rehearing Order); PJM Interconnection, L.L.C., 173 FERC ¶ 61,134 (2020) (November 2020 Compliance Order), order on reh’g, 174 FERC ¶ 61,180 (2021) (March 2021 Compliance Rehearing Order).
[4] 16 U.S.C. § 824e.
[5] Commissioner Danly January 20, 2022 Dissent to Remand Order (Accession No. 20220120-3114); Clarification Order, 178 FERC ¶ 61,085 (Danly, Comm’r, dissenting).
[6] I refer to the lawyers who submitted the motion for voluntary remand as the “Solicitor’s Office” because they acted at the Chairman’s direction without the Commission’s knowledge or assent. The motion filed by the Solicitor’s Office was not, in any meaningful sense, the Commission’s motion. See Motion of Respondent Federal Energy Regulatory Commission, Am. Mun. Power, Inc. v. FERC, Case Nos. 20-1372, 20-1373, 20-1374, 21-1117 (D.C. Cir. Aug. 13, 2021).
[7] PJM Interconnection, L.L.C., 180 FERC ¶ 61,051 at P 107 & n.329.
[8] See Clarification Order, 178 FERC ¶ 61,085 (Danly, Comm’r, dissenting).