Item E-8: Commissioner James Danly Concurrence in Part and Dissent in Part Regarding Gallatin Power Partners LLC

Commissioner James Danly Statement
December 16, 2021
Docket No. QF21-1213-000
Order E-8

This order[1] follows and compounds the error we established in Broadview Solar, LLC, 174 FERC ¶ 61,199 (2021): treating a facility that plainly exceeds the statutory capacity limit for a qualifying facility as though it were a much smaller facility because it includes batteries and limits itself to an 80 MW “maximum net output.”  I dissented from this aspect of the Commission’s holding in Broadview Solar, and I dissent again today[2] because there is no net-output exception to the power production capacity threshold established by the Public Utility Regulatory Policies Act of 1978 (PURPA).[3]

Today’s order follows Broadview Solar in finding that a solar facility satisfies the statutory 80 MW power production capacity limit even though Gallatin Power Partners LLC’s own Form 556 filing shows that the facility has nameplate capacity of 160 MW.[4]  The Commission’s central holding here is wrong: the actual power production capacity of this 160 MW facility is not irrelevant merely because the facility is designed so as to be able to deliver no more than 80 MW to its interconnection at any given time.  As I explained in my original dissent in Broadview Solar, not a single word of the Commission’s “for-delivery-to- the-utility” standard appears anywhere in the text of PURPA which establishes the 80 MW power production capacity limit.[5] Nor, as I also explained, does this standard find any support in the Commission’s regulations or precedent.[6]  Nothing in today’s order causes me to revise my view.

However, I pause to note that I also disagree with the protest of Northwestern Corporation which stated in its protest that the power production capacities of the solar array and the battery facilities should be calculated separately.[7]  Batteries (and other storage systems) cannot be   included when determining the “power production capacity” of a facility because batteries (and other storage systems) do not “produce” power—they simply store  it for later delivery. There is no more support in the statutory language of PURPA for Northwestern’s position that batteries must be included in a facility’s power production capacity than there is in the Commission’s position that it is a facility’s delivery capability, and not its actual power production capacity, that counts towards the   statutory 80 MW limit.

For these reasons, I respectfully concur in part and dissent in part.