I dissent from the Commission’s Order Tolling Time for Action on Application Under Federal Power Act Section 203.[1] I write separately to explain why I disagree with tolling this proceeding under Federal Power Act (FPA) section 203.[2]
Energy Harbor Corp.’s and Vistra Corp.’s (collectively, Applicants) application[3] was filed on April 17, 2023 (Application) and supplemented on May 15, 2023 (Supplement). The Application was noticed on April 18, 2023, and the notice provided for a comment period until June 16, 2023. The Supplement was noticed on May 24, 2023 and the notice stated that the comment period was until June 16, 2023, but an errata notice was issued seven days later, i.e., May 31, 2023, and extended the comment period until June 23, 2023. Commission staff issued a deficiency letter on August 17, 2023 (Deficiency Letter).[4] The Applicants filed a response to Commission staff’s Deficiency Letter on September 18, 2023 (Deficiency Response). Commission staff issued a notice of the Deficiency Response on September 19, 2023 and provided a comment period until October 10, 2023.
We owe it to jurisdictional entities to fully discharge of our duties under the FPA and do so with alacrity. FPA section 203(a)(5) provides,
[t]he Commission shall, by rule, adopt procedures for the expeditious consideration of applications for the approval of dispositions, consolidations, or acquisitions, under this section. Such rules shall identify classes of transactions, or specify criteria for transactions, that normally meet the standards established in paragraph (4). The Commission shall provide expedited review for such transactions. The Commission shall grant or deny any other application for approval of a transaction not later than 180 days after the application is filed. If the Commission does not act within 180 days, such application shall be deemed granted unless the Commission finds, based on good cause, that further consideration is required to determine whether the proposed transaction meets the standards of paragraph (4) and issues an order tolling the time for acting on the application for not more than 180 days, at the end of which additional period the Commission shall grant or deny the application.[5]
The Tolling Order states that “the Commission requires additional time to fully analyze the Application as supplemented on May 15, 2023 and September 18, 2023.”[6] While we have authority under the statute to toll Commission action for 180 days, I disagree that more time is required and believe that, in any event, we have not met the statute’s requirements to toll.
The statute allows tolling for six months, upon a finding of good cause. That is a statutory prerequisite. Such a finding requires at least some justification; it cannot be satisfied by the mere declaration that we “require[] additional time.”[7] And while it is true that FPA section 203 proceedings can involve records of thousands of pages, and that the review of that material takes time, 180 days is the time limit set by Congress. To the extent to which staff identifies deficiencies, deficiency letters should be issued as soon as possible so as to afford the Commission the option to decide whether it wishes to act on the proceeding instead of tolling. In this case, the comment period on the Deficiency Response closed only three days prior to the issuance of the Tolling Order, i.e., only a few days before the statutory deadline for Commission action (based on the April 17, 2023 Application date). Given this timeline, it was all but guaranteed that the Commission would toll the proceeding and is doing so without the requisite showing of good cause. This practice must stop. The prompt and predictable review of FPA section 203 filings is a basic duty of the Commission. Without it, jurisdictional entities will be left guessing how and when the Commission will rule on basic filings. We do not want to see the routine disposition of jurisdictional assets subjected to the same uncertainty (and attendant costs and regulatory burdens) that have beset, for example, our Natural Gas Act section 7[8] regime in recent years.
I do not support tolling here.[9] The options the Commission could have considered had it acted by the statutory deadline include an approval of the proposal, an approval with conditions, or a denial of the application without prejudice to the applicant addressing issues identified by the Commission. The Commission could have availed itself of any of these options, giving the applicant the benefit of knowing the issues with which the Commission had been grappling.
I have one final note regarding staff’s Deficiency Letter. The letter states that
[t]he information requested in this letter will constitute an amendment to the application. The application will not be a completed application for purposes of section 33.11(a) of the Commission’s regulations, 18 C.F.R. § 33.11(a) (2022), until the information requested in this letter is submitted. A notice of amendment will be issued upon receipt of your response.[10]
18 C.F.R. § 33.11(a) provides that “[t]he Commission will act on a completed application for approval of a transaction (i.e., one that is consistent with the requirements of this part) not later than 180 days after the completed application is filed.”[11] I am pleased that the tolling order only tolls the proceeding until April 11, 2024. Had the Commission actually treated the Deficiency Response filed on September 18, 2023 as an amendment, as its regulations and the Deficiency Letter suggest, with a deadline for Commission action of 180 days from when the Deficiency Response was filed, and then tolled for 180 days based on the amended application date, I would have even greater misgivings.
For these reasons, I respectfully dissent.
[1] Energy Harbor Corp., 185 FERC ¶ 61,024 (2023) (Tolling Order).
[2] 16 U.S.C. § 824b.
[3] The Application was filed by Energy Harbor Corp., on behalf of Energy Harbor, LLC and Energy Harbor Nuclear Generation LLC, and Vistra Corp., on behalf of certain of its jurisdictional subsidiaries.
[4] I pause to note that the Commission is not, as normal practice, notified, consulted or provided with copies of the deficiency letters that are issued by staff. Staff issues those letters at their discretion, under delegated authority, and under the supervision of the Chairman. See, e.g., 18 C.F.R. § 375.307(a)(2)(iv) (delegating authority to the Director of the Office of Energy Market Regulation to “[s]ign and issue deficiency letters for filings under Federal Power Act sections 203, 204, 215, and 305(b)”); see also 42 U.S.C. § 7171(c) (“The Chairman shall be responsible on behalf of the Commission for the executive and administrative operation of the Commission, including functions of the Commission with respect to (1) the appointment and employment of hearing examiners in accordance with the provisions of Title 5, (2) the selection, appointment, and fixing of the compensation of such personnel as he deems necessary, including an executive director, (3) the supervision of personnel employed by or assigned to the Commission, except that each member of the Commission may select and supervise personnel for his personal staff, (4) the distribution of business among personnel and among administrative units of the Commission, and (5) the procurement of services of experts and consultants in accordance with section 3109 of Title 5.”) (emphasis added). Commissioners are unable to direct Commission staff to issue information requests, even if necessary for their decision making, since the Chairman oversees Commission staff. Therefore, should there be an instance where an individual commissioner needs information for their decision making, it may be necessary for a commissioner to issue their own information request. See, e.g., Statement of Commissioner James P. Danly re Tennessee Gas Pipeline Company, L.L.C., Docket No. CP19-7-000 (Sept. 27, 2023) (eLibrary Accession No. 20230927-4000) (issuing a data request as an individual commissioner).
[5] 16 U.S.C. § 824b(a)(5) (emphasis added).
[6] Tolling Order, 185 FERC ¶ 61,024 at P 2.
[7] Id.
[8] 15 U.S.C. § 717f.
[9] While I voted for tolling in a separate FPA section 203 proceeding last year, see Liberty Utils. Co., 179 FERC ¶ 61,206 (2022), I ultimately concluded that it was the wrong course of action. See Liberty Utils. Co., 181 FERC ¶ 61,212 (2022) (Danly, Comm’r, concurring at PP 3-4) (“[O]n June 17, 2022, the Commission issued an Order Tolling Time for Action Under FPA Section 203. In that order, the Commission stated, that it required ‘additional time to fully analyze the application as supplemented on May 5, 2022,’ found ‘based on good cause, that further consideration [was] required to determine whether the proposed transaction meets the standards of section 203(a)(4) of the FPA,’ and therefore tolled the time to act on the Application for an additional 180 days. While I voted for that order, in hindsight, that was the wrong course of action. . . . We should have simply denied the application without prejudice within the statutory deadline or explored the possibility of approving subject the conditions necessary to allay our concerns regarding the transaction’s rate effects. There was no reason to have taken any other course of action. . . .”) (citations omitted).
[10] Deficiency Letter at 8.
[11] 18 C.F.R. § 33.11(a) (emphasis added).