Chairman Neil Chatterjee Statement
September 30, 2020
Docket No. ER20-966-000
I fully support the Commission’s determination to grant this uncontested waiver request.
The dissent, at its core, argues for an approach to waiver requests that requires flawless adherence to all administrative tariff deadlines, and denies the Commission a modicum of regulatory flexibility to address ministerial or inadvertent errors on a case-by-case basis. Such an approach ignores the business realities facing public utilities. And it harms consumers. Recent challenges posed by the COVID-19 pandemic have underscored the value of regulatory flexibility when circumstances warrant.
As the dissent acknowledges, “denying the waiver could have serious consequences for Montana-Dakota, as it relies on its NITS to serve its load, and Montana-Dakota could incur substantial network-upgrade costs, which will be passed on to its customers, if required to apply for new service.”[1] Neither the Federal Power Act nor the filed rate doctrine, which are consumer protective,[2] require such a result in this case involving an inadvertently missed administrative deadline[3] where there is no record evidence of harm to third parties from granting the waiver.[4]
The dissent does not sufficiently grapple with the record evidence here that granting the instant waiver not only will avoid harm to customers of Montana-Dakota, but also will avoid harm to specific third parties.[5] For these reasons, I support granting this waiver.
Thus I respectfully concur.
Neil Chatterjee
Chairman
[1] Danly Dissent P 11.
[2] See, e.g., Pa. Water & Power Co. v. FPC, 343 U.S. 414, 418 (1952) (“A major purpose of the [Federal Power Act] is to protect power consumers against excessive prices.”); Old Dominion Elec. Coop., Inc. v. FERC, 892 F.3d 1223, 1230 (D.C. Cir. 2018) (explaining that the filed rate doctrine and its companion rule against retroactive ratemaking “operate as a nearly impenetrable shield for consumers”) (citations omitted).
[3] The dissent does not cite or discuss precedent involving analogous circumstances, but rather cites to the Commission’s recent Proposed Waiver Policy Statement and discussion therein. See Waiver of Tariff Requirements, 171 FERC ¶ 61,156 (2020). The Commission has not endorsed the Proposed Waiver Policy Statement in final form.
[4] The dissent infers harm to third parties because Montana-Dakota stated in its waiver request that it “could incur substantial network costs associated with obtaining new SPP NITS . . . .” Waiver Request at 7. The dissent speculates that these potential costs will necessarily be borne by other utilities. Danly Dissent at PP 8-9.