Commissioner Bernard L. McNamee Statement
July 16, 2020
Docket No. EL20-42-000
Order: E-2
Though I support the Commission’s Order dismissing, on procedural grounds, New England Rate Payers Association’s (NERA) Petition for Declaratory Order (Petition) concerning net metering, I write separately to make clear that today’s Order does not address any of the important, substantive issues underlying the Petition.
To that end, the Commission’s Order is not a decision on whether the Commission lacks jurisdiction over the energy sales made through net metering;[1] nor is it a decision on the merits of the issues raised by and contained in the Petition. I also note, that as a general proposition, I think it is best to decide important legal and jurisdictional questions, like the ones raised in in the Petition, when applying the law to a specific set of facts, such as in a Section 206 complaint, or through a rulemaking proceeding.
For these reasons, I respectfully concur.
[1] Since the Petition was filed, the U.S. Court of Appeals for the District of Columbia issued its opinion on the petitions for review of Commission Order Nos. 841 and 841-A, regarding electric storage resources (ESR). NARUC, et al. v. FERC, --- F.3d ---, 2020 WL 3886199 (D.C. Cir. July 10, 2020). The Court affirmed the Commission’s authority over the ESR practices at issue in those Commission orders, which practices the Court acknowledged directly affect wholesale rates regardless of whether they occur on the distribution system or behind-the-meter. Id. at *5; cf. Elec. Storage Participation in Mkts. Operated by Reg’l Transmission Orgs. & Indep. Sys. Operators, Order No. 841-A, 167 FERC ¶ 61,154 (2019) (McNamee, Comm’r, concurring in part and dissenting in part), (arguing that the Commission exceeded its jurisdictional authority by requiring local utilities and the state entities that regulate them to allow ESRs connected to the distribution system or behind-the-meter to use those the distribution systems to sell power into wholesale electric markets).