Commissioner James Danly
July 16, 2020
Docket No. EL20-42-000
I vote for today’s order for one reason—I believe that the Commission has discretion to dismiss this petition on procedural grounds. I write separately because I have concerns about the consequences of this decision.
The petition for a declaratory order filed by New England Ratepayers Association (NERA) raises difficult legal questions regarding the regulatory treatment of facilities (like rooftop solar) used by retail customers primarily, but not exclusively, to serve their own electricity requirements. These questions not only include the rate treatment for excess generation but, more importantly, the boundary between federal and state jurisdiction to address such rate treatment.
I have yet to reach any conclusion regarding either rate treatment or jurisdictional boundaries, but I am certain that these are questions of profound importance and the Commission will eventually have to address them.
I am concerned that dismissing the petition on procedural grounds may well result in a patchwork quilt of conflicting decisions if the questions raised in the petition are instead presented to federal district courts across the country. While the federal courts are more than capable of adjudicating preemption claims, they are not steeped in the history of the Federal Power Act nor in matters of national energy policy. Confusion, delay and inconsistent rules—some of which will apply to individual states or parts of states—will be the inevitable result.
For these reasons, I respectfully concur.
 See 5 U.S.C. § 554(e) (2018) (“The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.”); 18 C.F.R. § 385.207(a)(2) (2019) (providing for the filing of a petition for “[a] declaratory order or rule to terminate a controversy or remove uncertainty”).