Commissioner Neil Chatterjee Dissent on Thunderhead Wind Energy LLC

Commissioner Neil Chatterjee Statement
April 26, 2021
Docket No.  ER21-1023-000

I oppose today’s order because I believe the Commission got it right the first time when it denied Thunderhead’s initial waiver request.[1]  The nearly identical record here does not support a completely different result. 

As a general matter, I favor a flexible, case-by-case approach to waivers to cure administrative or other similar, limited errors that arise under complex tariff processes,[2] and I am sympathetic to the challenges of navigating lengthy and often delayed interconnection processes.  However, I disagree that the Commission should use its waiver authority to relieve an interconnection customer of process uncertainties—especially here, where the timing uncertainties and potential for delays are specifically described in Thunderhead’s executed Generator Interconnection Agreement (GIA).[3]

Thunderhead’s renewed waiver request provided some additional detail to support its claim that granting waiver to permit an alternative Point of Interconnection could allow Thunderhead to achieve commercial operation a few months sooner.  However, beyond the approximately seven months it would take for SPP to fully evaluate the alternative Point of Interconnection and complete the necessary studies,[4] WAPA explains that its environmental review process for the alternative Point of Interconnection would include “potential scoping, consultation with various parties, the Endangered Species Act review, and other requirements, [and] could take significant time to complete, perhaps as long or longer than Thunderhead’s stated expectations or completing the existing environmental process associated with the [existing Holt Substation Point of Interconnection].”[5]  Thus, even with the additional details upon which the majority relies, as the Commission unanimously concluded in the November 2020 order, it is still “not clear that granting the waiver necessarily would lessen the overall time required for Thunderhead to achieve commercial operation.”[6] 

The majority now asserts that waiver is necessary to address a significantly delayed and uncertain interconnection timeline.[7]  This rationale is troublesome for a variety of reasons, including that thousands of projects working through the interconnection process encounter queue-related delays and thus similarly face uncertain interconnection timelines.  Despite the majority’s stated hesitation to grant waivers just like this one,[8] the majority’s rationale opens the floodgates to waiver requests seeking relief from the “concrete problem” of timing uncertainty and delays.  This could place the Commission in the untenable position of having to pick and choose—with no discernable principles or guardrails—what types and levels of uncertainty and delays in the interconnection process warrant relief from the existing rules.  Ironically, in its effort to provide special treatment to relieve a single facility of its uncertainty, the majority could make interconnection processes less certain.

Today’s order also fails to grapple with the fact that the uncertainty the majority now characterizes as a concrete problem has been part of this project’s development from the start.  In October 2014, the United States Department of the Interior, Fish and Wildlife Service (Fish and Wildlife) informed the public of its intent to prepare an environmental impact statement (EIS) under the National Environmental Policy Act to assess the impacts on the natural and human environment from the proposed issuance of a permit for the R-Project.[9]  Thunderhead and the public therefore were on notice that there was going to be a thorough environmental review of the R-Project,[10] creating uncertainty regarding whether and when the R-Project would be completed. 

This documented uncertainty existed before Thunderhead submitted its generation interconnection request—with the Holt Substation as the Point of Interconnection—to be studied in the Definitive Interconnection System Impact Study (DISIS) for Grouped Generation Interconnection Requests submitted in the window ending March 31, 2015.[11]  Moreover, before Fish and Wildlife even published its draft EIS on the R-Project,[12] Thunderhead executed a GIA that designated the Holt Substation as the Point of Interconnection and the R-Project as a Previous Network Upgrade.[13]  Thunderhead thus accepted the risk that construction of the unbuilt R-Project, a 222-mile transmission line and the associated Holt Substation, could be delayed or even abandoned, and thus also accepted the risk of associated delays for its facility.[14]

At no point has the timing of the R-Project been certain.[15] And now the R-Project’s Fish and Wildlife permit has been vacated,[16] further underscoring the inherent timing uncertainty the Thunderhead facility has always faced.  After denying effectively the same waiver request just months ago, there is no basis for the Commission to reverse course now and use waiver as a tool to alter the interconnection process for this project to try to mitigate that uncertainty.

I have long advocated for common-sense flexibility when it comes to the Commission’s waiver policy, and I am without a doubt sympathetic to the facts of this case.  But, as detailed above, today’s order goes too far.   

For these reasons, I respectfully dissent.