Docket No. RM21-14-000
I dissent from today’s order because it limits consideration of options at a time when I believe we need every tool in the toolbox to meet the electricity demand growth our country is experiencing. My primary motivation for writing separately is not to say whether my colleagues are right or wrong to close this dormant proceeding, but instead to elevate the issue of demand response and the important optionality it offers for quickly connecting new customers to the grid and balancing the affordability issues that are front of mind.
The electricity system is at a turning point. New electric customers can individually use as much energy as a city. There are two primary ways to meet this growth and power these new, large customers. One path is to enable faster and cheaper grid integration by offering the option to use load flexibility or behind the meter generation, which can reduce impacts on the transmission system, require significantly less infrastructure, and lower costs. The other path is to rely on only the status quo, which can be time-intensive, require significant new infrastructure, and increase costs. While I believe strongly in building out needed energy infrastructure, we must also ensure that all options, including demand response, are available.
I believe the Commission should consider whether demand response[1] provided by customers that individually consume hundreds of megawatts or more is best enabled through a patchwork of programs or by a single RTO/ISO-wide program. With the benefit of hindsight, it is obvious that the Commission was not envisioning large retail customers like data centers when it first established the demand response opt-out in 2008.[2] Nor could the Commission have been aware of how technologies that allow large loads to deliver meaningful grid flexibility with minimal impacts on the end-use customer would proliferate.[3] Moreover, in the intervening years, courts have affirmed the Commission’s exclusive authority to determine who may participate in wholesale markets.[4]
Every day, we see more evidence that both load flexibility and bring your own generation are essential to efficiently integrating new large loads like data centers.[5] I would have preferred to probe whether it would be appropriate to revive this proceeding in a way that is forward-looking and tailored to the needs of the grid in 2026. Similarly, I would like to gather further record on how the perspectives of our state regulator colleagues may have evolved since 2021. I have extraordinary respect for their perspectives, in particular, given that they regulate the retail rates ultimately charged to large load customers and have significant experience integrating large loads.[6]
All of this said, I want to emphasize that I share my fellow Commissioners’ desire to close dormant proceedings. Leaving dormant regulatory proceedings open for years increases regulatory uncertainty and makes investing in new energy resources riskier and more expensive. That is a real cost that I agree this Commission must consider. But meeting the current moment also demands that we give full consideration to load flexibility, and I look forward to working with my colleagues on this topic as the Commission embarks upon the reforms needed to ensure the timely and orderly interconnection of large loads to the transmission system.[7]
For these reasons, I respectfully dissent.
[1] I note that the Commission considers both load flexibility and behind-the-meter resources that do not inject to be demand response, so maintaining the current opt-out presents a barrier to both approaches. See Elec. Storage Participation in Mkts. Operated by Reg’l Transmission Orgs. & Indep. Sys. Operators, Order No. 841, 162 FERC ¶ 61,127, at P 32 (2018), order on reh’g, Order No. 841-A, 167 FERC ¶ 61,154 (2019), aff’d sub nom. Nat’l Ass’n of Regul. Util. Comm’rs v. FERC, 964 F.3d 1177 (D.C. Cir. 2020) (NARUC v. FERC) (“[W]e have previously found that behind-the-meter resources that do not inject electric energy onto the grid are considered demand response.”).
[2] See Order No. 719, 125 FERC ¶ 61,071, at PP 154-56 (2008).
[3] See, e.g., Philip Colangelo et al., Turning AI Data Centers into Grid-Interactive Assets: Results from a Field Demonstration in Phoenix, Arizona (2025), https://arxiv.org/abs/2507.00909 (“Conducted at a 256-GPU cluster running representative AI workloads within a commercial, hyperscale cloud data center in Phoenix, Arizona, the trial achieved a 25% reduction in cluster power usage for three hours during peak grid events while maintaining AI quality of service (QoS) guarantees.”).
[4] See NARUC v. FERC, 964 F.3d at 1187 (“[B]ecause FERC has the exclusive authority to determine who may participate in the wholesale markets, the Supremacy Clause . . . requires that States not interfere.”); see also FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 278 (2016) (“[W]e now approve, a common-sense construction of the FPA’s language, limiting FERC’s ‘affecting’ jurisdiction to rules or practices that ‘directly affect the [wholesale] rate.’ . . . [T]he rules governing wholesale demand response programs meet that standard with room to spare.” (footnotes omitted)).
[5] See, e.g., PJM Interconnection, L.L.C., 193 FERC ¶ 61,217, at P 77 (2025) (“[O]ffering non-capacity backed transmission service on a permanent basis would allow PJM to capture the benefits of co-located facilities, serving the same amount of total load at lower cost, with less transmission infrastructure and fewer capacity resources.”); Carlo Brancucci et al., Flexible Data Centers: A Faster, More Affordable Path to Power (2025), https://www.camus.energy/flexible-data-center-report (finding that flexible data centers can connect 3-5 years faster, mitigate new system buildout, and shift remaining costs onto the data center); Ryan Hledik et al., The Untapped Grid: How Better Utilization of the Power System Can Improve Energy Affordability, Brattle (2026), https://www.brattle.com/wp-content/uploads/2026/03/The-Untapped-Grid-Mar-2026.pdf (finding that improving system utilization accelerates speed to market for new loads, avoids shifting costs to other consumers, and mitigates stranded asset risks).
[6] As of March 2026, 20 states had approved at least one large load tariff, and another nine states had pending large load tariffs. See Edison Electric Institute, Comments, Docket No. RM26-4-000, at 2 (filed Mar. 12, 2026).
[7] See Interconnection of Large Loads to the Interstate Transmission Sys., 195 FERC ¶ 61,045 (2026) (Order Regarding Intent to Act).