Commissioner James Danly Statement
October 21, 2021
Docket No. EL21-40-000, TX21-1-0
I concur in today’s order because it reaches the right result.[1] The Commission declines to issue a rule or order requiring the Tennessee Valley Authority (TVA) to offer unbundled transmission service to petitioners or to outside power suppliers to serve load within the TVA Fence under section 211A[2] of the Federal Power Act (FPA).[3] The Commission also denies petitioners’ request for relief pursuant to sections 306, 307, 308, and 309 of the FPA.[4]
While this was the right outcome, the Commission probably does not have the authority under FPA section 211A to issue such an order. As stated by TVA, while FPA section 211A authorizes the Commission to require government-owned utilities to provide the type of service petitioners seek, FPA section 211A is limited by FPA section 212(j),[5] which prohibits the Commission from ordering TVA to deliver non-TVA power to load inside the TVA Fence.[6] TVA also asserts that FPA section 211A conflicts with TVA Act,[7] which precludes TVA from selling or delivering power to customers outside the TVA Fence.[8]
It should be evident that granting this petition would have significantly altered the TVA system established by Congress. When possible, conflicting statutory provisions must be interpreted in harmony with one another.[9] In my view, this order arrives at the right result in this regard.
For these reasons, I respectfully concur.
[1] Athens Utils. Bd., 177 FERC ¶ 61,021 (2021).
[2] 16 U.S.C. § 824j-1. FPA section 211A authorizes the Commission to require an “unregulated transmitting utility” to provide transmission services at rates that are comparable to those it charges itself, and on terms and conditions that are comparable and are not unduly discriminatory or preferential. Id. § 824j-1(b).
[3] Athens Utilities Board, Gibson Electric Membership Corporation, Joe Wheeler Electric Membership Corporation (Joe Wheeler), and Volunteer Energy Cooperative filed a petition (collectively, petitioners) seeking a Commission order requiring TVA to provide transmission service under FPA section 211A, 16 U.S.C. § 824j-1, and interconnection service under section 210 of the FPA, 16 U.S.C. § 824i. Joe Wheeler is no longer a petitioner in this proceeding. See Petitioners January 1, 2021 Complaint and Petition for Order, Docket Nos. EL21-40-000, et al., at 1-2; Petitioners October 15, 2021 Motion for Leave to Supplement the Record and Supplement of Petitioners, Docket Nos. EL20-40-000, et al., at 2, n.1.
[4] 16 U.S.C. §§ 825e, 825f, 825g, and 825h.
[5] 16 U.S.C. § 824k(j).
[6] TVA February 22, 2021 Protest, Answer and Motion to Intervene, Docket Nos. EL21-40-000, et al., at 17. Congress included a geographic area limitation (Fence) provision in section 15d(a) of the Tennessee Valley Authority Act of 1933 (TVA Act). 16 U.S.C. § 831n-4(a). A federal Consent Order dictates the particulars of TVA’s sales outside of the Fence. See Ala. Power Co., et al. v. TVA, No. CV-97-C-0885-S (N.D. Ala. 1997).
[7] 16 U.S.C. § 831, et seq.
[8] TVA February 22, 2021 Protest, Answer and Motion to Intervene, Docket Nos. EL21-40-000, et al., at 40.
[9] See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (“A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing a ‘clearly expressed congressional intention’ that such a result should follow.”) (quoting Vimar Seguros y Reaseguros. S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)); Kapela v. Newman, 649 F.2d 887, 891 (1st Cir. 1981) (Breyer, J.) (“[I]t is important to interpret the two statutes in a way that minimizes . . . conflicts and harmonizes the policies that underlie them.”); see also N.Y. Shipping Ass’n, Inc. v. Fed. Maritime Comm’n, 854 F.2d 1338, 1367-68 (D.C. Cir. 1988) (holding that an agency’s obligation to regulate in the public interest “incorporates an obligation to consult those aspects of the public interest reflected in statutes administered by others”).