Commissioner Moeller Statement September 1, 2015 Docket No. ER15-1934-000

Northeast Energy Associates Request for Waiver

“NEA maintains that it should be granted a tariff waiver because it failed to satisfy a Forward Capacity Market (FCM) deadline due to an administrative oversight. But Commission precedent makes clear that an “[a]dministrative oversight is not a sufficient basis to justify waiving an express deadline.”¹ The majority attempts to differentiate this case by arguing that NEA “remedied that administrative error” by submitting the necessary interconnection deposit after the Show of Interest form deadline. But this consideration is not sufficient to justify granting the waiver, as the Commission has rejected waiver requests where the relevant party could remedy the underlying administrative error in similar circumstances.²

“Rather, in rejecting similar waiver requests, the Commission has repeatedly stated that “it is important to abide by the FCM rules, including deadlines, in order to enable ISO-NE to effectively administer the FCM.”³ The majority attempts to argue that waiver is appropriate here because NEA satisfied other relevant deadlines and allowing NEA to submit its Show of Interest form late will not delay the upcoming auction. But this justification ignores the uncertainty introduced into ISO-NE’s administration of its FCM in the future if the Commission continues to refuse enforcing ISO-NE tariff deadlines and to grant tariff waivers over ISO-NE’s objections, as the majority has done here.⁴ Such actions also directly contradict the Commission’s reasoning in denying similar tariff waivers.⁵

“In its protest to NEA’s waiver request, ISO-NE points out that granting the request would result in unfavorable treatment of other project sponsors who submitted invalid Interconnection Requests. The majority responds that NEA promptly remedied the defect in its Interconnection Request, but this argument is simply not responsive. In rejecting similar waiver requests, the Commission has properly recognized that granting such waivers would result in unduly favorable treatment as compared to (1) market participants who abided by ISO-NE’s tariff requirements and deadlines and (2) market participants who similarly missed relevant deadlines but failed to receive tariff waivers.⁶ What about the other market participants who have committed similar administrative errors who did not attempt to seek a tariff waiver because they understood such requests to be contrary to relevant Commission precedent? With this decision, the majority has chosen to put market participants who may have committed identical administrative errors, but chose not to burden the Commission and its staff with unjustified tariff waivers, at a disadvantage.

“By granting NEA’s request for tariff waiver, notwithstanding Commission precedent to the contrary and ISO-NE’s well-founded opposition, I fear that today’s order will encourage market participants to submit more requests for tariff waivers. Such requests will present the Commission with an enormous challenge to ensure that all market participants are treated similarly after missing an FCM or other deadline.

“Accordingly, I respectfully dissent.”

                                               

¹See, e.g., GDF SUEZ Energy Marketing, NA, 149 FERC ¶ 61,165 (2014); Mass. Municipal Wholesale Elec. Co., 148 FERC ¶ 61,227 (2014); Seneca Energy II, LLC, 138 FERC ¶ 61,226 (2012).

² For instance, only two days after the relevant FCM deadline, Seneca Energy II, LLC (Seneca) attempted to remedy its administrative error in failing to submit a complete Show of Interest form to ISO-NE; the Commission subsequently denied Seneca’s waiver request. Seneca Energy II, LLC, 138 FERC ¶ 61,226.

³GDF SUEZ Energy Marketing, NA, 149 FERC ¶ 61,165 at P 11.

⁴There is no basis to conclude that granting NEA’s waiver would benefit third parties or would provide capacity needed in the Southeastern New England Capacity Zone.

⁵For instance, in denying a tariff waiver request by Massachusetts Municipal Wholesale Electric Company, the Commission explained that “granting its request here could have broad ramifications, by allowing waiver of Tariff provisions based on nothing more than an applicant’s bare claim of administrative oversight, and by granting waiver over the objections of the public utility whose tariff is being waived.” Mass. Municipal Wholesale Elec. Co., 148 FERC ¶ 61,227 at P 14.

⁶GDF SUEZ Energy Marketing, NA, 149 FERC ¶ 61,165 at P 13.