The Sierra Club, Southern Alliance for Clean Energy and 11 other opponents of the Southeast Energy Exchange Market (SEEM) called on FERC to either clarify its March 14 order to update the market’s agreement or allow a rehearing of what they described as a novel legal theory put forward by the commission (ER21-1111-006, et al.).
The April 14 requests by the opponents, jointly filing as the ad hoc Public Interest Organizations (PIOs), arrived the same day as a response filed by SEEM members to FERC’s order. (See SEEM Members File Market Agreement Update.)
That response was an update to the SEEM agreement confirming that utilities may participate in the market via pseudo-ties, addressing a concern of the D.C. Circuit Court of Appeals about the agreement’s requirement that participants have a source or sink physically located within the market’s territory.
The PIOs’ filing concerns a different part of the March 14 order, which FERC issued following briefings from supporters and opponents of SEEM. In the order, FERC affirmed its earlier decision that SEEM’s open access transmission tariff is “consistent with or superior to the pro forma OATT,” justifying the assessment on the basis of the commission’s comparability standard, which FERC said “requires that comparable service be provided to comparable customers.”
This description of the comparability standard is the crux of the PIOs’ filing, which accused FERC of inventing a new definition by adding the term “comparable customers.” The PIOs noted that when FERC initially articulated the standard in 1994, it said that an OATT “should offer third parties access on the same or comparable basis, and under the same or comparable terms and conditions, as the transmission provider’s uses of its system.” At no point since then has the commission used the “comparable customers” language, the PIOs said.
“Nothing in the March 14 order indicates that the commission intended to modify its precedent regarding” the comparability standard or the alternative undue discrimination analysis of “whether utilities and their native load customers are similarly situated to third parties,” the PIOs continued.
Further, they argued that the same paragraph seems to switch between the two frameworks, finding that “entities located outside the SEEM footprint are not similarly situated to [those within], which justifies SEEM’s requirement that the former utilize a pseudo-tie to participate.” The discrepancy indicates that FERC’s order “did not intend to apply the comparability standard at all,” they said.
To address this “potential confusion,” the PIOs said FERC should clarify the March 14 order. They suggested doing so by removing the sentence that mentions the comparability standard, which would confirm that only the undue discrimination analysis should be applied.
If the commission did intend to apply the comparability standard, it should allow a limited rehearing of the relevant sentence and “modify the discussion to retract this unexplained and unjustified departure from its practice and precedent,” the PIOs argued. Such action is needed to address what they called FERC’s arbitrary and capricious redefinition of the standard.