The American Public Power Association, joined by the Large Public Power Council and National Rural Electric Cooperative Association, recently protested a petition filed by EDF Renewables seeking an order from FERC to reinstate the company’s solar plus storage project to Salt River Project's interconnection queue.
APPA, LPPC, and NRECA each have members that are non-public utilities, that is, utilities that Congress exempted from the Commission’s jurisdiction pursuant to Federal Power Act section 201(f).
Under FERC jurisdictional terminology, “public utilities” refers to utilities that fall under its jurisdictional purview – e.g., investor-owned utilities.
The EDF Renewables’ petition essentially asks FERC to exercise, pursuant to sections 205 and 206 of the Federal Power Act, jurisdiction over a public power utility's generator interconnection procedures.
Public power utilities are generally exempt from FERC's ratemaking authority under those sections and are not required to comply with FERC rulemakings, including Order 2023's generator interconnection reforms.
However, based on a 30-year-old precedent, FERC requires non-jurisdictional transmission owners to offer "reciprocal" transmission service as a condition for taking transmission service from jurisdictional transmission owners. Reciprocity is not a requirement to comply with FERC's orders or to file tariffs with FERC -- although doing so is one way to satisfy the reciprocity condition.
In their protest, APPA, NRECA and LPPC said that this is “an easy petition for the Commission to dismiss.”
They said that granting EDF’s request would contradict decades of settled Commission precedent.
The Commission established the reciprocity principle nearly three decades ago, not as an obligation for non-public utilities to comply with Commission orders issued pursuant to Federal Power Act sections 205 and 206, but rather as a condition that jurisdictional transmission providers may impose on non-public utilities who take open access transmission service, the groups said.
“Starting with first principles: Congress explicitly excluded public power utilities, most cooperative utilities, and federal power marketing agencies from the requirements of Part II of the Federal Power Act, unless a requirement specifically references such non-public utilities. The Commission and the courts have consistently held that the Commission may not regulate a non-public utility’s rates, terms, or conditions for transmission service.”
This statutory limitation on the Commission’s jurisdiction over non-public utilities played an important role in Order No. 888, APPA and the other groups said.
“To remedy systemic undue discrimination by transmission owners, the Commission proposed to require all public utilities owning or controlling transmission facilities to file open access transmission tariffs.”
But the Commission declined to extend the requirement to non-public utilities, noting it has no authority under sections 205 and 206 to require non-public utilities to file tariffs with the Commission.
FERC nevertheless sought to encourage non-public utilities to provide access to their transmission systems, so it established the reciprocity condition: a public utility offering open access transmission service to a non-public utility could condition that service on an agreement by the non-public utility to offer comparable transmission service in return. “Reciprocity was not designed as an obligation for non-public utilities to file open access transmission tariffs,” the groups said in their protest.
“Importantly, the Commission made clear that the reciprocity condition could be satisfied by a non-public utility offering comparable, not identical, service to a public utility transmission provider,” they said.
The groups noted that Section 6 of the Commission’s pro forma OATT specifies that the condition is for the non-public utility to provide comparable transmission service that it is capable of providing to the Transmission Provider on similar terms and conditions over the non-public utility’s transmission facilities.
In a subsequent rulemaking proceeding, the Commission confirmed that the rates, terms and conditions of the reciprocal service are not required to be identical to those offered by the public utility.
“In ruling on EDF’s petition in this proceeding, the Commission should acknowledge and reaffirm these core principles of reciprocity,” the groups argued.
They also said that reciprocity does not confer jurisdiction to the Commission over a non-public utility or its tariff.
“EDF does not stop with its request for an unnecessary declaration. EDF goes on to request extraordinary relief: that the Commission order SRP to reinstate its Rainbow Valley project to SRP’s interconnection queue,” the protest said.
“The Federal Power Act prohibits the Commission from granting EDF’s request. In Order No. 888 and in many successive orders, the Commission has explicitly stated that the reciprocity condition does not expand the Commission’s jurisdiction over non-public utilities or their tariffs. Even in cases where a non-public utility has a safe harbor tariff on file with the Commission, the Commission has no authority to enforce it,” APPA, NRECA and LPPC said.
The groups said that “relief here is squarely controlled by the Commission’s decision” in a 2020 case that involved the developer of a wind generating facility that was seeking to interconnect with the transmission system of what was then a non-public utility.
The non-public utility had filed a safe harbor reciprocity tariff two decades earlier, but had chosen not to update the safe harbor tariff. The developer complained that the non-public utility’s failure to comply with the Commission’s 2003 generator interconnection reforms had resulted in the wind facility’s removal from the non-public utility’s interconnection queue.
The developer requested the same extraordinary relief that EDF requests in the instant case: restoration to the non-public utility’s queue.
“The Commission properly denied relief for the period when the transmission owner was a non-public utility,” the groups said.
The Commission acknowledged that the non-public utility had not maintained its safe harbor status but held that this fact does not entitle the developer to the relief it seeks.
FERC said that the sole relief available for reciprocity infractions is a Commission order permitting the transmitting public utility prospectively to discontinue open access service to the non-reciprocating utility.
“The same result must apply in the instant proceeding. Even acknowledging that SRP’s safe harbor status has lapsed, this does not justify ordering SRP to retroactively restore EDF’s project to the interconnection queue,” the groups said.
