The Federal Energy Regulatory Commission has turned aside a petition for a declaratory order that could have significantly expanded what qualifies as transmission of electric energy in interstate commerce subject to FERC’s jurisdiction under the Federal Power Act (FPA). FERC said that the proposal, which involved transportation of battery components on trains or other modes of transport, was premature and lacked an adequate level of detail.
In May, Alternative Transmission Inc. (ATI) filed a petition for declaratory order at FERC describing an “alternative transmission process” in which a flow battery would first be charged with electrical energy, then the electrolyte from the flow battery would be removed and transported across state lines by rail, truck, boat, or airplane (or some combination thereof) (Docket No. EL19-69-000).
As the last step in the process, the electrolyte would be placed into a flow battery at another location and converted back to electrical energy available for dispatch.
ATI sought a ruling by the Commission that the alternative transmission facilities and services described in the petition provide “transmission of electric energy in interstate commerce” subject to the Commission’s jurisdiction under Parts II and III of the FPA and that ATI as the owner or operator of the described facilities will be a “public utility” under Parts II and III of the FPA. ATI argued that that the FPA does not expressly restrict FERC’s jurisdiction over transmission of electric energy to energy moved by wires.
Association argued for dismissal of petition
The American Public Power Association argued in an early June filing that the petition should be turned aside by the Commission because it did not present an appropriate case for a declaratory ruling.
If FERC chose not to dismiss the petition filed by ATI outright, FERC should conclude that ATI failed to demonstrate that the services described in the petition provide “transmission of electric energy in interstate commerce” or that ATI’s facilities will be jurisdictional transmission facilities, the Association said.
“The petition is insufficiently developed and, at best, premature,” the public power trade group said. “Virtually no information is provided about ATI itself, let alone any indication that it would have the resources to implement the kinds of services discussed in the petition.” APPA pointed out that the petition did “not appear to have been prompted by a particular planning need or opportunity in a transmission planning region.”
ATI also failed to sufficiently demarcate the facilities that would be deemed jurisdictional transmission facilities under its “alternative transmission” process, the Association told FERC.
FERC agrees with arguments made by the Association and others
Agreeing with the arguments made by the Association and others that the petition was premature, FERC issued an order on Aug. 22 in which it dismissed the ATI petition.
The Commission has previously stated that, for non-traditional assets that may not readily fit into only one of the traditional asset functions of generation, transmission, or distribution, it addresses the classification of such resources on a case-by-case basis.
FERC noted that it previously dismissed as premature a petition where an applicant has provided insufficient information. It pointed to a Commission decision involving Nevada Hydro Company, Inc., which petitioned the Commission for a declaratory ruling that its proposed pumped storage facility would qualify as a transmission facility.
FERC found that the applicant’s arguments for why its proposed pumped storage facility should be considered transmission were too general to support such a finding. The Commission also dismissed the petition because the proposed pumped storage facility had not been studied in the California Independent System Operator transmission planning process to determine whether it addressed a transmission need identified in the process or how the facility would be operated to address that need.
Applying this precedent to the ATI filing, FERC found that “ATI’s petition provides only a hypothetical example of the proposed alternative transmission facilities and services and does not include a detailed description of the function and operation of the specific facilities that ATI claims would provide jurisdictional transmission service.”
“Furthermore, ATI has neither identified the specific transmission planning region where it wishes to participate, nor a specific transmission need identified as a result of a regional transmission planning process.”
“We find that, absent such information, the Commission cannot make a reasoned decision on whether ATI’s proposed facilities and services would, in fact, provide ‘transmission of electric energy in interstate commerce’ or whether ATI would, in fact, qualify as a public utility under section 201(e) of the FPA,” FERC said.
FERC therefore dismissed ATI’s petition as premature.