NEPGA Files Motion to Lodge D.C. Circuit Opinion in Test Price Proceeding – No. ER19-444

On January 6, 2019, NEPGA filed a Motion to Lodge the U.S. Court of Appeals for the D.C. Circuit’s (the Court) recent opinion in Exelon Corporation v. FERC into the pending FERC proceeding concerning the mitigation “test price” methodology (No. ER19-444). In Exelon, the Court remanded to FERC its orders accepting the Retirement De-List Bid process, which process requires ISO-NE to file the IMM’s estimate of a competitive Retirement De-List Bid, rather than the Market Participant’s, under Section 205 of the Federal Power Act (D.C. Cir. No. 17-1275). Exelon appealed the Retirement De-List Bid orders on that issue, arguing that the FPA gives the capacity supplier, not ISO-NE, the right to file its de-list bid price under Sec. 205. In its orders, FERC took the position that ISO-NE, not the supplier, is entitled to file the IMM’s rate under Sec. 205. In its opinion, however, the Court recounts the oral argument, during which FERC counsel explains to the Court that the underlying orders on appeal should be read to be consistent with Exelon’s interpretation of the FCA, in so much as FERC agrees that a supplier rate, upon a finding that it is just and reasonable, must be offered into the FCA in lieu of the IMM’s regardless of whether the IMM’s proposed de-list bid price is likewise just and reasonable. Upon questions from the bench, FERC counsel several times confirmed this apparent change in FERC’s interpretation of its own underlying orders – that it is the supplier, not ISO-NE, with the burden (and right) to show that its rate is just and unreasonable (i.e., a standard that mirrors the Sec. 205 filing requirement). On remand, the Court summarizes the question it poses to FERC: “[D]oes a supplier’s rate enter the [FCA] so long as it convinces the Commission that the rate is just and reasonable, over contrary claims of the market monitor?” The Court ordered FERC to issue an order on remand by February 1, recognizing the need for clarification in advance of the FCA 14 Retirement De-List Bid window in March. On Monday, NEPGA moved to lodge the opinion into the pending proceeding on ISO-NE’s and its IMM’s “test price” proposal, a modification to the mitigation methodology for purposes of participation in the FCM’s Substitution Auction (SA). Under ISO-NE’s proposal, the Market Participant is required to submit a test price (intended to essentially reflect a competitive Retirement De-List Bid offer), and if it differs from the IMM’s estimate of a competitive test price for that resource, ISO-NE will file the IMM’s test price under FPA Section 205. The test price proceeding therefore concerns an analogous, if not the same issue raised in Exelon, namely whether ISO-NE may substitute its rate (or the IMM’s) for filing an acceptance by FERC under FPA Section 205.

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