Green Development, LLC v. FERC ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2023 Decided July 28, 2023
No. 22-1108
GREEN DEVELOPMENT, LLC,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
NEW ENGLAND POWER COMPANY, D/B/A NATIONAL GRID,
INTERVENOR
Consolidated with 22-1161
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Omar Bustami argued the cause for petitioner. With him
on the briefs was Anthony P. Campau.
Matthew W.S. Estes, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.
2
MaryAnn T. Almeida argued the cause for respondent-
intervenor New England Power Company, d/b/a National Grid.
With her on the brief was David M. Gossett.
Before: HENDERSON, PILLARD and KATSAS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Green Development, LLC (Green Development) is a developer
of solar generation facilities located in Rhode Island. To
connect the projects to the electricity grid, Green Development
sought interconnection with the distribution system of
Narragansett Electric Company (Narragansett), a public utility.
Accommodation of the increased flows of electricity required
certain upgrades to the transmission system owned by
Respondent-Intervenor New England Power Company d/b/a
National Grid (NE Power) in order to ensure the continued safe
and reliable service of Narragansett’s load.
As the transmission owner, NE Power assigned the costs
of the transmission system upgrades directly to Narragansett,
the transmission customer, pursuant to the ISO New England
Tariff, which governs the provision of transmission service in
New England. The newly assigned costs were reflected in a
revised transmission service agreement (TSA) that NE Power
and Narragansett filed for approval by the Federal Energy
Regulatory Commission (Commission or FERC). Green
Development protested the revised TSA, objecting to the
“direct assignment facility” charge for the upgrades because
under a separate, state-jurisdictional interconnection
agreement governing the solar projects, Narragansett will pass
through to Green Development any costs of the transmission
system upgrades paid by Narragansett. The Commission
3
denied Green Development’s protest and concluded that the
upgrades’ costs are properly assigned to Narragansett, the sole
benefitting transmission customer, rather than spread across all
customers as “network upgrades.”
Green Development petitions for review of the relevant
FERC orders. Respondent FERC defends the underlying orders
as reasonable, as does Intervenor NE Power. As detailed infra,
each of Green Development’s four grounds for vacatur lacks
merit. Accordingly, we deny the petitions for review.
I. Background
The Federal Power Act (FPA) grants FERC exclusive
jurisdiction of the transmission and wholesale sale of electricity
in interstate commerce. See 16 U.S.C. § 824(b). To enforce the
FPA’s requirements that charges made in connection with the
jurisdictional transmission of electric energy be “just and
reasonable” and not unduly discriminatory, see id. § 824d(a)–
(b), section 205 requires that utilities file tariffs reflecting their
rates and service terms with the Commission for review, id.
§ 824d(c). The Commission has exclusive jurisdiction of
transmission facilities but not of distribution facilities. See id.
§ 824(b)(1). 1
“In order to foster a more competitive, efficient market for
electricity,” FERC issued Order No. 888, requiring
1
“FERC has jurisdiction over both the interstate transmission
of electricity and the sale of electricity at wholesale in interstate
commerce.” Niagara Mohawk Power Corp. v. FERC, 452 F.3d 822,
824 (D.C. Cir. 2006) (citing 16 U.S.C. § 824(b)(1)). “States retain
jurisdiction over retail sales of electricity and over local distribution
facilities.” Id. “Thus transmission occurs pursuant to FERC-
approved tariffs; local distribution occurs under rates set by a state’s
public service commission.” Id.4
transmission providers to “open their networks to transmission
customers.” Entergy Servs., Inc. v. FERC, 391 F.3d 1240, 1243
(D.C. Cir. 2004); see Promoting Wholesale Competition
Through Open Access Nondiscriminatory Transmission
Services by Public Utilities, 61 Fed. Reg. 21540 (May 10,
1996) (Order No. 888). “To effectuate this introduction of
competition, FERC required public utilities to ‘functionally
unbundle’ their wholesale generation and transmission services
by stating separate rates for each service in a single tariff and
offering transmission service under that tariff on an open-
access, non-discriminatory basis.” Midwest ISO Transmission
Owners v. FERC, 373 F.3d 1361, 1364 (D.C. Cir. 2004) (citing
New York v. FERC, 535 U.S. 1, 11 (2002)). Order No. 888
encouraged the creation of independent service operators
(ISOs) to “assume operational control—but not ownership—of
the transmission facilities owned by its member utilities” in
order to “provide open access to the regional transmission
system to all electricity generators at rates established in ‘a
single, unbundled, grid-wide tariff that applies to all eligible
users in a non-discriminatory manner.’” Id. (quoting Order No.
888, 61 Fed. Reg. at 21596). As relevant here, ISO New
England Inc. is the private, non-profit entity authorized by
FERC “to administer New England energy markets and operate
the region’s bulk power transmission system.” NSTAR Elec. &
Gas Corp. v. FERC, 481 F.3d 794, 796 (D.C. Cir. 2007); see
generally Emera Me. v. FERC, 854 F.3d 9, 16 (D.C. Cir. 2017).
It sets forth its rates for access to the transmission system in the
ISO New England Transmission, Markets and Services Tariff
(Tariff). ISO New England Inc., 178 FERC ¶ 61,115 at PP 3–4
(2022) (February 2022 Order); see J.A. 192. The Tariff
establishes a two-tier transmission arrangement that integrates
regional service, provided by ISO New England, with local
network service, provided by participating transmission
owners (here, NE Power) under its Schedule 21. February 2022
Order, 178 FERC ¶ 61,115 at P 3.
5
“When power generators build new facilities or update
their existing facilities, they need to connect those facilities to
the power grid. That connection in turn often requires
transmission owners to upgrade their power lines to
accommodate the power influx.” Am. Clean Power Ass’n v.
FERC, 54 F.4th 722, 723–24 (D.C. Cir. 2022) (citing Ameren
Servs. Co. v. FERC, 880 F.3d 571, 572 (D.C. Cir. 2018)). To
determine which entity pays for such transmission upgrades,
the Tariff distinguishes “Direct Assignment Facilities”—which
are paid for by the sole benefitting transmission customer, see
Tariff § I.2.2—from “Network Upgrades” that are for the
general benefit of all users of the transmission system and
therefore recovered from all transmission customers
collectively, see Tariff, Schedule 21-NEP § I.1.16.
Green Development is building four solar-generation
projects in Rhode Island, all located at the same address and
producing roughly 40 megawatts (MW) of power in total.
February 2022 Order, 178 FERC ¶ 61,115 at P 7. Rather than
connect directly to NE Power’s higher-voltage transmission
grid, as is usually done, Green Development sought to
interconnect its projects to Narragansett’s lower-voltage
distribution system, which is designed to deliver power to end-
user customers. See id. Narragansett and NE Power, the
transmission service provider, studied Green Development’s
proposed projects and concluded that the projects could not be
safely and reliably connected to Narragansett’s distribution
system without upgrades to both the existing distribution
system and the existing transmission system. J.A. 438. The
transmission upgrades, which are the upgrades sub judice,
include a new power substation, known as the Iron Mine Hill
Road substation, and related modifications to existing
transmission facilities. February 2022 Order, 178 FERC
¶ 61,115 at P 7.
6
Pursuant to the Tariff, NE Power, the transmission owner,
assigned the costs of the transmission system upgrades entirely
to Narragansett, the transmission customer, as “Direct
Assignment Facilities.” Id. at P 8. Due to Narragansett’s Rhode
Island state-jurisdictional tariff, however, Green Development
will ultimately bear the direct assignment facility charges, with
estimated annual costs of $514,740 (approximately $18 million
over the life of the projects). See Green Dev., LLC, 176 FERC
¶ 61,193 at P 9 (2021) (Complaint Order).
In February 2021, pursuant to section 206 of the FPA, 16
U.S.C. § 824e(b), Green Development challenged the direct
assignment of the upgrades in a complaint filed with the
Commission. The Commission concluded that Green
Development had “not met its burden of proof under section
206” to demonstrate that the upgrades were not being
constructed for the sole use or benefit of Narragansett.
Complaint Order, 176 FERC ¶ 61,193 at PP 54–55; see
16 U.S.C. § 824e(b) (complainant bears burden of proof to
support its claim). It also determined, however, that Green
Development had met its burden to show that the upgrade
facilities were required to be specified in an agreement (among
NE Power, Narragansett and ISO New England) before those
costs could be assessed to Narragansett under the Tariff
definition of “Direct Assignment Facilities.” Complaint Order,
176 FERC ¶ 61,193 at P 61. The Complaint Order accordingly
granted in part and denied in part Green Development’s
requested relief.
To comply with the Commission’s ruling that the direct
assignment facilities be specified in a separate agreement, the
filing parties submitted a revised TSA to the Commission
pursuant to section 205 of the FPA, 16 U.S.C. § 824d. February
2022 Order, 178 FERC ¶ 61,115 at P 12. Green Development
protested the filing. Id. at P 21. In the ensuing proceeding,
7
Green Development challenged the amended TSA which, as
before, directly assigned the upgrades to Narragansett. Id.The Commission issued its order approving the amended
TSA in February 2022. See generally February 2022 Order,
178 FERC ¶ 61,115. It concluded that the TSA “is just and
reasonable and not unduly discriminatory or preferential,” id.at P 55; see 16 U.S.C. § 824d, finding in pertinent part that NE
Power correctly assigned to Narragansett the transmission
upgrade costs necessary to accommodate the projects, see
February 2022 Order, 178 FERC ¶ 61,115 at PP 59–63, and
that certain processes set forth in Schedule 21-Local Service of
the Tariff were not required, see id. at P 64; see also Tariff,
Schedule 21-Local Service § II.4.b(i).
Green Development timely filed a request for rehearing.
Because FERC failed to act within 30 days, the request was
deemed denied in April 2022. 16 U.S.C. § 825l(a); 18 C.F.R.
§ 385.713(f); see ISO New England Inc., 179 FERC ¶ 62,035(2022) (citing Allegheny Def. Project v. FERC, 964 F.3d 1(D.C. Cir. 2020) (en banc)). Two months later, in June 2022,
FERC issued an order “modifying the discussion” of the
denial-of-rehearing order—i.e., explaining the reasons for the
denial and—unsurprisingly—reaching the same result. ISO
New England Inc., 179 FERC ¶ 61,186 at P 2 & n.5 (Rehearing
Order).
Two petitions for review are consolidated for review.
Green Development’s first petition seeks review of the
February 2022 order and the April 2022 denial-of-rehearing
order. Green Development’s second petition seeks review of
the June 2022 Rehearing Order. We have jurisdiction of the
petitions pursuant to section 313(b) of the FPA. 16 U.S.C.
§ 825l(b).
8
II. Analysis
Under the Administrative Procedure Act, we “shall . . .
hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). “In a ‘technical area like electricity rate design,’
we give FERC a significant degree of deference.” La. Pub.
Serv. Comm’n v. FERC, 10 F.4th 839, 845 (D.C. Cir. 2021)
(quoting FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 292
(2016)). “We must accept FERC’s factual findings if they are
‘supported by substantial evidence.’” Id. (quoting 16 U.S.C.
§ 825l(b)). “We must also defer to FERC’s reasonable
interpretation of tariffs and of its own prior orders.” Id.
(citations omitted). As to the Commission’s tariff
interpretation, we employ a “Chevron-like analysis.” Id. at
845–46 (quoting PSEG Energy Res. & Trade LLC v. FERC,
665 F.3d 203, 208 (D.C. Cir. 2011)). “Under that framework,
we must enforce unambiguous tariff language, but we defer to
FERC’s reasonable interpretation of ambiguous text.” Id.(citing PSEG, 665 F.3d at 208).
Green Development contends that the Commission
(1) erroneously concluded that Green Development’s
arguments in the underlying section 205 proceeding operated
as a “collateral attack” on the Complaint Order; (2) improperly
applied the governing seven-factor test to determine its
jurisdiction of the upgrades, which Green Development
contends are state-jurisdictional distribution facilities, not
transmission facilities; (3) misinterpreted the Tariff’s
definition of “direct assignment facilities”; and (4) erroneously
failed to apply the filing procedures of Schedule 21-Local
Service of the Tariff.
9
A. Collateral Attack
We start with Green Development’s contention that the
decision under review—the Rehearing Order, 179 FERC
¶ 61,186—improperly gave preclusive effect to the Complaint
Order. As noted supra, the Complaint Order granted in part and
denied in part the relief Green Development’s section 206
complaint sought. 176 FERC ¶ 61,193. In the Complaint
Order, the Commission held in pertinent part that Green
Development failed to meet its burden on the issue whether the
transmission system upgrades were for the sole benefit or use
of Narragansett. Id. at P 55. It also held, however, that the
upgrades were not “Direct Assignment Facilities” under the
Tariff because they had not yet been specified in a separate
agreement among ISO New England, NE Power and
Narragansett. Id. at P 61.
NE Power and ISO New England subsequently filed with
the Commission the requisite separate agreement, see February
2022 Order, 178 FERC ¶ 61,115 at P 12; see also J.A. 89
(adding new Attachment 3 to the TSA to specify the upgrades
as direct assignment facilities), and this section 205 proceeding
followed. In the section 205 proceeding, the Commission
accorded some preclusive effect to the Complaint Order,
finding that “Green Development’s arguments regarding
whether the upgrades meet the definition of Direct Assignment
Facilities represent a collateral attack on the Commission’s
order in the Green Development Complaint proceeding, and
therefore we dismiss them.” February 2022 Order, 178 FERC
¶ 61,115 at P 61. It further concluded that Green
Development’s argument regarding the filing parties’ failure to
follow Schedule 21-Local Service’s “required” procedures
represented “a collateral attack on the Complaint Order,” id. at
P 64, as did Green Development’s argument that the
Commission lacked jurisdiction of the upgrades, id. at P 66.
10
In its rehearing request, Green Development disputed the
Commission’s characterization of Green Development’s
challenge as a collateral attack on the Complaint Order. See
J.A. 162–65, 171–74; see also Rehearing Order, 179 FERC
¶ 61,186 at P 39. It argued that res judicata and collateral
estoppel doctrines did not apply because, notwithstanding
Green Development had the burden of proof in the section 206
proceeding, see 16 U.S.C. § 824e(b), NE Power had the burden
of proof in the section 205 proceeding “to show that the
increased rate or charge is just and reasonable,” id. § 824d(e).
In the Rehearing Order, however, the Commission clarified its
February 2022 order, noting:
In the February 2022 Order, the
Commission’s ruling did not solely rest on the
characterization of Green Development’s
arguments as a collateral attack. In addition, in
this order the Commission is further addressing
Green Development’s arguments. Given that
the Commission has decided each of these
issues on the merits, we believe we have
satisfied our obligation under section 205 to
ensure that the Filing Parties’ revised TSA is
just and reasonable and not unduly
discriminatory or preferential.
Rehearing Order, 179 FERC ¶ 61,186 at P 41 (emphasis
added). As the Rehearing Order relates that it “has decided
each of these issues on the merits,” id., we believe the
Commission has cured any purportedly erroneous ruling that
Green Development’s section 205 protest constituted a
collateral attack on the Complaint Order. See BDPCS, Inc. v.
FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) (“When an agency
offers multiple grounds for a decision, we will affirm the
agency so long as any one of the grounds is valid, unless it is
11
demonstrated that the agency would not have acted on that
basis if the alternative grounds were unavailable.”).
B. Commission’s Seven-Factor Test
Next, we review the Commission’s conclusion that the
upgrades at issue are FERC-jurisdictional transmission
facilities. To distinguish “Commission-jurisdictional facilities
used for transmission in interstate commerce” from “state-
jurisdictional local distribution facilities,” see Order No. 888,
61 Fed. Reg. at 21626, the Commission has identified seven
relevant factors, see id., at 21619–20. The factors are:
(1) local distribution facilities are normally in
close proximity to retail customers; (2) local
distribution facilities are primarily radial[2] in
character; (3) power flows into local
distribution systems, and rarely, if ever, flows
out; (4) when power enters a local distribution
system, it is not reconsigned or transported onto
some other market; (5) power entering a local
distribution system is consumed in a
comparatively restricted geographic area;
(6) meters are based at the transmission/local
distribution interface to measure flow into the
local distribution system; and (7) local
distribution systems will be of reduced voltage.
S. California Edison Co., 153 FERC ¶ 61,384 at P 4 (2015).
2
A radial line is “a transmission or distribution line that carries
power in only [one] direction, similar to a one-way street.” Sw.
Power Pool, Inc., 149 FERC ¶ 61,051 at P 19 (2014) (quotation
omitted).
12
Green Development contends that the Commission “failed
to give comprehensive consideration as to how the totality of
the circumstances bears on each of FERC’s seven factors for
determining whether facilities are FERC-jurisdictional
transmission facilities or state-jurisdictional distribution
facilities.” Pet’r Br. 45. 3 The Commission’s Rehearing Order,
however, comprehensively analyzed and applied each of the
factors to the identified upgrades. See Rehearing Order,
179 FERC ¶ 61,186 at PP 15–16 (evaluating factor one),
PP 17–18 (evaluating factor two), PP 19–20 (evaluating factor
three), PP 21–22 (evaluating factors four and five), PP 23–24
(evaluating factor six), PP 25–26 (evaluating factor seven). The
Commission concluded that six factors indicated FERC-
jurisdictional status, with only factor six being inconclusive. Id.at P 27. We “must accept FERC’s factual findings if they are
‘supported by substantial evidence.’” La. Pub. Serv. Comm’n,
10 F.4th at 845 (quoting 16 U.S.C. § 825l(b)).
Substantial evidence supports the Commission’s
conclusion that the upgrades are jurisdictional transmission
facilities. The Commission explained that the upgrades operate
at the same voltage as the surrounding transmission
infrastructure and allow power to flow freely into and out of
the substation and transmission system. Rehearing Order,
179 FERC ¶ 61,186 at PP 12, 20, 25; see also February 2022
Order, 178 FERC ¶ 61,115 at PP 68–70. Moreover, the
facilities are not connected to end users; rather, they facilitate
3
FERC argues that Green Development waived its challenge
to the jurisdictional status of the upgrades by failing to contest in its
opening brief the February 2022 order’s ruling that its jurisdictional
challenge represented a collateral attack on the Complaint Order. See
Resp. Br. 48–51. As explained supra, however, the Rehearing Order
read the February 2022 order’s collateral-attack rulings as having
decided the issue “on the merits.” Rehearing Order, 179 FERC
¶ 61,186 at P 41. The issue is therefore properly before us.
13
the movement of power onto a transmission line to serve
Narragansett’s retail load connected to other transmission
nodes. Rehearing Order, 179 FERC ¶ 61,186 at P 16. Because
of this configuration, most of the factors (i.e., voltage, direction
of power flow, proximity to retail customers, radial or non-
radial character) support jurisdictional status. The Commission
also explained that Green Development’s counterarguments
mainly focused on the lower-voltage 34.5-kV distribution
feeder connected to the upgrades; it is not designated as a direct
assignment facility, however, and neither its costs nor its
jurisdictional status is at issue. Id. at P 12; see also February
2022 Order, 178 FERC ¶ 61,115 at P 68.
Green Development’s objections do not overcome the
substantial deference owed the Commission on this technical
fact question. Regarding factor one, Green Development points
out that the power routed through the facilities will eventually
serve Narragansett’s retail load. Pet’r Br. 47–48. But the
critical issue is proximity to retail customers, see S. California
Edison, 153 FERC ¶ 61,384 at P 4, not whether power will
eventually serve them. The Commission reasonably explained
that the facilities have no proximate connection to retail
customers because their purpose is to move power onto a
transmission line. Regarding factor two, Green Development
asserts that the Commission’s conclusion was insufficiently
reasoned but provides no affirmative argument that the
facilities have a radial character. See Pet’r Br. 48–50. We thus
have no reason to discount the Commission’s conclusion,
which drew on studies diagramming the upgrades to conclude
that they are not radial in character. Rehearing Order,
179 FERC ¶ 61,186 at PP 17–18. Regarding factor three, the
Commission explained that “[p]ower will flow into the Iron
Mine Hill Road Substation and associated facilities from the
34.5-kV distribution feeder and will then flow out onto the H17
transmission line.” Id. at P 20. Green Development faults the
14
Commission for failing to quantify these power flows but it
does not dispute the Commission’s qualitative analysis, which
shows that the upgrades will handle significant power inflows
and outflows. The Commission also reasonably explained that
factors four and five support jurisdictional status because
power entering the facilities will flow over what are
concededly FERC-jurisdictional transmission lines before
being distributed to retail customers. Id. at PP 21–22. And
Green Development offers nothing to cast doubt on the
Commission’s conclusion that factor seven supports
jurisdictional status because the facilities operate at the same
voltage as the surrounding transmission infrastructure. Finally,
although the Commission acknowledged that factor six is more
equivocal, id. at P 24, it reasonably concluded that the totality
of the factors favors jurisdiction. The Commission’s
conclusion was thus supported by substantial evidence.
C. Direct Assignment Facilities
Next, we address Green Development’s challenge to the
Commission’s conclusion that the transmission system
upgrades are “direct assignment facilities” under the Tariff’s
governing definition. As discussed supra, under the Tariff,
upgrades to a transmission system fall into one of two
categories: (1) direct assignment facilities, whose costs are
assessed directly (solely) to the benefitting transmission
customer; or (2) network upgrades, whose costs are shared
among the benefitting transmission customers.
The Tariff treats a facility as a direct assignment facility if
it meets two criteria:
(1) it is “constructed for the sole use/benefit of
a particular Transmission Customer requesting
service under the OATT [Open-Access
15
Transmission Tariff] or a Generator Owner
requesting an interconnection”; and
(2) it is “specified in a separate agreement
among the ISO, Interconnection Customer and
Transmission Customer, as applicable, and the
Transmission Owner whose transmission
system is to be modified to include and/or
interconnect with the Direct Assignment
Facilities.”
Tariff § I.2.2. On review, Green Development challenges only
the first criterion, arguing that the upgrades cannot constitute
direct assignment facilities because “those upgrades must be
caused by and directly attributable to a particular customer
requesting service.” Pet’r Br. 25 (emphasis in original). Green
Development relies on the present-participle tense of the
Tariff’s “requesting service” language, see id. at 24–32, to
support its position that a direct assignment facility must be
associated with a “contemporaneous request for transmission
service.” Id. at 26 (emphasis in original).
The Commission rejected Green Development’s
interpretation, holding:
Although the phrase “Transmission Customer
requesting service under the OATT” would
include a new Transmission Customer seeking
service under the OATT for the first time, we
think it equally reasonable to read the participle
phrase “requesting service” in the definition’s
reference to facilities “constructed for . . . a
particular Transmission Customer requesting
service” to equally include an existing
Transmission Customer that has previously
16
formally requested and received service under
the OATT.
Rehearing Order, 179 FERC ¶ 61,186 at P 32.
We first determine whether the Tariff “unambiguously
addresses” the matter at issue. PSEG, 665 F.3d at 208 (quoting
Colo. Interstate Gas Co. v. FERC, 599 F.3d 698, 701 (D.C. Cir.
2010)). Because the Tariff does not, we “defer to the
Commission’s construction of the provision at issue so long as
that construction is reasonable.” Id. (quoting Colo. Interstate,
599 F.3d at 701). Here, the Commission’s interpretation is
reasonable because it properly serves the purpose of direct
assignment, which “protects all network users from unfairly
subsidizing facilities that benefit a single user.” S. Co. Servs.,
Inc., 116 FERC ¶ 61,247 at P 17 (2006). This purpose would
not be served if a single benefitting transmission customer
could avoid bearing the costs of the facilities based solely on
the timing of its transmission request.
D. Schedule 21-Local Service Filing Procedure
Finally, we reject Green Development’s fourth claim,
namely, that the filing parties failed to file a new application
for transmission service pursuant to Schedule 21-Local Service
of the Tariff. See generally Tariff, Schedule 21-Local Service.
Schedule 21-Local Service sets out the general conditions
applicable to an eligible customer requesting “Local Network
Service” from NE Power. Complaint Order, 179 FERC
¶ 61,186 at P 6. Green Development contends that NE Power
failed to comply with the requirements of Schedule 21-Local
Service before assessing a direct assignment facility charge for
the Upgrades. Specifically, Schedule 21-Local Service requires
a “System Impact Study” (SIS) to be completed to “identify
any system constraints, additional Direct Assignment Facilities
or Local Network Upgrades required to provide the requested
17
service.” Tariff, Schedule 21-Local Service § II.7.c. And
section II.4.b(i) of Schedule 21-Local Service provides:
A Transmission Customer who wishes
to . . . make upgrades (i.e., increase MWs
served) within the terms of the existing Local
Service Agreement under this Schedule 21,
shall not be required execute [sic] a new Local
Service Agreement under this Schedule 21,
however, modifications to the existing Local
Service Agreement under this Schedule 21 may
be required. Such modifications to an existing
Local Service Agreement typically do not
require an additional Local or Regional System
Impact Study to be completed. The
Transmission Customer shall complete (and
submit to the ISO) an application for Local
Transmission Service that reflects the requested
modifications to the Local Service Agreement
to facilitate revision of its existing Schedule 21
Local Service Agreement.
Tariff, Schedule 21-Local Service § II.4.b(i).
Here, Green Development asserts, Narragansett failed to
complete and submit an application for Local Transmission
Service reflecting the revised modifications, i.e., the upgrades
at issue, to “facilitate revision” of the TSA. Pet’r Br. 38.
Moreover, Green Development contends, ISO New England
and NE Power failed to complete the required SIS before
identifying the direct assignment facility charges in the revised
TSA. See id.; see also id. at 11–13 (identifying Schedule 21-
Local Service’s purportedly mandatory process for identifying
direct assignment facilities). In light of these two deficiencies,
Green Development contends, the Commission should have
18
rejected the revised TSA because the direct assignment facility
charges constitute a departure from the filed rate. See id. at 38
& n.10.
The problem with Green Development’s contention,
however, is that it presumes that the procedures in Schedule
21-Local Service, including the completion of both a new
application for Local Transmission Service and an additional
SIS, are “mandatory processes” that applied to the filing of the
TSA. See id. at 38. But, as the Commission explained in the
Complaint Order, the SIS and associated technical
arrangements “pertain to initiating transmission service,” and
“do not demonstrate that Narragansett as an existing
transmission customer was required to request new
transmission service” under the Tariff. Complaint Order,
176 FERC ¶ 61,193 at P 57 (emphasis added). “Further,” the
Complaint Order observed, “Schedule 21-LS [Local Service]
contemplates that modifications to an existing service
agreement ‘may’ be required but are not directed under
Schedule 21-LS.” Id. (quoting Tariff, Schedule 21-Local
Service § II.4.b(i)) The Commission relied on this reasoning in
its Rehearing Order. See Rehearing Order, 179 FERC ¶ 61,186at P 29 & n.79 (citing 178 FERC ¶ 61,115 at P ¶ 64 & n.114);
see also Entergy Ark., LLC v. FERC, 40 F.4th 689, 700 n.5
(D.C. Cir. 2022) (Commission may rely on reasoning in earlier
orders). The Rehearing Order also iterated the Commission’s
determination that Green Development “only makes
unsupported statements that these processes are required in this
specific instance and have not occurred.” Rehearing Order,
179 FERC ¶ 61,186 at P 29 & n.80.
For the foregoing reasons, the petitions for review are
denied.
So ordered.