[Federal Register Volume 77, Number 206 (Wednesday, October 24, 2012)]
[Rules and Regulations]
[Pages 64890-64904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26111]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM10-23-002; Order No. 1000-B]
Transmission Planning and Cost Allocation by Transmission Owning
and Operating Public Utilities
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Order on rehearing and clarification.
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SUMMARY: The Federal Energy Regulatory Commission affirms its basic
determinations in Order Nos. 1000 and 1000-A, amending the transmission
planning and cost allocation requirements established in Order No. 890
to ensure that Commission-jurisdictional services are provided at just
and reasonable rates and on a basis that is just and reasonable and not
unduly discriminatory or preferential. This order affirms the Order No.
1000 transmission planning reforms that: Require that each public
utility transmission provider participate in a regional transmission
planning process that produces a regional transmission plan; provide
that local and regional transmission planning processes must provide an
opportunity to identify and evaluate transmission needs driven by
public policy requirements established by state or federal laws or
regulations; improve coordination between neighboring transmission
planning regions for new interregional transmission facilities; and
remove from Commission-approved tariffs and agreements a federal right
of first refusal. This order also affirms the Order No. 1000
requirements that each public utility transmission provider must
participate in a regional transmission planning process that has: A
regional cost allocation method for the cost of new transmission
facilities selected in a regional transmission plan for purposes of
cost allocation and an interregional cost allocation method for the
cost of new transmission facilities that are located in two neighboring
transmission planning regions and are jointly evaluated by the two
regions in the interregional transmission coordination process required
by this Final Rule. Additionally, this order affirms the Order No. 1000
requirement that each cost allocation method must satisfy six cost
allocation principles.
DATES: Effective November 23, 2012.
FOR FURTHER INFORMATION CONTACT:
Melissa Nimit, Federal Energy Regulatory Commission, Office of the
General Counsel, 888 First Street NE., Washington, DC 20426, (202) 502-
6638.
Shiv Mani, Federal Energy Regulatory Commission, Office of Energy
Policy and Innovation, 888 First Street NE., Washington, DC 20426,
(202) 502-8240.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, and Cheryl A. LaFleur.
Issued October 18, 2012
Table of Contents
Paragraph
No.
I. Introduction............................................. 1
II. Transmission Planning................................... 5
A. Regional Transmission Planning....................... 5
1. Role of Section 217(b)(4) of the Federal Power 6
Act................................................
2. Regional Transmission Planning Requirements...... 12
3. Consideration of Transmission Needs Driven by 28
Public Policy Requirements.........................
B. Nonincumbent Transmission Developers................. 32
1. Legal Authority.................................. 33
2. Requirement To Remove a Federal Right of First 41
Refusal from Commission-Jurisdictional Tariffs and
Agreements, and Limits on the Applicability of That
Requirement........................................
3. Framework To Evaluate Transmission Projects 56
Submitted for Selection in the Regional
Transmission Plan for Purposes of Cost Allocation..
C. Interregional Transmission Coordination.............. 60
1. Implementation of the Interregional Transmission 61
Coordination Requirements..........................
III. Cost Allocation........................................ 65
1. Cost Allocation Principle 2--No Involuntary 67
Allocation of Costs to Non-beneficiaries...............
IV. Information Collection Statement........................ 73
V. Document Availability.................................... 74
[[Page 64891]]
VI. Effective Date.......................................... 77
Appendix A: Abbreviated Names of Petitioners ..........
I. Introduction
1. In Order No. 1000,\1\ the Commission amended the transmission
planning and cost allocation requirements established in Order No. 890
\2\ to ensure that the rates, terms and conditions of service provided
by public utility providers are just and reasonable and not unduly
discriminatory or preferential. Order No. 1000's transmission planning
reforms require: (1) Each public utility transmission provider to
participate in a regional transmission planning process that produces a
regional transmission plan; (2) that local and regional transmission
planning processes must provide an opportunity to identify and evaluate
transmission needs driven by public policy requirements established by
state or federal laws or regulations; (3) improved coordination between
neighboring transmission planning regions for new interregional
transmission facilities; and (4) the removal from Commission-approved
tariffs and agreements of a federal right of first refusal.
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\1\ Transmission Planning and Cost Allocation by Transmission
Owning and Operating Public Utilities, Order No. 1000, 76 FR 49842
(Aug. 11, 2011), FERC Stats. & Regs. ] 31,323 (2011), order on
reh'g, Order No. 1000-A, 139 FERC ] 61,132 (2012).
\2\ Preventing Undue Discrimination and Preference in
Transmission Service, Order No. 890, 72 FR 12266 (Mar. 15, 2007),
FERC Stats. & Regs. ] 31,241, order on reh'g, Order No. 890-A, 73 FR
2984 (Jan. 16, 2008), FERC Stats. & Regs. ] 31,261 (2007), order on
reh'g and clarification, Order No. 890-B, 73 FR 39092 (July 8,
2008), 123 FERC ] 61,299 (2008), order on reh'g, Order No. 890-C, 74
FR 12540 (Mar. 25, 2009), 126 FERC ] 61,228 (2009), order on
clarification, Order No. 890-D, 74 FR 61511 (Nov. 25 2009), 129 FERC
] 61,126 (2009).
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2. Order No. 1000 also requires that each public utility
transmission provider must participate in a regional transmission
planning process that has: (1) A regional cost allocation method for
the cost of new transmission facilities selected in a regional
transmission plan for purposes of cost allocation and (2) an
interregional cost allocation method for the cost of new transmission
facilities that are located in two neighboring transmission planning
regions and are jointly evaluated by the two regions in the
interregional transmission coordination process required by this Final
Rule. Order No. 1000 also requires that each cost allocation method
must satisfy six cost allocation principles.
3. In Order No. 1000-A, the Commission largely affirmed the reforms
adopted in Order No. 1000. The Commission concluded that taken
together, the reforms adopted in Order No. 1000 will ensure that
Commission-jurisdictional services are provided at just and reasonable
rates and on a basis that is just and reasonable and not unduly
discriminatory or preferential. The Commission therefore rejected
requests to eliminate, or substantially modify, the various reforms
adopted in Order No. 1000. The Commission did however, make a number of
clarifications.
4. Several petitioners have sought further rehearing and
clarification of the Commission's determinations in Order No. 1000-
A.\3\ The Commission largely affirms the determinations reached in
Order No. 1000-A, making clarifications to address matters raised by
petitioners.
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\3\ A list of petitioners filing requests for rehearing and/or
clarification is provided in Appendix A. Southwest Power Pool (SPP)
filed a request for clarification and/or reconsideration of Order
No. 1000-A. While SPP denominates its pleading as a request for
clarification, it is, in fact, a late-filed request for rehearing.
Pursuant to section 313(a) of the Federal Power Act (FPA), 16 U.S.C.
825l(a) (2006), an aggrieved party must file a request for rehearing
within thirty days after the issuance of the Commission's order.
Because the 30-day rehearing deadline is statutory, it cannot be
extended, and SPP's request for rehearing must be rejected as
untimely. Moreover, the courts have repeatedly recognized that the
time period within which a party may file an application for
rehearing of a Commission order is statutorily established at 30
days by section 313(a) of the FPA and that the Commission has no
discretion to extend that deadline. See, e.g., City of Campbell v.
FERC, 770 F.2d 1180, 1183 (D.C. Cir. 1985); Boston Gas Co. v. FERC,
575 F.2d 975, 977-79 (1st Cir. 1978). Furthermore, we note that the
issues raised by SPP are similar to those raised by other
petitioners, which are summarized and addressed below in section
II.B.2 of this order.
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II. Transmission Planning
A. Regional Transmission Planning
5. Order No. 1000 built on the reforms adopted in Order No. 890 to
improve regional transmission planning. First, Order No. 1000 required
each public utility transmission provider to participate in a regional
transmission planning process that produces a regional transmission
plan and complies with existing Order No. 890 transmission planning
principles.\4\ Second, Order No. 1000 adopted reforms under which
transmission needs driven by Public Policy Requirements are considered
in local and regional transmission planning processes.\5\ The
Commission explained that these reforms work together to ensure that
public utility transmission providers in every transmission planning
region, in consultation with stakeholders, evaluate proposed
alternative solutions at the regional level that may resolve the
region's needs more efficiently or cost-effectively than solutions
identified in the local transmission plans of individual public utility
transmission providers.\6\ The Commission noted that, as in Order No.
890, the transmission planning requirements in Order No. 1000 do not
address or dictate which transmission facilities should be either in
the regional transmission plan or actually constructed, and that such
decisions are left in the first instance to the judgment of public
utility transmission providers, in consultation with stakeholders
participating in the regional transmission planning process.\7\
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\4\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 68.
\5\ Id. The Commission explained that Public Policy Requirements
are those established by state or federal laws or regulations,
meaning enacted statutes (i.e., passed by the legislature and signed
by the executive) and regulations promulgated by a relevant
jurisdiction, whether within a state or at the federal level. Id. P
2. Order No. 1000-A clarified that this included transmission needs
driven by local laws or regulations. Order No. 1000-A, 139 FERC ]
61,132 at P 319.
\6\ Id.
\7\ Id. P 68 n.57.
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1. Role of Section 217(b)(4) of the Federal Power Act
a. Order No. 1000-A
6. In Order No. 1000-A, the Commission affirmed Order No. 1000's
conclusion that the Commission has ample legal authority under the
Federal Power Act (FPA) to undertake its regional transmission planning
reforms. Among other things, Order No. 1000-A rejected arguments that
FPA section 217(b)(4) \8\ prohibits or otherwise limits the
Commission's ability to undertake these reforms.\9\ Order No. 1000-A
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\8\ 16 U.S.C. 824s (2006).
\9\ Order No. 1000-A, 139 FERC ] 61,132 at PP 168-179.
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[[Page 64892]]
acknowledged claims by some petitioners that Order No. 681,\10\ which
requires transmission organizations that are public utilities with
organized electricity markets to make available long-term firm
transmission rights that satisfy certain guidelines, expressly notes a
preference for load-serving entities.\11\ Order No. 1000-A found that
Order No. 681's priority for load-serving entities in the allocation of
long-term firm transmission rights supported by existing transmission
capacity is not inconsistent with Order No. 1000, which addresses
planning and cost allocation for new transmission.\12\ Order No. 1000-A
also found that the transmission planning reforms will aid, and not
hinder, load-serving entities in meeting their reasonable transmission
needs.\13\
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\10\ Long-Term Firm Transmission Rights in Organized Electricity
Markets, Order No. 681, FERC Stats. & Regs. ] 31,226, order on
reh'g, Order No. 681-A, 117 FERC ] 61,201 (2006), order on reh'g,
Order No. 681-B, 126 FERC ] 61,254 (2009).
\11\ Order No. 1000-A, 139 FERC ] 61,132 at P 171.
\12\ Id. P 172.
\13\ Id.
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b. Request for Rehearing
7. Transmission Access Policy Study Group argues that in Order No.
1000-A, the Commission suggested for the first time that the preference
for load-serving entity long-term rights established in Order No. 681
applies only to existing transmission capacity ``but not in the broader
context of planning new transmission capacity.'' \14\ Transmission
Access Policy Study Group contends that the Commission erred in
suggesting that Order No. 681 does not apply to new transmission
facilities, contending that Order No. 681 extended the preference to be
afforded load-serving entities to long-term rights from existing
capacity to new capacity by providing that ``[w]hen * * * transmission
upgrades [that are rolled into transmission rates] come into service,
the transmission rights that result from such investments will be made
available as rights from `existing capacity.' '' \15\ Transmission
Access Policy Study Group states that this provision had one limited
exception--where a transmission upgrade is participant-funded.\16\ It
contends that this exception is inapplicable to the new transmission
facilities at issue in this proceeding, as Order No. 1000 specifically
ruled that participant funding will not comply with the regional or
interregional cost allocation principles adopted by the Final Rule.\17\
Transmission Access Policy Study Group urges the Commission to clarify
that Order Nos. 1000 and 1000-A do not alter the scope or applicability
of Order No. 681.\18\ In the alternative, it argues that Order No. 1000
should be reversed to the extent that it modifies the load-serving
entity long-term rights preference established by Order No. 681, by
limiting that preference to ``existing'' transmission facilities,
rather than extending it to new transmission that is not participant-
funded.\19\
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\14\ Transmission Access Policy Study Group at 12 (quoting Order
No. 1000-A, 139 FERC ] 61,132 at P 171).
\15\ Id. at 13 (quoting Order No. 681, FERC Stats. & Regs. ]
31,226 at P 211 (emphasis added)).
\16\ Id.
\17\ Id.
\18\ Id.
\19\ Id.
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c. Commission Determination
8. In response to Transmission Access Policy Study Group, we
clarify that nothing in either Order No. 1000 or Order No. 1000-A is
intended in any way to undermine or alter the guidelines the Commission
instituted in Order No. 681. Order No. 1000's transmission planning
reforms are distinct from the Commission's rulemaking in Order No. 681,
as we explain below.
9. Section 1233(a) of the Energy Policy Act of 2005 enacted FPA
section 217(b)(4), in which the Commission is directed to exercise its
authority under the FPA in a manner that facilitates the planning and
expansion of transmission facilities to meet the reasonable needs of
load-serving entities to satisfy the service obligations of the load-
serving entities, and enables load-serving entities to secure firm
transmission rights (or equivalent tradable or financial rights) on a
long-term basis for long-term power supply arrangements made, or
planned, to meet such needs.\20\
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\20\ 16 U.S.C. 824q(b)(4) (2006).
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10. Section 1233(b) of the Energy Policy Act of 2005 further
directed the Commission to promulgate a rule on long-term transmission
rights in organized markets.\21\ The Commission consequently issued
Order No. 681, which adopted guidelines that independent system
operators (ISOs) and regional transmission organizations (RTOs) are
required to follow regarding the availability of long-term firm
transmission rights, including a guideline providing that load-serving
entities ``must have a priority over non-load serving entities in the
allocation of long-term firm transmission rights that are supported by
existing capacity.'' \22\
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\21\ EPAct 2005, Public Law 109-58, section 1233, 119 Stat. 594,
960 (2005); 16 U.S.C. 824q (2006)). Section 1233 provides that
within 1 year after the date of enactment of that section and after
notice and an opportunity for comment, the Commission shall by rule
or order, implement section 217(b)(4) of the Federal Power Act in
Transmission Organizations, as defined by that Act with organized
electricity markets.
\22\ Order No. 681, FERC Stats. & Regs. ] 31,226 at P 325.
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11. As Order No. 1000-A explained, we do not find any inconsistency
between Order No. 1000 and section 217(b)(4).\23\ Nor do we find any
inconsistency between Order No. 1000 and Order No. 681. The
requirements adopted by the Commission in Order Nos. 1000 and 1000-A
are focused on the planning and cost allocation of new transmission
facilities, as defined therein. The Commission did not intend its
statements in Order No. 1000-A regarding the planning and cost
allocation of certain new transmission facilities to alter the
requirement in Order No. 681 that ``when [transmission upgrades that
are rolled into transmission rates] * * * come into service, the
transmission rights that result from such investments will be made
available as rights from `existing capacity' * * * . Prevailing cost
allocation rules will apply.'' \24\ Thus, we clarify for Transmission
Access Policy Study Group that nothing in Order Nos. 1000 or 1000-A
changes the requirements of Order No. 681, including the Order No. 681
established preference for load-serving entities in the allocation of
long-term firm transmission rights, and that the Commission did not
alter the application of Order No. 681 to new transmission facilities
that are subject to the requirements of Order No. 1000.
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\23\ See Order No. 1000-A, 139 FERC ] 61,132 at PP 168-179
(addressing requests for rehearing and clarification of Order No.
1000 with respect to the role of section 217(b)(4)).
\24\ See Order No. 681, FERC Stats. & Regs. ] 31,226 at P 211.
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2. Regional Transmission Planning Requirements
a. Order No. 1000-A
12. Order No. 1000-A affirmed Order No. 1000's conclusion that
public utility transmission providers must revise their OATTs to
provide for a regional transmission planning process that produces a
regional transmission plan and satisfies Order No. 890's transmission
planning principles.\25\ The Commission explained that Order No. 1000
requires neither the filing of the regional transmission plan resulting
from the regional transmission planning process nor the filing of
specific applications of cost allocation determinations.\26\ With
respect to this latter point, Order No. 1000-A stated
[[Page 64893]]
that such a requirement would be unnecessary to comply with Order No.
1000, noting that Order No. 1000 requires that public utility
transmission providers have an ex ante cost allocation method on file
with and approved by the Commission. Order No. 1000-A also noted that
this cost allocation method must explain how the costs of new
transmission facilities selected in a regional transmission plan for
purposes of cost allocation are to be allocated, consistent with the
cost allocation principles set forth in Order No. 1000.\27\
Consequently, customers, stakeholders, and others will have ``notice''
at the time the compliance filings are made, when the Commission acts
on those filings, and as the regional transmission planning process
results in the selection of a transmission facility in the regional
transmission plan for purposes of cost allocation.\28\ However,
consistent with the regional flexibility provided in Order No. 1000,
Order No. 1000-A also concluded that public utility transmission
providers, in consultation with stakeholders, may propose OATT
revisions requiring the submission of cost allocations in their Order
No. 1000 compliance filings.\29\
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\25\ Order No. 1000-A, 139 FERC ] 61,132 at PP 263-301.
\26\ Id. PP 285-286.
\27\ Id. P 286.
\28\ Id.
\29\ Id.
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13. The Commission further stated in Order No. 1000-A that it will
evaluate compliance filings to ensure that they comply with Order No.
1000 and that both stakeholders and the Commission have the right to
initiate actions under section 206 of the FPA if they believe that, for
example, a Commission-approved regional transmission planning process
was not followed or if a cost allocation method was not followed or
produced unjust and unreasonable results for a particular new
transmission facility or class of new transmission facilities.\30\
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\30\ Id. P 287.
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b. Request for Rehearing
14. Transmission Access Policy Study Group argues that the
Commission should not establish a generic rule that, if transmission
providers elect not to propose a section 205 filing of specific
applications of their regional cost allocation, the only means to
challenge such applications is under section 206.\31\ It states that
although Order No. 1000-A nowhere uses the term ``formula rate'' to
describe the rule's treatment of regional cost allocation
methodologies, it is creating a filing regimen where the cost
allocation methodologies will function as just that.\32\
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\31\ Transmission Access Policy Study Group at 3.
\32\ Id. at 4.
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15. Therefore, Transmission Access Policy Study Group contends that
the Commission should require the section 205 filing of project-
specific applications of the regional cost allocation methodology, or
leave it to the compliance filing process to determine whether such a
filing is required.\33\ If cost allocation methods are treated as
formula rates, Transmission Access Policy Study Group maintains that
the Commission can have no reasonable assurance that cost allocation
methodologies will be sufficiently specific, grounded in objective
criteria, and otherwise adequately constrain utility discretion.\34\ It
further asserts that regional cost allocation methodologies, in
combination with the process for selecting projects for regional cost
allocation, will likely rely on assumptions and other judgments that
undermine predictability.\35\
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\33\ Id. at 5.
\34\ Id. at 6.
\35\ Id. at 7.
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16. Transmission Access Policy Study Group argues that sole
reliance on section 206 to challenge specific implementation of a
Commission-accepted Order No. 1000 methodology when the transmission
provider has not made a section 205 filing is unjustified.\36\ It
contends that in the non-RTO context, application of the cost
allocation methodology leaves ample room for transmission providers to
engage in undue discrimination, and the Commission cannot reasonably
assume that the cost allocation methodology, by itself, will in all
cases provide customers with ``notice'' as to how regional facilities
will be selected, and their costs allocated, in the future.\37\ It also
contends that transmission providers have the enhanced ability to
discriminate, particularly where a cost allocation methodology is
unlikely to have the specificity and objectivity to cabin the
transmission provider's discretion, and where stakeholders only may
have the opportunity to provide input that the transmission providers
are free to ignore.\38\ It argues that, in these cases in particular,
treating the cost allocation methodology as a formula rate improperly
shifts the burdens imposed by section 205.\39\
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\36\ Id.
\37\ Id. at 7-8.
\38\ Id. at 8.
\39\ Id.
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17. Transmission Access Policy Study Group argues that, at minimum,
the Commission should defer making a generic finding now that section
206 is the only available recourse to challenge specific applications
of regional cost allocation methodologies absent transmission providers
electing to propose section 205 filings of those specific
applications.\40\ Instead, it suggests that the Commission should leave
for determination on a case-by-case basis the process of evaluating
Order No. 1000 compliance filings, in response to requests by
transmission providers or other stakeholders or on its own motion,
whether in a particular region the filing of specific applications of
the regional cost allocations is necessary.\41\ It maintains that
deferral will enable the Commission to consider the specifics of the
proposed regional cost allocation methodology in conjunction with the
proposed project selection process and associated governance and other
safeguards (if any), as well as the views of public utility
transmission providers in that region and other stakeholders.\42\
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\40\ Id. at 9.
\41\ Id.
\42\ Id. at 10.
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c. Commission Determination
18. We deny rehearing. Transmission Access Policy Study Group has
not persuaded us that the determination not to require the filing of
specific applications of the cost allocation method was in error. Order
No. 1000's reforms are intended, in part, to establish an open and
transparent transmission planning process and require transmission
planning regions to adopt a cost allocation method or methods that
provide ex ante certainty. Both the Order No. 1000 compliance process
and the resulting Commission-approved regional transmission planning
process and associated cost allocation method(s) are required to have
built-in mechanisms to help ensure that the processes and cost
allocation methods are in fact transparent and provide the certainty
that Transmission Access Policy Study Group seeks.
19. First, stakeholders have had the opportunity to participate
fully in regional stakeholder meetings to advocate for a cost
allocation method that provides the ex ante certainty that Order No.
1000 seeks, as well as to advocate that public utility transmission
providers include a provision requiring the filing of specific
applications of the cost allocation method. We believe that this
approach accords with the regional flexibility we provided in Order No.
1000 for public utility transmission
[[Page 64894]]
providers and stakeholders in a transmission planning region to develop
rules that meet the transmission needs of that region, consistent with
the requirements and principles set forth in Order Nos. 1000 and 1000-
A.
20. Second, the Commission will carefully consider the Order No.
1000 compliance filings once they are submitted, as well as any
protests filed by stakeholders, to ensure that proposals satisfy the
requirements that regional transmission planning processes be open and
transparent and that the cost allocation method or methods satisfy the
Order No. 1000 cost allocation principles. If a filing is deficient,
the Commission will require public utility transmission providers to
file revisions to address those deficiencies.
21. Third, once the regional transmission planning process is
approved by the Commission and becomes effective, the Order No. 890
transmission planning principles, as incorporated into a regional
transmission planning process in compliance with Order No. 1000, will
help mitigate concerns about the transparency of the process and the
application of the cost allocation method. These principles address,
among other things, stakeholder participation, information exchange,
and dispute resolution.\43\ By incorporating these principles into the
regional transmission planning process, the Commission's expectation is
that there will be increased openness and certainty concerning how
beneficiaries of transmission facilities selected in the regional
transmission plan for purposes of cost allocation will be determined,
as well as internal processes to resolve any questions that might arise
as part of this process. And as noted in Order No. 1000-A, in
identifying the benefits and beneficiaries for a new transmission
facility, the regional transmission planning process must provide
entities who will receive regional or interregional cost allocation an
understanding of the identified benefits on which the cost allocation
is based, all of which would occur prior to the recovery of such costs
through a formula rate.\44\
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\43\ Order No. 890 requires transmission providers to disclose
to all customers and other stakeholders the basic criteria,
assumptions, and data that underlie their transmission system plans.
In addition, transmission providers will be required to reduce to
writing and make available the basic methodology, criteria, and
processes they use to develop their transmission plans, including
how they treat retail native loads, in order to ensure that
standards are consistently applied. Preventing Under Discrimination
and Preference in Transmission Service, Order No. 890, FERC Stats. &
Regs. ] 31,241 at P 471 (2007).
\44\ Order No. 1000-A, 139 FERC ] 61,132 at P 746.
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22. Moreover, as we explained in Order No. 1000-A, stakeholders
always have the option of filing a section 206 complaint if they
believe that, notwithstanding these protections, there was an incorrect
application of the cost allocation method in a particular instance.\45\
Finally, if stakeholders believe that the previously approved cost
allocation method itself is no longer just and reasonable, they also
have the option of filing a section 206 complaint with respect to the
cost allocation method.
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\45\ Id. P 231.
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23. Transmission Access Policy Study Group suggests that
application of the ex ante cost allocation to, or in, particular
instance(s) should require a section 205 filing with the Commission.
Order No. 1000 establishes no new requirement with respect to this
issue. As we note above, Order No. 1000-A stated that we would consider
proposals that would require public utility transmission providers to
file specific applications of the cost allocation method. Therefore,
Order No. 1000 provides flexibility in this regard and the Commission
stated that it will not prejudge any method before the compliance
filings are filed, so long as they satisfied the cost allocation
principles articulated in Order No. 1000 (with the exception that
participant funding may not be the regional or interregional cost
allocation method). We will carefully evaluate compliance filings to
ensure that they satisfy these principles.
24. Transmission Access Policy Study Group asserts that if the cost
allocation method is thought of as a formula rate, it would improperly
shift the burdens under section 205 of the FPA, especially where a cost
allocation method is unlikely to have specificity or objectivity to
cabin transmission providers' discretion and where they can ignore
stakeholder input. We disagree with this argument. As we discuss above,
Order No. 1000 provides for ex ante certainty. In Order No. 1000, the
Commission stated that it required the development of regional and
interregional cost allocation methods to provide greater certainty as
to the cost allocation implications of a potential transmission
project.\46\ The Commission also stated that under the regional
transmission planning and interregional transmission coordination
requirements, public utility transmission providers with stakeholders
will identify, evaluate, and determine which transmission facilities
meet the region's needs, and apply the cost allocation method or
methods associated with those transmission facilities.\47\ In Order No.
1000-A, the Commission clarified that public utility transmission
providers must consult with stakeholders in developing both regional
and interregional cost allocation methods.\48\ Therefore, the
Commission specifically requires public utility transmission providers
to provide the opportunity for stakeholder input in the development of
the regional and interregional cost allocation methods. If a
stakeholder believes that its input is being ignored, it has the right
to raise its issues with the cost allocation method or methods when the
relevant Order No. 1000 compliance filing is made, or in a separate
section 206 filing.
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\46\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at PP 559,
579.
\47\ Id. P 499.
\48\ Id. PP 559, 579.
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25. We also disagree with Transmission Access Policy Study Group's
argument that the use of a cost allocation method could result in
burden shifting under section 205. Order No. 1000-A acknowledged that
stakeholder participation is an important aspect of the development of
compliance filings to meet the requirements of Order No. 1000, and
should ensure that the cost allocation method or methods ultimately
agreed upon is balanced and does not favor any particular entity.\49\
Additionally, the Commission clarified that the Commission's cost
allocation requirements do not interfere with section 205 rights or
otherwise impose an undue burden on parties to participate in a new and
costly process, but rather build on the reforms to the transmission
planning process required by Order No. 890, in which all interested
parties should already be participating.\50\ As noted above, the
regional transmission planning process must provide entities who will
receive regional or interregional cost allocation an understanding of
the identified benefits on which the cost allocation will be based.\51\
Compliance proposals submitted by transmission providers will be
reviewed by the Commission to ensure they provide the upfront certainty
required by Order No. 1000.\52\
[[Page 64895]]
To the extent that Transmission Access Policy Study Group is concerned
about cost recovery issues rather than cost allocation, Order No. 1000
explained that such questions are beyond the scope of the generic
rulemaking proceeding, and Order No. 1000-A affirmed this, but
clarified that public utility transmission providers, in consultation
with stakeholders, may choose to address this cost recovery matter in
their compliance filings.\53\
---------------------------------------------------------------------------
\49\ Order No. 1000-A, 139 FERC ] 61,132 at P 637.
\50\ Id. P 649.
\51\ Id. P 746.
\52\ As Transmission Access Policy Study Group also recognizes,
not all RTOs make section 205 filings for the application of an
existing filed cost allocation methodology. See Transmission Access
Policy Study Group at n.14. Transmission Access Policy Study Group
has not justified its position that this will be an issue in non-
ISO/RTO regions at this time. Again, the Commission will carefully
evaluate compliance filings, as well as protests thereto, to ensure
that they satisfy Order No. 1000's requirements, and the Commission
will require changes if they fail to do so.
\53\ Order No. 1000-A, 139 FERC ] 61,132 at P 616.
---------------------------------------------------------------------------
26. We do not believe that Transmission Access Policy Study Group
has justified at this time its position that public utility
transmission providers in non-RTO regions, at least, should be required
to file specific applications of the cost allocation method. Again, as
discussed above, our expectation is that the open and transparent
transmission planning process and principle-based cost allocation
method will provide stakeholders with clarity as to why and how costs
are being allocated for any specific transmission facility selected in
the regional transmission plan for purposes of cost allocation. This is
true regardless of whether or not the transmission planning region is
an ISO/RTO. As we also discuss above, the Commission will carefully
evaluate compliance proposals and any resulting protests to ensure that
the proposals meet the requirements of Order No. 1000.
27. Finally, with respect to Transmission Access Policy Study
Group's request that we defer a determination on using section 206 as
the default mechanism to challenge a cost allocation proposal,
references to section 206 in Order No. 1000-A were to remind
stakeholders of their right under that provision to file complaints. In
any event, as we have previously explained, Order No. 1000-A provides
that public utility transmission providers in a transmission planning
region, in consultation with stakeholders, could agree to require the
filing of specific applications of the cost allocation method. The
Commission will review any such requirement during the Order No. 1000
compliance filings process and make a decision based on the record
before us.
3. Consideration of Transmission Needs Driven by Public Policy
Requirements
a. Order No. 1000-A
28. Order No. 1000-A affirmed Order No. 1000's requirement that
public utility transmission providers amend their OATTs to provide for
the consideration of transmission needs driven by Public Policy
Requirements.\54\ In affirming this requirement, Order No. 1000-A
provided clarifications regarding the definition of the term ``Public
Policy Requirements'' \55\ and what it means to ``consider''
transmission needs driven by such requirements.\56\ Order No. 1000-A
explained that the Commission intends that public utility transmission
providers consider transmission needs driven by Public Policy
Requirements just as they consider transmission needs driven by
reliability or economic concerns.\57\ Further, the Commission stated
that it does not intend public utility transmission providers to
substitute their policy judgments for those of legislatures and
regulators.\58\ Order No. 1000-A also explained that the Commission
does not require that regional transmission plans support multiple
likely power supply scenarios, although such a requirement could be
proposed in Order No. 1000 compliance filings and the Commission would
consider such a proposal.\59\
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\54\ Order No. 1000-A, 139 FERC ] 61,132 at PP 317-339. See also
id. PP 203-216 (affirming legal basis of requirement to consider
transmission needs driven by Public Policy Requirements).
\55\ Order No. 1000 defined ``Public Policy Requirements'' as
public policy requirements established by state or federal laws and
regulations. Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 2.
Order No. 1000-A clarified that this term included duly enacted laws
or regulations passed by a local governmental entity, such as a
municipal or county government. Order No. 1000-A, 139 FERC ] 61,132
at P 319.
\56\ Order No. 1000-A, 139 FERC ] 61,132 at PP 320-325.
\57\ Id. P 205.
\58\ Id. PP 326-29.
\59\ Id. P 331.
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b. Request for Clarification
29. AEP requests clarification that an appropriate method for a
region to consider transmission needs driven by Public Policy
Requirements is to expressly include consideration of changes in
resources and load driven by public policies as part of its baseline
projection of changes in resources and load expected over the planning
horizon, and then conduct reliability and congestion analyses to
determine what transmission investments are optimal given those
expected changes in resources and load.\60\ AEP argues that Public
Policy Requirements should not be considered solely on a stand-alone
basis in the planning process.\61\ It contends that generation or load
changes driven by public policies should be factored into the
scenarios, along with other anticipated resource and load changes, for
which reliability and economic benefits analyses are performed.\62\
---------------------------------------------------------------------------
\60\ AEP at 5.
\61\ Id. at 2.
\62\ Id.
---------------------------------------------------------------------------
30. AEP states that it is concerned that some transmission
providers may seek to satisfy the Commission's public policy
requirement by employing only a stand-alone process or procedures that
are specifically designed to evaluate transmission needs driven by
Public Policy Requirements.\63\ It argues that regional planning
processes should consider reliability, economic, and policy-driven
transmission needs together.\64\ In particular, AEP asserts that a
region should consider what changes in generation resources and load it
expects over the planning horizon, including consideration of changes
driven by public policies (such as renewable portfolio standards, new
environmental regulations, and demand side management programs), and
then conduct reliability and congestion analyses to determine what
transmission investments are optimal given these anticipated
changes.\65\ It contends that this approach enables transmission
providers to build upon existing planning processes for the reliability
and economic analyses used to identify baseline reliability and
economic projects.\66\ AEP argues that integrated consideration of
public policy-driven requirements can factor into efficient decisions
to accelerate a needed baseline reliability upgrade or increase the
capacity of a baseline reliability upgrade or baseline economic
upgrade.\67\
---------------------------------------------------------------------------
\63\ Id. at 4.
\64\ Id.
\65\ Id.
\66\ Id.
\67\ Id.
---------------------------------------------------------------------------
c. Commission Determination
31. We grant AEP's request for clarification to the extent
discussed below. Order No. 1000 requires public utility transmission
providers to revise their OATTs to provide for the consideration of
transmission needs driven by Public Policy Requirements.\68\ In Order
No. 1000, the Commission
[[Page 64896]]
provides for regional flexibility so that public utility transmission
providers, in consultation with stakeholders, can design proposals
addressing this requirement that they believe best meet the needs of
their respective transmission planning regions, so long as those
proposals satisfy the essential requirement that public utility
transmission providers, in consultation with stakeholders, consider
transmission needs driven by Public Policy Requirements as set forth in
Order No. 1000 and clarified in Order No. 1000-A.\69\ The Commission
anticipates that a variety of approaches could satisfy the Commission's
requirements and we expect that stakeholders supporting such proposals
would have the opportunity to advocate for them in the stakeholder
processes leading to the Order No. 1000 compliance filings. The
Commission will consider any such approaches in the compliance filings
when they are submitted for review.\70\
---------------------------------------------------------------------------
\68\ The requirement to consider transmission needs driven by
Public Policy Requirements is described in more detail in Order No.
1000, FERC Stats. & Regs. ] 31,323 at PP 203-222 and Order No. 1000-
A, 139 FERC ] 61,132 at PP 317-339.
\69\ See, e.g., Order No. 1000-A, 139 FERC ] 61,132 at P 331
(``It may well be the case that evaluating different power supply
scenarios will be an effective way to identify more efficient or
cost-effective transmission solutions; however, we will not
prescribe any such requirements here, consistent with our preference
for regional flexibility in designing regional transmission planning
processes.'').
\70\ See id.
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B. Nonincumbent Transmission Developers
32. In Order No. 1000, the Commission addressed the removal from
Commission-jurisdictional tariffs and agreements of provisions that
contain a federal right of first refusal to construct transmission
facilities selected in a regional transmission plan for purposes of
cost allocation. The Commission also adopted a framework that requires
the development of qualification criteria and protocols to govern the
submission and evaluation of proposals for transmission facilities by
public utility transmission providers in the regional transmission
planning process. The Commission further required that a nonincumbent
transmission developer of a transmission facility selected in the
regional transmission plan for purposes of cost allocation have an
opportunity comparable to that of an incumbent transmission developer
to allocate the cost of such transmission facility through a regional
cost allocation method or methods.\71\
---------------------------------------------------------------------------
\71\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 225.
---------------------------------------------------------------------------
1. Legal Authority
a. Order No. 1000-A
33. In Order No. 1000-A, the Commission affirmed its conclusion in
Order No. 1000 that it has the legal authority under section 206 of the
FPA to require the elimination of federal rights of first refusal as
practices that have the potential to lead to Commission-jurisdictional
rates that are unjust and unreasonable or unduly discriminatory or
preferential.\72\ The Commission stated that, consistent with its
authority under section 206, the Commission acted to remedy an unjust
and unreasonable or unduly discriminatory or preferential practice by
requiring public utility transmission providers to eliminate a federal
right of first refusal from Commission-jurisdictional tariffs and
agreements and adopt the nonincumbent reforms. The Commission explained
that in Order No. 1000, it had found that a federal right of first
refusal applicable to transmission facilities selected in a regional
transmission plan for purposes of cost allocation can lead to rates for
Commission-jurisdictional services that are unjust and unreasonable or
otherwise result in undue discrimination by public utility transmission
providers.\73\
---------------------------------------------------------------------------
\72\ Order No. 1000-A, 139 FERC ] 61,132 at P 357.
\73\ Id. P 360.
---------------------------------------------------------------------------
34. Finally, the Commission affirmed its decision in Order No. 1000
to address arguments that an individual contract contains a federal
right of first refusal that is protected by a Mobile-Sierra provision
when it reviews the compliance filings made by public utility
transmission providers.\74\ Consistent with Order No. 1000, the
Commission explained that a public utility transmission provider that
considers its contract to be protected by a Mobile-Sierra provision may
present its arguments as part of its compliance filing. However, the
Commission also clarified that any such compliance filing must include
the revisions to any Commission-jurisdictional tariffs and agreements
necessary to comply with Order No. 1000 as well as the Mobile-Sierra
provision arguments.\75\ The Commission concluded that this approach
ensures that public utility transmission providers would not be
required to eliminate a federal right of first refusal before the
Commission makes a determination regarding whether an agreement is
protected by a Mobile-Sierra provision and whether the Commission has
met the applicable standard of review, while at the same time ensuring
that the Order No. 1000 compliance process proceeds expeditiously and
efficiently.
---------------------------------------------------------------------------
\74\ Id. P 388.
\75\ Id. P 389.
---------------------------------------------------------------------------
b. Requests for Rehearing and Clarification
35. Oklahoma Gas and Electric Company argues that the Commission
failed to support its assertion that provisions that designate
incumbent utilities to construct new transmission facilities are unduly
discriminatory or preferential, or cause rates to be unreasonably
high.\76\ Oklahoma Gas and Electric Company further argues that the
Commission cannot support a finding that the current transmission rules
in the Southwest Power Pool result in rates that are unjust or
unreasonable.\77\
---------------------------------------------------------------------------
\76\ Oklahoma Gas and Electric Company at 4.
\77\ Id.
---------------------------------------------------------------------------
36. Oklahoma Gas and Electric Company also argues that the
Commission ignores that the Mobile-Sierra standard is a threshold
question and that the Commission cannot shift the burden of proof to
the contracting parties to propose an alternative until the Commission
has answered.\78\ Oklahoma Gas and Electric Company asserts that, under
section 206 of the Federal Power Act, the Commission must first prove
that the existing rates or practices are unjust, unreasonable, unduly
discriminatory or preferential, and that courts have repeatedly held
that the Commission has no power to force public utilities to file
particular rates unless it first finds the existing filed rates
unlawful.\79\ Oklahoma Gas and Electric Company asserts that this two-
step process is even more vital in the context of applying the Mobile-
Sierra doctrine because the Commission must presume that the rate set
out in a freely negotiated wholesale-energy contract meets the just and
reasonable requirement imposed by law.\80\ Accordingly, Oklahoma Gas
and Electric Company argues that the Commission has no power to require
parties to renegotiate and revise existing agreements unless it finds
harm to the public interest.\81\
---------------------------------------------------------------------------
\78\ Id. at 8.
\79\ Id. at 8-9 (citing Atlantic City Elec. Co. v. FERC, 295
F.3d 1, 10 (D.C. Cir. 2002); Complex Consol. Edison Co. of New York,
Inc. v. FERC, 165 F.3d 992, 1001 (D.C. Cir. 1999); Transmission
Access Policy Study Group v. FERC, 225 F.3d 667, 688 (D.C. Cir.
2005)).
\80\ Id. at 9 (citing NRG Power Marketing, LLC v. Maine Public
Utilities Commission, 130 S. Ct. 693, 700 (2010)).
\81\ Id. at 9-10.
---------------------------------------------------------------------------
c. Commission Determination
37. We disagree with Oklahoma Gas and Electric Company that the
[[Page 64897]]
Commission failed to support its determination that a federal right of
first refusal for transmission facilities selected in a regional
transmission plan for purposes of cost allocation may lead to
Commission-jurisdictional rates that are unjust and unreasonable or
unduly discriminatory or preferential. Specifically, the Commission
found that a federal right of first refusal has ``the potential to
undermine the identification and evaluation of more efficient or cost-
effective solutions to regional transmission needs, which in turn can
result in rates for Commission-jurisdictional services that are unjust
and unreasonable or otherwise result in undue discrimination by public
utility transmission providers.'' \82\ The Commission further explained
the direct effect that a federal right of first refusal can have on
Commission-jurisdictional rates in Order No. 1000-A, stating that:
---------------------------------------------------------------------------
\82\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 253.
the selection of transmission facilities in a regional transmission
plan for purposes of cost allocation is directly related to costs
that will be allocated to jurisdictional ratepayers. The ability of
an incumbent transmission provider to discourage or preclude
participation of new transmission developers through discriminatory
rules in a regional transmission planning process, and in
particular, the inclusion of a federal right of first refusal, can
have the effect of limiting the identification and evaluation of
potential solutions to regional transmission needs. This in turn can
directly increase the cost of new transmission development that is
---------------------------------------------------------------------------
recovered from jurisdictional customers through rates.\83\
\83\ Order No. 1000-A, 139 FERC ] 61,132 at P 358 (citations
omitted).
38. The Commission put forth several rationales to support its
determination.\84\ In particular, the Commission noted that the Federal
Trade Commission supported the Commission's conclusion that a federal
right of first refusal can create a barrier to entry that discourages
nonincumbent transmission developers from proposing alternative
solutions for consideration at the regional level.\85\ In addition, the
Commission stated that it is not in the economic self-interest of
incumbent transmission providers to permit new entrants to develop
transmission facilities, even if proposals submitted by new entrants
would result in a more efficient or cost-effective solution to the
region's needs.\86\ Thus, the Commission concluded that it has a
reasonable expectation that expanding the universe of transmission
developers offering potential solutions to regional needs can lead to
the identification and evaluation of potential solutions that are more
efficient or cost-effective.\87\
---------------------------------------------------------------------------
\84\ Id. P 76.
\85\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 257; see
Order No. 1000-A, 139 FERC ] 61,132 at P 76.
\86\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 256.
\87\ Order No. 1000-A, 139 FERC ] 61,132 at PP 77, 83.
---------------------------------------------------------------------------
39. Furthermore, as the Commission explained in the Need for Reform
section of Order No. 1000-A, the Commission is not required to make
individual findings concerning the rates of individual public utility
transmission providers when proceeding under FPA section 206 by means
of a generic rule.\88\ Rather, the Commission can proceed by
identifying a ``theoretical threat'' that would materialize and cause
rates to be unjust and unreasonable, or unduly discriminatory or
preferential.\89\ As discussed in the preceding paragraph, the
Commission found that a federal right of first refusal has the
potential to lead to rates for Commission-jurisdictional services that
are unjust and unreasonable or otherwise unduly discriminatory.
---------------------------------------------------------------------------
\88\ Id. P 56.
\89\ Id. P 57.
---------------------------------------------------------------------------
40. In response to Oklahoma Gas and Electric Company's arguments
regarding the Mobile-Sierra doctrine, we reiterate that the Commission
is not requiring public utility transmission providers to eliminate a
federal right of first refusal before the Commission makes a
determination regarding whether an agreement is protected by the
Mobile-Sierra doctrine and whether the Commission has met the
applicable standard of review. As the Commission clarified in Order No.
1000-A, the Commission will first decide, based on a more complete
record, including viewpoints of other interested parties, whether an
agreement is protected by the Mobile-Sierra doctrine, and if so,
whether the Commission has met the applicable standard of review such
that it can require the modification of the particular agreement.\90\
If the Commission determines based on the record submitted in the
compliance filing that an agreement is protected by the Mobile-Sierra
doctrine and that it cannot meet the applicable standard of review,
then the Commission will not consider whether the revisions to the
Commission-jurisdictional tariffs and agreements submitted by a public
utility transmission provider that considers its agreement to be
protected by the Mobile-Sierra doctrine comply with Order No. 1000.\91\
---------------------------------------------------------------------------
\90\ Id. P 389.
\91\ Id.
---------------------------------------------------------------------------
2. Requirement To Remove a Federal Right of First Refusal From
Commission-Jurisdictional Tariffs and Agreements, and Limits on the
Applicability of That Requirement
a. Order No. 1000-A
41. In Order No. 1000-A, the Commission affirmed its decision in
Order No. 1000 to require the elimination of a federal right of first
refusal from Commission-jurisdictional tariffs and agreements for
transmission facilities selected in a regional transmission plan for
purposes of cost allocation.\92\ The Commission also clarified certain
terms used in Order No. 1000. For instance, the Commission clarified
that the term ``selected in a regional transmission plan for purposes
of cost allocation'' excludes a new transmission facility if the costs
of that facility are borne entirely by the public utility transmission
provider in whose retail distribution service territory or footprint
that new transmission facility is to be located.\93\
---------------------------------------------------------------------------
\92\ Id. P 415.
\93\ Id. P 423.
---------------------------------------------------------------------------
42. The Commission stated that in general, any regional cost
allocation of the cost of a new transmission facility outside a single
transmission provider's retail distribution service territory or
footprint, including an allocation to a ``zone'' consisting of more
than one transmission provider, is an application of the regional cost
allocation method and that new transmission facility is not a local
transmission facility.\94\ As an example, the Commission stated that
transmission owning members of an RTO may not retain a federal right of
first refusal by dividing the RTO into East and West multi-utility
zones and allocating costs just within one zone consisting of more than
one transmission provider.\95\ The Commission also stated that it will
address whether a cost allocation to a multi-transmission provider zone
is regional on a case-by-case basis based on the specific facts
presented. The Commission explained that there may be a continuum of
examples that range from (i) one small municipality with a single small
transmission facility located within a transmission provider's
footprint, to (ii) a ``zone'' consisting of many public utility and
nonpublic utility transmission providers. Accordingly, the Commission
stated that public utility transmission providers may include specific
situations in their compliance filings along with the filed regional
cost
[[Page 64898]]
allocation method or methods.\96\ The Commission clarified that if any
costs of a new transmission facility are allocated regionally or
outside of a public utility transmission provider's retail distribution
service territory or footprint, there can be no federal right of first
refusal associated with such transmission facility, except as provided
in Order Nos. 1000 and 1000-A.\97\
---------------------------------------------------------------------------
\94\ Id. P 424.
\95\ Id.
\96\ Id.
\97\ Id. P 430. For example, the Commission does not require an
incumbent transmission provider to eliminate a federal right of
first refusal for upgrades to its own transmission facilities. Order
No. 1000, FERC Stats. & Regs. ] 31,323 at P 319.
---------------------------------------------------------------------------
b. Requests for Rehearing and Clarification
43. Petitioners seek rehearing of the Commission's determination in
Order No. 1000-A that a transmission facility is considered selected in
a regional transmission plan for purposes of cost allocation if any of
the costs of that facility are allocated outside of the public utility
transmission provider's retail distribution service territory or
footprint.\98\ MISO Transmission Owners Group 2 argues that under a
reasonable interpretation of Order No. 1000, a transmission provider
may retain its right of first refusal if a transmission facility is not
selected in a regional transmission plan for purposes of cost
allocation as a more efficient or cost-effective solution to regional
needs but instead was selected to primarily address local needs.\99\
MISO Transmission Owners Group 2 states that not all projects included
in the regional transmission plan for which some costs are allocated
outside of an individual utility's footprint are ``a more efficient or
cost-effective solution to regional transmission needs,'' such as
projects constructed to meet compliance with state service obligations
or where the most efficient or cost-effective solution may not be in-
service in time to satisfy reliability criteria and the decision to
include the project in the plan is made primarily on the basis of
reliability.\100\
---------------------------------------------------------------------------
\98\ See, e.g. MISO Transmission Owners Group 2 and Oklahoma Gas
and Electric Company.
\99\ MISO Transmission Owners Group 2 at 12-13.
\100\ Id. at 14-15 (citing Order No. 1000-A, 139 FERC ] 61,132
at P 430).
---------------------------------------------------------------------------
44. MISO Transmission Owners Group 2 argues, however, that
statements in Order No. 1000-A suggest that the decision regarding
whether a facility is more efficient or cost-effective is irrelevant to
determining whether the requirement to remove federal rights of first
refusal would apply.\101\ MISO Transmission Owners Group 2 argues that
the Commission cites no record evidence or argument in favor of
broadening the definition of transmission facilities selected in a
regional transmission plan for purposes of cost allocation.\102\
Accordingly, MISO Transmission Owners Group 2 asks for the Commission
to clarify that, in order for the requirement to eliminate the federal
right of first refusal to apply, the costs of a transmission facility
must not only be allocated outside of a transmission owner's retail
distribution service territory or footprint and the transmission
facility must have been selected in the regional transmission plan, but
it also must be selected as a more efficient or cost-effective solution
to regional transmission needs. The MISO Transmission Owners Group
requests that the Commission clarify that utilities may retain a right
of first refusal for projects that are selected which may not be the
``more efficient or cost-effective solution to regional transmission
needs.'' \103\
---------------------------------------------------------------------------
\101\ Id. at 13-14 (citing Order No. 1000-A, 139 FERC ] 61,132
at P 430 (``if any costs of a new transmission facility are
allocated regionally or outside of a public utility transmission
provider's retail distribution service territory or footprint, then
there can be no federal right of first refusal associated with such
transmission facility.'')).
\102\ Id. at 18.
\103\ Id. at 15-19.
---------------------------------------------------------------------------
45. MISO Transmission Owners Group 2 also argues that eliminating
the ability of a transmission-owning member of an RTO to construct and
allocate the costs of a local transmission facility encourages free
ridership by providing an incentive for transmission providers to keep
cost allocation within their retail distribution service territory to
retain a right of first refusal for local transmission facilities, even
when entities outside of the retail distribution service territory or
footprint may receive some benefit from such facilities despite their
primarily local nature.\104\
---------------------------------------------------------------------------
\104\ Id. at 19.
---------------------------------------------------------------------------
46. Oklahoma Gas and Electric Company argues that a broader
definition of what constitutes regional cost allocation prohibits
transmission planning regions from adopting approaches they believe
would effectively allocate costs and fairly balance stakeholder
interests.\105\ For instance, Oklahoma Gas and Electric Company states
that the Southwest Power Pool allocates costs using a Highway/Byway
Plan.\106\ Oklahoma Gas and Electric Company asserts that the
Commission should ensure that the Southwest Power Pool can retain its
Highway/Byway Plan for cost allocation by designating lower voltage
facilities as local facilities for purposes of Order No. 1000.\107\
---------------------------------------------------------------------------
\105\ Oklahoma Gas and Electric Company at 6.
\106\ Id. (citing Southwest Power Pool, Inc., 131 FERC ] 61,252
(2010), reh'g denied, 137 FERC ] 61,075 (2011)). Oklahoma Gas and
Electric Company states that the Southwest Power Pool allocates: (1)
100% of the cost of a facility operating at 300 kV or above across
the region on a postage stamp basis; (2) one-third of the cost of a
facility operating above 100 kV and below 300 kV on a regional
postage stamp basis and the remaining two-thirds of the costs to the
zone in which the facility is located; and, (3) all the costs of a
facility operating at or under 100 kV to the zone in which the
facility is located. Id.
\107\ Id.
---------------------------------------------------------------------------
47. Some petitioners request that the Commission clarify that
projects with costs allocated to a single zone should be considered
local, even if the zone consists of more than one public utility
transmission provider, so that the public utility transmission provider
may retain a federal right of first refusal.\108\ AEP contends that the
Commission's proposal to defer evaluation of multi-utility zones until
the compliance filing stage does little to inform ongoing RTO
stakeholder processes tasked with developing compliance filings.\109\
MISO Transmission Owners Group 2 asserts that the Commission failed to
identify any record evidence or argument for its conclusion that
transmission providers located in multi-transmission provider zones
automatically lose their federal rights of first refusal for all
transmission facilities.\110\
---------------------------------------------------------------------------
\108\ See, e.g., AEP and MISO Transmission Owners Group 2.
\109\ AEP at 10-11. AEP cites as an example SPP's stakeholder
process which at the time of AEP's request for clarification, was
debating the interpretation of the Commission's intended treatment
of zones that have long included a single large, traditional load-
serving public utility, as well as several small municipal or
cooperative utilities that are dependent on the transmission system
of the traditional public utility to serve their respective loads.
\110\ MISO Transmission Owners Group 2 at 24.
---------------------------------------------------------------------------
48. MISO Transmission Owners Group 2 also argues that the
Commission's stated concern that such zones might be established to
circumvent Order No. 1000 is misplaced.\111\ In support, MISO
Transmission Owners Group 2 asserts that such zones were established
prior to the issuance of Order No. 1000 and based on decades of
cooperation and collaboration among transmission owners.\112\ In
addition, MISO Transmission Owners Group 2 argues that the Commission's
distinction between multi-transmission provider zones and zones
containing only one transmission provider results in undue
discrimination against transmission providers that happen to be located
in a multi-transmission provider zone.\113\
---------------------------------------------------------------------------
\111\ Id. at 22.
\112\ Id.
\113\ Id. at 26.
---------------------------------------------------------------------------
[[Page 64899]]
49. Oklahoma Gas and Electric Company contends that the Commission
incorrectly claimed in Order No. 1000-A that the scope of Order No.
1000 will be limited. It asserts that, in response to arguments that
the requirement to eliminate the right of first refusal is beyond the
Commission's authority and will materially alter the business of public
utilities, the Commission in Order No. 1000-A emphasized that the
requirement did not extend to local transmission facilities.\114\
Oklahoma Gas and Electric Company asserts that based on the discussion
of zones in Order No. 1000-A, it may not be possible to build a local
facility under the Southwest Power Pool tariff, making all new
construction subject to Order No. 1000.\115\ Similarly, MISO
Transmission Owners Group 2 contends that RTO transmission-owning
members lack individual mechanisms for cost allocation and recovery,
and therefore would have no ability to build and recover the costs of
local transmission facilities as they are defined in Order No.
1000.\116\
---------------------------------------------------------------------------
\114\ Oklahoma Gas and Electric Company at 3-5.
\115\ Id. at 5-6.
\116\ MISO Transmission Owners Group 2 at 23.
---------------------------------------------------------------------------
50. Oklahoma Gas and Electric Company argues that because the
requirement to eliminate provisions that designate incumbent utilities
to construct new transmission facilities is not limited in scope, and
does materially alter the businesses of transmission owning companies,
the Commission should find that there is no sound basis to require that
public utility transmission providers remove such provisions.\117\ In
the alternative, Oklahoma Gas and Electric Company asserts that the
Commission should allow each region to define the scope of local
transmission projects that will not be subject to the new rule.\118\
---------------------------------------------------------------------------
\117\ Oklahoma Gas and Electric Company at 7.
\118\ Id.
---------------------------------------------------------------------------
c. Commission Determination
51. On rehearing of Order No. 1000-A, petitioners have raised two
issues related to Order No. 1000's requirement that public utility
transmission providers remove federal rights of first refusal from
Commission-jurisdictional tariffs and agreements. First, some
petitioners seek rehearing of Order No. 1000-A's determination that if
any of the costs of a new transmission facility are allocated
regionally or outside of a public utility transmission provider's
retail distribution service territory or footprint, then there can be
no federal right of first refusal associated with such transmission
facility. Second, on rehearing some petitioners argue that projects
with costs allocated to a single zone should be considered local, even
if there is more than one public utility transmission provider located
in that zone, so that the public utility transmission provider may
retain a federal right of first refusal under those circumstances. We
deny rehearing and will discuss each of these issues in turn.
52. As noted above, the first issue we address concerns requests
for rehearing of Order No. 1000-A's determination that if any costs of
a new transmission facility are allocated regionally or outside of a
public utility transmission provider's retail distribution service
territory or footprint, then there can be no federal right of first
refusal associated with such transmission facility, except as provided
in Order Nos. 1000 and 1000-A.\119\ Order No. 1000 requires that a
federal right of first refusal be removed for new transmission
facilities selected in a regional transmission plan for purposes of
cost allocation. As noted above, the Commission stated in Order No.
1000 that in general, if any costs of a new transmission facility are
allocated regionally or outside a single transmission provider's retail
distribution service territory or footprint, that is an application of
the regional cost allocation method and that new transmission facility
is not a local transmission facility.\120\ Therefore, once a new
transmission facility is selected in the regional transmission plan for
purposes of cost allocation, it is no longer a local transmission
facility exempt from the requirements of Order Nos. 1000 and 1000-A
regarding the removal of federal rights of first refusal. For this
reason, we deny rehearing on this issue.
---------------------------------------------------------------------------
\119\ Order No. 1000-A, 139 FERC ] 61,132 at P 430.
\120\ Id. P 424 (emphasis added).
---------------------------------------------------------------------------
53. We note that neither Order No. 1000 nor Order No. 1000-A
requires elimination of a federal right of first refusal in all
circumstances.\121\ We also note that the Commission recognized that
issuance of Order No. 1000 may have occurred in the middle of a
transmission planning cycle for a particular region and, therefore,
directed public utility transmission providers to explain in their
respective compliance filings how they intend to implement the
requirements of the Final Rule.\122\ Moreover, public utility
transmission providers are required to describe the circumstances and
procedures under which public utility transmission providers will
reevaluate the regional transmission plan to determine if delays in the
development of a transmission facility selected in a regional
transmission plan for purposes of cost allocation require evaluation of
alternative solutions, including those proposed by the incumbent
transmission provider, to ensure the incumbent transmission provider
can meet its reliability needs or service obligations.\123\ We will
evaluate proposals related to these requirements on review of
compliance filings.
---------------------------------------------------------------------------
\121\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at PP 318-
319.
\122\ Id. P 162. See also id. P 65 (``Our intent here is that
this Final Rule not delay current studies being undertaken pursuant
to existing regional transmission planning processes or impede
progress on implementing existing transmission plans. We direct
public utility transmission providers to explain in their compliance
filings how they will determine which facilities evaluated in their
local and regional planning processes will be subject to the
requirements of this Final Rule.'').
\123\ Order No. 1000-A, FERC Stats. & Regs. ] 31,132 at P 477.
See also Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 329
(``[A]n incumbent transmission provider must have the ability to
propose solutions that it would implement within its retail
distribution service territory or footprint that will enable it to
meet its reliability needs or service obligations.'').
---------------------------------------------------------------------------
54. With respect to the second issue raised by petitioners--whether
a project whose costs are allocated to a single zone with multiple
transmission owners should be considered local and thus permit a public
utility transmission provider to retain a federal right of first
refusal under these circumstances--the Commission recognized in Order
No. 1000-A that special consideration is needed when a small
transmission provider is located within the footprint of another
transmission provider.\124\ The Commission acknowledged that there is a
continuum of situations of multi-transmission provider zones, but opted
to address such situations on compliance. This acknowledgement provides
public utility transmission providers who may have zonal
configurations, such as a zone with a small municipality and one
transmission provider, or one with many public utility and non-public
utility transmission providers, an opportunity to address whether a
cost allocation to a multi-transmission provider zone is regional on a
case-by-case basis based on the specific facts presented. We consider
many of the arguments related to multi-transmission provider zones
premature because the Commission did not adopt a generic rule as to
whether a cost allocation solely to a multi-transmission provider zone
is an application of the regional cost allocation method for which a
[[Page 64900]]
federal right of first refusal must be eliminated. Petitioners have not
presented evidence that would support the Commission making a generic
finding or providing additional guidance for all multi-transmission
provider zones in this rulemaking proceeding. Therefore, on this second
issue, we find that the Commission's determination is a reasonable
balance of competing considerations that enables the Commission to
implement the requirements of Order No. 1000 in a manner that will
achieve the goal of improved transmission planning.
---------------------------------------------------------------------------
\124\ Order No. 1000-A, FERC Stats. & Regs. ] 31,132 at P 424.
---------------------------------------------------------------------------
55. We therefore agree with petitioners that the Commission's
requirements have not entirely eliminated opportunities for free
ridership. As evidenced by the multiple comments and petitions the
Commission received in the Order No. 1000 proceedings, the Commission
balanced many competing interests in determining how to best implement
the requirements of Order No. 1000. Some presented their views of the
advantages of retaining a federal right of first refusal for all new
transmission facilities while others presented their views of the
advantages of eliminating a federal right of first refusal for all new
transmission facilities. The Commission has considered the arguments
raised by petitioners on rehearing with respect to both of the above-
mentioned issues and rejects petitioners' requests for rehearing as we
find that the approach taken in Order Nos. 1000 and 1000-A provides the
best balance of competing considerations.
3. Framework To Evaluate Transmission Projects Submitted for Selection
in the Regional Transmission Plan for Purposes of Cost Allocation
a. Evaluation of Proposals for Selection in the Regional Transmission
Plan for Purposes of Cost Allocation
i. Order No. 1000-A
56. In Order No. 1000-A, the Commission affirmed its decision in
Order No. 1000 to require each public utility transmission provider to
amend its OATT to describe a transparent and not unduly discriminatory
process for evaluating whether to select a proposed transmission
facility in a regional transmission plan for purposes of cost
allocation.\125\ The Commission also reiterated that there are many
different approaches to transmission planning and that Order No. 1000
requires only that the transmission planning process adopted by a
transmission planning region satisfy the transmission planning
principles discussed in Order Nos. 1000 and 1000-A. Accordingly, the
Commission declined to rule in the abstract in advance of the
compliance filings whether any particular transmission planning process
is the only appropriate process for all regions.
---------------------------------------------------------------------------
\125\ Order No. 1000-A, 139 FERC ] 61,132 at P 452.
---------------------------------------------------------------------------
57. The Commission also continued to emphasize that any
qualification criteria or process for selecting transmission facilities
in a regional transmission plan for purposes of cost allocation must be
transparent and not unduly discriminatory.\126\ Finally, the Commission
affirmed its decision that, if a proposed transmission facility is
selected in a regional transmission plan for purposes of cost
allocation, then Order No. 1000 requires that the transmission
developer of that transmission facility (whether incumbent or
nonincumbent) must be able to rely on the relevant cost allocation
method or methods within the region should it move forward with its
transmission project.\127\ The Commission also reiterated that it would
not require public utility transmission providers in a region to adopt
a provision for ongoing sponsorship rights, and pointed out that in
Order No. 1000, the Commission concluded that granting transmission
developers an ongoing right to build sponsored transmission projects
could adversely impact the regional transmission planning process.\128\
Accordingly, the Commission in Order No. 1000-A declined to reverse
this decision on the selection of transmission developers.\129\
---------------------------------------------------------------------------
\126\ Id. PP 439, 452.
\127\ Id. P 456; Order No. 1000, FERC Stats. & Regs. ] 31,323 at
P 339.
\128\ Order No. 1000-A, 139 FERC ] 61,132 at P 456; Order No.
1000, FERC Stats. & Regs. ] 31,323 at P 339.
\129\ Order No. 1000-A, 139 FERC ] 61,132 at P 456; Order No.
1000, FERC Stats. & Regs. ] 31,323 at P 339.
---------------------------------------------------------------------------
ii. Requests for Rehearing and Clarification
58. AEP maintains that some regions are considering a process in
which third parties (e.g., one or more states) select the developer for
a transmission project after the regional planning entity has
identified needed transmission projects in its regional transmission
plan.\130\ AEP asserts that leaving the selection of a project
developer to an entity other than the regional planning body threatens
to lead to suboptimal results.\131\ It argues that the decision as to
which entity is best suited to build a given transmission project
necessarily relies on developer qualifications as assessed by the
transmission provider, and on projected benefits, which will vary among
developers.\132\ It contends that the selection of the best
transmission solution for the region cannot be done effectively without
information about the qualifications and the benefits offered by the
developer for the project.\133\ Accordingly, AEP requests that the
Commission provide clarification to discourage bifurcation of the
planning process.\134\
---------------------------------------------------------------------------
\130\ AEP at 6.
\131\ Id. at 2.
\132\ Id. at 6.
\133\ Id. at 6-7.
\134\ Id. at 6.
---------------------------------------------------------------------------
iii. Commission Determination
59. We decline to clarify in advance of the compliance filings
whether any particular approach to the selection of a transmission
developer is a just and reasonable and not unduly discriminatory or
preferential selection process. Order No. 1000 requires public utility
transmission providers in a region to adopt transparent and not unduly
discriminatory criteria for selecting a new transmission project in a
regional transmission plan for purposes of cost allocation.\135\ It
also requires that if a transmission project is selected in a regional
transmission plan for purposes of cost allocation, the transmission
developer of that transmission facility must be able to rely on the
relevant cost allocation method or methods within the region should it
move forward with the transmission project.\136\ However, the
Commission declined to otherwise address the selection of a
transmission developer on a generic basis.\137\ We continue to believe
that it is not appropriate to address in advance of the compliance
filings the process for selecting transmission developers in greater
detail. Instead, we reaffirm the flexibility that the Commission
provided to the public utility transmission providers in each
transmission planning region to propose a process for selecting
transmission developers in accordance with each transmission planning
region's needs.\138\
---------------------------------------------------------------------------
\135\ E.g., Order No. 1000-A, 139 FERC ] 31,132 at P 455.
\136\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at PP 332,
339; see also Order No. 1000-A, 139 FERC ] 61,132 at P 456.
\137\ E.g., Order No. 1000-A, 139 FERC ] 61,132 at P 455.
\138\ E.g., id.
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C. Interregional Transmission Coordination
60. In Order No. 1000, the Commission required each public utility
[[Page 64901]]
transmission provider, through its regional transmission planning
process, to establish further procedures with each of its neighboring
transmission planning regions for the purpose of: (1) Coordinating and
sharing the results of respective regional transmission plans to
identify possible interregional transmission facilities that could
address transmission needs more efficiently or cost-effectively than
separate regional transmission facilities; and (2) jointly evaluating
such facilities, as well as jointly evaluating those transmission
facilities that are proposed to be located in more than one
transmission planning region.\139\ The Commission also required each
public utility transmission provider, through its regional transmission
planning process, to describe the methods by which it will identify and
evaluate interregional transmission facilities and to include a
description of the type of transmission studies that will be conducted
to evaluate conditions on neighboring systems for the purpose of
determining whether interregional transmission facilities are more
efficient or cost-effective than regional facilities.\140\
---------------------------------------------------------------------------
\139\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 493.
\140\ Id.
---------------------------------------------------------------------------
1. Implementation of the Interregional Transmission Coordination
Requirements
a. Procedure for Joint Evaluation
i. Order No. 1000-A
61. In Order No. 1000-A, the Commission reaffirmed Order No. 1000's
requirement that an interregional transmission facility must be
selected in each relevant regional transmission plan for purposes of
cost allocation to be eligible for cost allocation under the
interregional cost allocation method or methods.\141\ The Commission
explained that Order No. 1000 establishes a closer link between
transmission planning and cost allocation. Additionally, the Commission
stated that Order No. 1000 provides for stakeholder involvement in the
consideration of an interregional transmission facility primarily
through the regional transmission planning processes.\142\ The
Commission concluded that this requirement is necessary to ensure that
stakeholders have an opportunity to provide meaningful input with
respect to proposed interregional transmission facilities before such
facilities are selected in each relevant regional transmission plan for
purposes of cost allocation.\143\
---------------------------------------------------------------------------
\141\ Order No. 1000-A, 139 FERC ] 61,132 at P 509 (citing Order
No. 1000, FERC Stats. & Regs. ] 31,323 at P 436).
\142\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 465; see
also id. P 443.
\143\ Order No. 1000-A, 139 FERC ] 61,132 at P 509.
---------------------------------------------------------------------------
62. Additionally, the Commission acknowledged that, under the
interregional transmission coordination procedures of Order No. 1000,
an interregional transmission facility is unlikely to be selected for
interregional cost allocation unless each transmission planning region
benefits or the transmission planning region that benefits compensates
the region that does not through a separate agreement. The Commission
expressed its continued belief that, under the regional transmission
planning approach adopted in Order No. 1000, it is appropriate for each
transmission planning region to determine for itself whether to select
in its regional transmission plan for purposes of cost allocation an
interregional transmission facility that extends partly within its
regional footprint based on the information gained during the joint
evaluation of an interregional transmission project.\144\
---------------------------------------------------------------------------
\144\ Id. P 512.
---------------------------------------------------------------------------
ii. Requests for Rehearing and Clarification
63. AEP requests clarification that the inclusion of an
interregional project in a regional plan need not be subject to the
same benefits tests that would be applied to a single-region project,
and that a region may include an interregional project in its plan if
the benefits to the region compare favorably to the share of the costs
that would be borne by that region (as distinct from the total project
costs).\145\ Specifically, it states that in determining the costs and
benefits of a proposed interregional transmission project for the
purposes of the selection process, a regional transmission planning
entity should be permitted to evaluate the benefits provided to an
affected region and assume that a portion of the costs of the project
will be allocated to the affected region.\146\ For example, if a $100
million interregional project would have $180 million in benefits split
evenly between two adjacent regions, both regions would find the
project beneficial and would include it in the regional plan, if they
assumed that one-half of the cost would be borne by each region.\147\
---------------------------------------------------------------------------
\145\ AEP at 2, 7.
\146\ Id. at 8.
\147\ Id.
---------------------------------------------------------------------------
iii. Commission Determination
64. Order No. 1000 did not specify whether or how a regional or
interregional benefit-cost threshold should be applied when selecting a
project in the regional transmission plan for purposes of cost
allocation, or which costs should be included when calculating a
benefit-cost threshold to use in this selection process. This was to
provide the opportunity for each region to develop an appropriate
calculation, if it chose to use a threshold at all. Therefore, we
decline to clarify in advance of the compliance filings how a benefit-
cost threshold should be applied.
III. Cost Allocation
65. In Order No. 1000, the Commission required that each public
utility transmission provider have in its OATT a method, or set of
methods, for allocating the costs of new regional transmission
facilities selected in the regional transmission plan for purposes of
cost allocation (``regional cost allocation''); and that each public
utility transmission provider within two (or more) neighboring
transmission planning regions develop a method, or set of methods, for
allocating the costs of new interregional transmission facilities that
each of the two (or more) neighboring transmission planning regions
selected for purposes of cost allocation because such facilities would
resolve the individual needs of each region more efficiently or cost-
effectively (``interregional cost allocation'').\148\ The Commission
required that the OATTs of all public utility transmission providers in
a region include the same cost allocation method or methods adopted by
the region.\149\
---------------------------------------------------------------------------
\148\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 482. For
purposes of Order No. 1000, a regional transmission facility is a
transmission facility located entirely in one region. An
interregional transmission facility is one that is located in two or
more transmission planning regions. A transmission facility that is
located solely in one transmission planning region is not an
interregional transmission facility. Id. P 482 n.374.
\149\ Order No. 1000-A, 139 FERC ] 61,132 at P 523.
---------------------------------------------------------------------------
66. The Commission also required that regional and interregional
cost allocation methods each adhere to six regional and interregional
cost allocation principles: (1) Costs must be allocated in a way that
is roughly commensurate with benefits; (2) there must be no involuntary
allocation of costs to non-beneficiaries; (3) a benefit to cost
threshold ratio cannot exceed 1.25; (4) costs must be allocated solely
within the transmission planning region
[[Page 64902]]
or pair of regions unless those outside the region or pair of regions
voluntarily assume costs; (5) there must be a transparent method for
determining benefits and identifying beneficiaries; and (6) there may
be different methods for different types of transmission
facilities.\150\ The Commission directed that, subject to these general
cost allocation principles, public utility transmission providers in
consultation with stakeholders would have the opportunity to agree on
the appropriate cost allocation methods for their new regional and
interregional transmission facilities, subject to Commission
approval.\151\ The Commission also found that if public utility
transmission providers in a region or pair of regions could not agree,
the Commission would use the record in the relevant compliance filing
proceeding(s) as a basis to develop a cost allocation method or methods
that meets the Commission's requirements.\152\ Finally, the Commission
emphasized that its cost allocation requirements are designed to work
in tandem with its transmission planning requirements to identify more
appropriately the benefits and the beneficiaries of new transmission
facilities so that transmission developers, planners and stakeholders
can take into account in the transmission planning process who would
bear the costs of transmission facilities, if constructed.\153\
---------------------------------------------------------------------------
\150\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at PP 622-
693.
\151\ Id. P 588.
\152\ Id. P 482.
\153\ Id. P 483.
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1. Cost Allocation Principle 2--No Involuntary Allocation of Costs to
Non-Beneficiaries
a. Order Nos. 1000 and 1000-A
67. In Order No. 1000, the Commission adopted the following Cost
Allocation Principle 2 for both regional and interregional cost
allocation:
Regional Cost Allocation Principle 2: Those that receive no
benefit from transmission facilities, either at present or in a
likely future scenario, must not be involuntarily allocated any of
the costs of those transmission facilities.
and
Interregional Cost Allocation Principle 2: A transmission
planning region that receives no benefit from an interregional
transmission facility that is located in that region, either at
present or in a likely future scenario, must not be involuntarily
allocated any of the costs of that transmission facility.\154\
---------------------------------------------------------------------------
\154\ Id. P 637.
68. The Commission also required that every cost allocation method
or methods provide for allocation of the entire prudently incurred cost
of a transmission project to prevent stranded costs.\155\
---------------------------------------------------------------------------
\155\ Id. P 640.
---------------------------------------------------------------------------
69. On rehearing, the Commission affirmed Order No. 1000's adoption
of Regional and Interregional Cost Allocation Principle 2. The
Commission explained that scenario analysis is a common feature of
electric power system planning, and that it believed that public
utility transmission providers are in the best position to apply it in
a way that achieves appropriate results in their respective
transmission planning regions.\156\ The Commission also found that the
use of ``likely future scenarios'' would not expand the class of
customers who would be identified as beneficiaries because it is
limited to scenarios in which a beneficiary is identified as such on
the basis of the cost causation principle.
---------------------------------------------------------------------------
\156\ Id.
---------------------------------------------------------------------------
70. The Commission clarified that public utility transmission
providers may rely on scenario analyses in the preparation of a
regional transmission plan and the selection of new transmission
facilities for cost allocation purposes. If a project or group of
projects is shown to have benefits in one or more of the transmission
planning scenarios identified by public utility transmission providers
in their Commission-approved Order No. 1000-compliant cost allocation
methods, Principle 2 would be satisfied.
b. Requests for Rehearing or Clarification
71. Organization of MISO States argues that the Commission erred in
paragraph 690 of Order No. 1000-A when it concluded that if a project
or group of projects is shown to have benefits in any one of the
transmission planning scenarios studied by a public utility
transmission provider in its planning process, then the conditions for
satisfaction of Cost Allocation Principle 2 will be determined to have
been met. It contends that, in response to ITC Companies' request for
clarification, the Commission stated that a ``likely future scenario''
that would justify an allocation of costs for new transmission
facilities includes the transmission planning scenarios being used by a
transmission provider to prepare a regional transmission plan.\157\
Organization of MISO States is concerned that the Commission's
clarification reads out of Principle 2 the concept of the likelihood of
a future scenario by suggesting that Principle 2 would be satisfied if
benefits are shown under any scenario studied by the transmission
provider in its planning process.\158\ Accordingly, Organization of
MISO States requests that the Commission clarify that its discussion in
paragraph 690 of Order No. 1000-A only applies to likely future
scenarios as required by Principle 2.
---------------------------------------------------------------------------
\157\ Organization of MISO States at 2 (quoting Order No. 1000-
A, 139 FERC ] 61,132 at P 690 (``If a project or group of projects
is shown to have benefits in one or more of the transmission
planning scenarios identified by public utility transmission
providers in their Commission-approved Order No. 1000-compliant cost
allocation methods, Principle 2 would be satisfied.'')).
\158\ Id.
---------------------------------------------------------------------------
c. Commission Determination
72. We clarify that in finding that Cost Allocation Principle 2
would be satisfied if a project or group of projects is shown to have
benefits in one or more of the transmission planning scenarios
identified by public utility transmission providers in their
Commission-approved Order No. 1000-compliant cost allocation methods,
we did not intend to remove the ``likely future scenarios'' concept
from transmission planning. We believe the evaluation of likely future
scenarios can be an important factor in public utility transmission
providers' consideration of transmission projects and in the
identification of beneficiaries consistent with the cost causation
principle.
IV. Information Collection Statement
73. The Office of Management and Budget (OMB) regulations require
that OMB approve certain information collection requirements imposed by
an agency.\159\ The revisions in Order Nos. 1000 and 1000-A to the
information collection requirements were approved under OMB Control No.
1902-0233. While this order provides clarification, it does not modify
any information collection requirements. Accordingly, a copy of this
order will be sent to OMB for informational purposes only.
---------------------------------------------------------------------------
\159\ 5 CFR 1320.11.
---------------------------------------------------------------------------
V. Document Availability
74. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A,
Washington, DC 20426.
75. From the Commission's Home Page on the Internet, this
information is
[[Page 64903]]
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
76. User assistance is available for eLibrary and the Commission's
Web site during normal business hours from FERC Online Support at 202-
502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
VI. Effective Date
77. Changes to Order Nos. 1000 and 1000-A made in this order on
rehearing and clarification will be effective on November 23, 2012.
By the Commission. Commissioner LaFleur is dissenting in part with
a separate statement. Commissioner Clark is not participating.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
Note: The following appendices will not be published in the
Code of Federal Regulations.
Appendix A: Abbreviated Names of Petitioners
------------------------------------------------------------------------
Abbreviation Petitioner names
------------------------------------------------------------------------
AEP.......................................... American Electric Power
Service Corporation.
MISO Transmission Owners Group 2............. The Midwest ISO
Transmission Owners for
this filing consist of:
Ameren Services Company,
as agent for Union
Electric Company d/b/a
Ameren Missouri, Ameren
Illinois Company d/b/a
Ameren Illinois and
Ameren Transmission
Company of Illinois;
City Water, Light &
Power (Springfield, IL);
Dairyland Power
Cooperative; Great River
Energy; Hoosier Energy
Rural Electric
Cooperative, Inc.;
Indianapolis Power &
Light Company;
MidAmerican Energy
Company; Minnesota Power
(and its subsidiary
Superior Water, L&P);
Montana-Dakota Utilities
Co.; Northern Indiana
Public Service Company;
Northern States Power
Company, a Minnesota
corporation, and
Northern States Power
Company, a Wisconsin
corporation,
subsidiaries of Xcel
Energy Inc.;
Northwestern Wisconsin
Electric Company; Otter
Tail Power Company;
Southern Illinois Power
Cooperative; Southern
Indiana Gas & Electric
Company (d/b/a Vectren
Energy Delivery of
Indiana); Southern
Minnesota Municipal
Power Agency; and
Wolverine Power Supply
Cooperative, Inc.
Oklahoma Gas and Electric Company............ Oklahoma Gas and Electric
Company.
Organization of MISO States.................. Illinois Commerce
Commission; Indiana
Utility Regulatory
Commission; Iowa
Utilities Board;
Kentucky Public Service
Commission; Michigan
Public Service
Commission; Minnesota
Public Utilities
Commission; Missouri
Public Service
Commission; Wisconsin
Public Service
Commission; and Montana
Public Service
Commission.
Transmission Access Policy Study Group....... Transmission Access
Policy Study Group.
------------------------------------------------------------------------
LaFLEUR, Commissioner, dissenting in part:
As part of today's order, the Commission affirms its holding in
Order No. 1000-A that an incumbent transmission provider may not
retain a federal right of first refusal (ROFR) for a new
transmission project--even a local reliability project--if that
project receives any amount of regional funding.\1\ After further
consideration, I believe this decision is premature and denies
transmission-planning regions the flexibility to define local
projects. I am now persuaded that the Commission should have
deferred judgment on this issue until compliance, where it could
have evaluated--on a case-by case-basis--proposals to define local
projects in light of the principles underlying elimination of the
ROFR and the requirement that costs must be allocated in a manner
that is at least roughly commensurate with benefits. Because I would
grant rehearing on this point, and defer the issue to compliance, I
respectfully dissent in part from today's order.
---------------------------------------------------------------------------
\1\ Transmission Planning and Cost Allocation by Transmission
Owning and Operating Public Utilities, Order No. 1000, 76 FR 49842
(Aug. 11, 2011), FERC Stats. & Regs. ] 31,323 (2011), order on
reh'g, Order No. 1000-A, 77 FR 32184 (May 31, 2012), 139 FERC ]
61,132 at P 430 (2012).
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In Order No. 1000, the Commission eliminated the ROFR for
projects ``selected in a regional transmission plan for purposes of
cost allocation'' but allowed it to continue for local projects.\2\
In response, certain petitioners requested guidance as to whether
the requirement to remove the ROFR for projects ``selected in a
regional transmission plan for purposes of cost allocation''
required eliminating it in two specific situations: First, when
costs are allocated only to multiple transmission providers within a
single, local zone; and second, when local reliability projects
receive some amount of regional funding as part of a cost allocation
methodology.\3\ In essence, petitioners requested clarification as
to whether these specific cost allocation mechanisms converted
otherwise local reliability projects to regional projects for
purposes of eliminating the ROFR.
---------------------------------------------------------------------------
\2\ Order No. 1000, FERC Stats. & Regs. ] 31,323 at PP 313, 318;
see also P 63 (defining local projects).
\3\ Order No. 1000-A, 139 FERC ] 61,132 at PP 409-410; see also
n. 495 (examples of cost allocation methodologies reflecting
distinctions between regional and local projects that were
previously approved by the Commission.).
---------------------------------------------------------------------------
With respect to the question about zones, in Order No. 1000-A
the Commission acknowledged that ``there may be a continuum of
examples'' that require fact specific determinations.\4\ Rather than
lay down a categorical rule, the Commission opted for flexibility
and invited parties to raise their specific situations on
compliance.\5\ Today's order affirms this approach.
---------------------------------------------------------------------------
\4\ Id. P 424.
\5\ Id.
---------------------------------------------------------------------------
In contrast, in Order 1000-A the Commission did reach a
definitive conclusion with respect to whether any amount of regional
funding converts an otherwise local reliability project in to a
regional project for purposes of the ROFR. The Commission clarified,
without explanation,\6\ that the ROFR must be eliminated if a
project receives any amount of regional funding.\7\ As a result, a
local reliability project that receives any amount of regional
funding, no matter how small, is no longer local for purposes of the
ROFR. Today's order summarily affirms this decision.
---------------------------------------------------------------------------
\6\ For example, the Commission did not explain, in light of its
distinction in Order No, 1000 between projects in a regional plan
and projects ``selected in a regional transmission plan for purposes
of cost allocation,'' why eliminating the ROFR for projects
``selected in a regional transmission plan for purposes of cost
allocation'' requires eliminating it for local projects that are
primarily locally funded.
\7\ Id. P 430.
---------------------------------------------------------------------------
After further consideration, I believe the Commission acted
prematurely in concluding that any amount of regional funding
converts an otherwise local reliability project to a regional
project for purposes of the ROFR. By reaching this conclusion in the
abstract, without the benefit of considering stakeholder-vetted
proposals to define local projects in light of the principles
underlying elimination of the ROFR and the requirement that costs
must be allocated in a manner that is at least roughly commensurate
with
[[Page 64904]]
benefits, the Commission has denied transmission planning regions
the flexibility it wisely acknowledged to be necessary with respect
to the zone issue. I agree with SPP and OGE that we should provide
that flexibility.\8\
---------------------------------------------------------------------------
\8\ In its request for clarification of Order 1000-A, SPP seeks
guidance on how to reconcile the definitions and principles
underlying Order No. 1000 with the Commission's summary
determination in Order No. 1000-A that any amount of regional
funding for local reliability projects requires elimination of the
ROFR. See SPP Request for Clarification at 7-16. Unlike my
colleagues, I believe that SPP's filing may properly be
characterized as a request for clarification, and therefore, should
be addressed in this order. However, I would not reach the merits of
SPP's arguments. Instead, I would grant rehearing on the grounds
that the Commission should have deferred deciding the issue until
compliance and invite SPP to make its arguments on compliance.
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In Order No. 1000, the Commission balanced many competing policy
considerations in an effort to adopt the reforms necessary to assure
just and reasonable rates.\9\ This balance may be most pronounced in
the Commission's efforts to ensure that the regional planning
process is broad, inclusive, and fair, while at the same time,
mindful of the obligations and attributes of incumbent transmission
providers. The Commission also went to great lengths to provide
transmission-planning regions with the flexibility to negotiate cost
allocation methodologies that allocate costs in a manner that they
believe is at least roughly commensurate with benefits. Where the
mutual achievement of these objectives raises complex questions, as
it does with respect to whether any amount of regional funding
converts an otherwise local reliability project in to a regional
project for purposes of the ROFR, the Commission should decide the
issue on compliance, with a record, rather than by establishing
categorical rules that may undermine the planning and cost
allocation goals Order No. 1000 was intended to achieve.\10\
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\9\ Order 1000-B at P 55.
\10\ See e.g. OGE Request for Rehearing at 6 (``[T]he broad
definition of what constitutes regional cost allocation would
prohibit regional entities such as SPP from adopting approaches they
believe would effectively allocate costs and fairly balance
stakeholder interests.'').
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Accordingly, I respectfully dissent in part.
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Cheryl A. LaFleur,
Commissioner.
[FR Doc. 2012-26111 Filed 10-23-12; 8:45 am]
BILLING CODE 6717-01-P