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Federal Register / Vol. 86, No. 59 / Tuesday, March 30, 2021 / Rules and Regulations Commissions treatment of our jurisdictional markets. The same Commission that asserts jurisdiction over distribution resources and demand response, seemingly to protect the wholesale markets, enthusiastically permits the states to suppress wholesale capacity market prices through renewable subsidy programs. We issue such an order today in a ruling that inexplicablyholds that an expansive Virginia tax break that overwhelmingly targets new solar resources is not a state subsidy under PJMs minimum offer price rule because other types of pollution controls also qualify for the relief.13 The notion that the Commission acts to protect wholesale markets when it deprives the states of their authority over local concerns that may affect those markets cannot be squared with our simultaneous decisions granting the states broad latitude to distort the same markets.
10. As a final thought, I would simply issue a warning. The Commissions longstanding policy has been to promote the development of RTOs and ISOs.14
As the march of federal overreach into the retail and distribution operations of RTO participants proceeds apace, it becomes increasingly difficult to imagine why any utility that has not already joined an RTO would even consider joining or forming a new one.
Assertion of jurisdiction, especially when exercised inconsistently and in tension with the statute, will do nothing to encourage the development of our markets.
11. In sum, I would decline to exercise our jurisdiction over distributed energy resource aggregations, including both the sales and interconnections of qualifying facilities participating in a distributed energy resource aggregation, whether the sole resource in the aggregation or not.
For these reasons, I respectfully dissent.

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James P. Danly, Commissioner.
13 See Hollow Road Solar LLC, 174 FERC 61,200
2021.
14 See, e.g., Regl Transmission Orgs., Order No.
2000, FERC Stats. & Regs. 31,089 1999 crossreferenced at 89 FERC 61,285, order on rehg, Order No. 2000A, FERC Stats. & Regs. 31,092
2000 cross-referenced at 90 FERC 61,201, affd sub nom. Pub. Util. Dist. No. 1 of Snohomish Cty.
v. FERC, 272 F.3d 607 D.C. Cir. 2001; Order No.
719, 125 FERC 61,071 at P 1 National policy has been, and continues to be, to foster competition in wholesale electric power markets. This policy was embraced in the Energy Policy Act of 2005 . . . and is reflected in Commission policy and practice.
citation omitted.

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Department of Energy Federal Energy Regulatory Commission Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators; Docket No.
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CHRISTIE, Commissioner, dissenting:
1. Today the majority doubles down on siding with commercial interests seeking entry into the RTO/ISO markets and against the states and other authorities 1 whose job is to defend the public, not private, interest.2 By doing so, the majority also sides against the consumers who for years to come will almost surely pay billions of dollars for grid expenditures likely to be rate-based in the name of Order 2222
compliance. 3
2. It is indeed ironic that at the same time we hear many, including some members of this Commission, demanding that FERC respect state public policies in capacity markets instead of imposing MOPR-type rules and I have agreed with trying to accommodate state policies in RTO
markets, this order goes in the exact opposite direction. So apparently respect for state public policies only applies when states are doing what some want.
3. Sadly, instead of making the states, municipal and public-power authorities and electric co-operatives truly equal partners in managing the timing and 1 Other Relevant Electric Retail Regulatory Authorities RERRAs, as referenced in both Orders No. 2222 and 2222A, include municipal and public-power authorities, and electric co-operatives, all of whom face costly operational compliance challenges. See, e.g., November 6, 2019 Reply Comments of the National Rural Electric Cooperative Association NRECA at 36, February 13, 2017 Comments of American Public Power Association APPA and NRECA at 22; see also April 17, 2019 Supplemental Comments of APPA
and NRECA at 23, 56.
2 See also June 26, 2018 Comments of the National Association of Regulatory Utility Commissioners NARUC at 34 State commissions, like FERC, are required to act in the public interest. The limited opt-out provision envisions a scenario in which an entity that is solely motivated by its commercial interests makes a unilateral decision about its participation before the State commission can determine whether this distribution asset should participate in that market, which puts profits before State responsibilities.
FERC should not eschew cooperative federalism and attempt to give control over resource adequacy and other crucial State decisions to a commercial stakeholder instead of FERCs longstanding partners in energy regulation, State commissions.
3 Technically speaking, Order No. 2222A is issued today in response to requests for rehearing of Order No. 2222, approved by the Commission last September, when I was not a member. It keeps all the worst aspects of Order No. 2222 largely intact; the relatively minor changes it does make, render Order No. 2222 even worse in its infringement on state policies and potential costly impact on consumers.

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conditions of deployment of behind-themeter DERs in ways that are sensitive to local needs and challengesboth technical and economictodays order denies them any meaningful control by prohibiting any opt-out or opt-in options except in relatively tiny circumstances. This orderand its predecessorintentionally seize from the states and other authorities their historic authority to balance the competing interests of deploying new technologies while maintaining grid reliability and protecting consumers from unaffordable costs.
4. A rapid concentration of behindthe-meter aggregated DERs at various locations on the local grid will inevitably require costly upgrades to a distribution grid that has largely been engineered to deliver power from the substation to end-user retail customers.
Meeting the technological challenges of this re-engineering of the local grid are not insuperable but there are substantial costs and we all know these costs will ultimately be imposed on retail consumers. States, public-power authorities and co-operatives are far better positioned to manage these costs and competing interests in their own areas of responsibility than FERC.4
5. Order No. 2222A is not cooperative federalism, 5 but its opposite. It undermines the overarching policy framework that Congress incorporated into the Federal Power Act decades ago: Federal regulation of wholesale rates and the bulk power system; state regulation of retail rates and the local distribution grid. Any argument that allowing state policies to determine the entry of aggregated DERS
into capacity or other markets will result in a checkerboard or patchwork of different policies, is an argument against state authority itself. The 4 While Order No. 2222A ostensibly leaves state regulators in charge of interconnection, that apparent authority is merely an illusion if state regulators are blocked from the fundamental decision whether interconnection for purposes of entry by aggregators into RTO markets is worth the costs to all consumers of the system upgrades necessary to protect reliability. Even more practically, this order invites endless litigation as commercial interests seeking entry into RTO
markets challenge state interconnection policies as illegal barriers to entry and use litigation as a weapon against the state regulators, public-power authorities and co-operatives, which are limited in the resources they have available to fight such litigation. See, e.g., Order No. 2222A at P 83
Consistent with the goals of Order No. 2222, the Commission will evaluate on compliance whether an RTOs/ISOs proposal delineates a role for RERRAs that would result in unjust and unreasonable limits on the participation of distributed energy resource aggregators in wholesale markets. footnote omitted emphasis added.
5 FERC v. Elec. Power Supply Assn, 136 S. Ct.
760, 780 2016.

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