States cannot be granted filing rights under Section 205 of the Federal Power Act

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Joseph Kelliher is principal of Joseph Kelliher Consulting, former chairman of the Federal Energy Regulatory Commission and former executive vice president of federal regulatory affairs for NextEra Energy.

One of the proposals advanced in the record of the PJM Interconnection governance proceeding at the Federal Energy Regultory Commission is recommendations by the Organization of PJM States, or OPSI, that both PJM and PJM transmission owners be required to make Federal Power Act Section 205 filings at OPSI’s behest. The rationale offered by the states is that “PJM’s governance structure and stakeholder process were developed for a different era.” It may be a different era, but it is still the same Federal Power Act.

Joseph Kelliher

In my opinion, these recommendations are not consistent with the Federal Power Act. Perhaps the best explanation why comes from then-Judge Stephen Breyer in Massachusetts Dept. of Public Utilities v. FERC. Future Justice Breyer explains the Federal Power Act provides two tracks to change a public utility tariff: Section 205 and Section 206.