156 FERC ¶ 61,164
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Norman C. Bay, Chairman;
Cheryl A. LaFleur, Tony Clark,
and Colette D. Honorable.
Competitive Transmission DevelopersDocket No. EL16-84-000
v.
New York Independent System Operator, Inc.
ORDER DENYING COMPLAINT
(Issued September 8, 2016)
1. On June 10, 2016, Boundless Energy NE, LLC (Boundless Energy), CityGreen
Transmission, Inc. and Miller Bros. (collectively, Competitive Transmission Developers
or CTD)1 filed a complaint against the New York Independent System Operator, Inc.
(NYISO), under sections 206 and 306 of the Federal Power Act (FPA),2 alleging that
NYISO violated its Open Access Transmission Tariff (OATT) in its latest project
solicitation to address public policy transmission needs identified by the New York State
Public Service Commission (New York Commission). For the reasons discussed below,
we deny CTD’s complaint.
1 Boundless Energy is a developer of non-utility transmission and generation
projects, and was the original developer of the Neptune Regional Transmission System’s high-voltage direct current (HVDC) cable. CityGreen Transmission, Inc. is a
nonincumbent transmission developer interested in developing HVDC and alternating current transmission facilities. Miller Bros. is a utility contracting company.
2 16 U.S.C. §§ 824e, 825e (2012).
Docket No. EL16-84-000- 2 -
I.Background
2.In 2012, prior to the time that NYISO’s Order No. 10003 transmission planning
process became effective, the New York Commission initiated a series of proceedings to consider potential actions to address insufficient transmission capacity between upstate generation and downstate consumers on New York’s alternating current (AC) bulk
electric transmission system.4
3. On August 1, 2014, NYISO began its first public policy transmission planning
process under Order No. 10005 by requesting that interested parties submit proposed
transmission needs driven by public policy requirements.6 NYISO received proposed
transmission needs from eight parties, and provided them to the New York Commission.7
4. Subsequently, the New York Commission expanded its ongoing 2012 proceeding
to incorporate the proposed transmission needs it received from NYISO.8 The New York
Commission sought revised proposals from transmission owners and developers that
would improve existing aging transmission infrastructure and increase Upstate
New York/Southeast New York (“UPNY/SENY”) transfer capacity.9 The New York
Commission received 22 revised proposals from four entities or groups, including
3 Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, Order No. 1000, FERC Stats. & Regs. ¶ 31,323, at P 203 (2011), order on reh’g, Order No. 1000-A, 139 FERC ¶ 61,132, order on reh’g and clarification, Order No. 1000-B, 141 FERC ¶ 61,044 (2012), aff’d sub nom. S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41 (D.C. Cir. 2014).
4 Complaint at 10.
5 NYISO’s Order No. 1000 transmission planning process became effective January 1, 2014. New York Independent System Operator, Inc., 148 FERC ¶ 61,044, at P 37 (2013).
6 Complaint, Attachment D at 1.
7 Id.
8 Complaint at 10-11.
9 Complaint, Attachment E at 9.
Docket No. EL16-84-000- 3 -
Boundless Energy,10 and it directed the New York Commission Staff, with the assistance of NYISO, to evaluate the project proposals.11 On September 22, 2015, the New York
Commission Staff issued its final report endorsing two transmission project portfolios,
and finding that three developers had proposed portfolios of transmission projects that
were comparable to the endorsed portfolios.12 Following this report, the New York
Commission held hearings, and directed additional analysis based on its own planning
parameters, data, and inquires.13
5. On December 17, 2015, the New York Commission issued an order (December 17
Order)14 adopting the New York Commission Staff’s recommendations on public policy
requirements, and identifying Segments A and B as public policy transmission needs
(collectively, AC Transmission Needs),15 as follows: (1) Segment A - Edic/Marcy to
New Scotland; Princetown to Rotterdam;16 and (2) Segment B - Knickerbocker to
10 Boundless Energy submitted an application for its Leeds Path West Project,
which utilized HVDC technology. Id.; Attachment A, Tompkins Affidavit at P 5.
11 Complaint at 9-10.
12 Id. at 11; Attachment E at 12.
13 Complaint at 11.
14 Case 14-E-0454, In the Matter of New York Independent System Operator,
Inc.’s Proposed Public Policy Transmission Needs for Consideration, Order Addressing Public Policy Requirements for Transmission Planning Purposes (December 17, 2015). For a copy of the December 17 Order, see Complaint, Attachment E.
15 Complaint, Attachment E at 66-68 and Appendix A.
16 Construction of a new 345 kV line from Edic or Marcy to New Scotland on existing right-of-way (primarily using Edic to Rotterdam right-of-way west of
Princetown); construction of two new 345 kV lines or two new 230 kV lines from
Princetown to Rotterdam on existing Edic to Rotterdam right-of-way; decommissioning of two 230 kV lines from Edic to Rotterdam; related switching or substation work at Edic or Marcy, Princetown, Rotterdam and New Scotland.
Docket No. EL16-84-000- 4 -
Pleasant Valley;17 Upgrades to the Rock Tavern Substation;18 and Shoemaker to Sugarloaf.19
6. The New York Commission’s December 17 Order20 also identified evaluation
criteria and analyses for NYISO to apply in evaluating proposed solutions to the AC
Transmission Needs,21 which included, among other things, that: (1) proposed solutions
to Segment A must include all project components included in Segment A, and must
provide at least a 350 MW increase to the Central East interface transfer capability;
(2) proposed solutions to Segment B must include all project components included in
Segment B, and must provide at least a 900 MW increase to the UPNY/SENY interface
transfer capability; (3) no Public Policy Transmission Project will be selected for
Segment A unless a Public Policy Transmission Project will be selected for Segment B;
17 Construction of a new double circuit 345 kV/115 kV line from Knickerbocker
to Churchtown on existing Greenbush to Pleasant Valley right-of-way; construction of a
new double circuit 345 kV/115 kV line or triple circuit 345 kV/115 kV/115 kV line from
Churchtown to Pleasant Valley on existing Greenbush to Pleasant Valley right-of-way;
decommissioning of a double circuit 115 kV line from Knickerbocker to Churchtown;
decommissioning of one or two double-circuit 115 kV lines from Knickerbocker to
Pleasant Valley; construction of a new tap of the New Scotland-Alps 345 kV line and
new Knickerbocker switching station; related switching or substation work at Greenbush, Knickerbocker, Churchtown and Pleasant Valley substations.
18 New line traps, relays, potential transformer upgrades, switch upgrades, system
control upgrades and the installation of data acquisition measuring equipment and control
wire needed to handle higher line currents that will result as a consequence of the new
Edic/Marcy to New Scotland, Princetown to Rotterdam and Knickerbocker to Pleasant
Valley lines.
19 Construction of a new double circuit 138 kV line from Shoemaker to Sugarloaf
on existing Shoemaker to Sugarloaf right-of-way; decommissioning of a double circuit
69 kV line from Shoemaker to Sugarloaf; related switching or substation work at Shoemaker, Hartley, South Goshen, Chester, and Sugarloaf.
20 On March 18, 2016, Boundless Energy filed appeals of the New York
Commission’s December 17 Order in two New York state courts, and it is seeking a stay
of the New York Commission’s proceeding. Id.; Attachment A, Tompkins Affidavit
at P 14.
21 See also Complaint, Attachment D at Attachment II.
Docket No. EL16-84-000- 5 -
(4) the selection process shall favor Public Policy Transmission Projects that result in
upgrades to aging infrastructure; and (5) no acquisition is required of any new permanent transmission rights-of-way, except for de minimis acquisitions that cannot be avoided due to unique circumstances,22 and there is no crossing of the Hudson River.
7. On February 29, 2016, NYISO issued a competitive project solicitation
(Solicitation), requesting interested parties to submit solutions to the AC Transmission
Needs identified by the New York Commission.23 The Solicitation included an
Attachment I, a copy of the New York Commission’s description of Segments A and B,
and an Attachment II, a list of evaluation criteria that the New York Commission had
directed NYISO to apply when evaluating transmission solutions. Solicitation responses
were due April 29, 2016, and Boundless Energy did not submit a response to the
Solicitation. NYISO is currently conducting an evaluation of the viability and
sufficiency of the responses.
II.Complaint
8.CTD asserts that NYISO violated its OATT in its Solicitation to address the
AC Transmission Needs identified by the New York Commission. Specifically, CTD
contends that NYISO improperly surrenders its responsibilities to the New York
Commission because NYISO: (1) fails to review all viable technical solutions,
including transmission, alternative technologies, generation, and non-wires solutions;24
(2) delegates its planning functions to the New York Commission;25 and (3) limits its role
in the Solicitation to a ministerial one in which NYISO simply selects the lowest cost
project bid to develop the New York Commission’s preferred projects.26 Therefore, CTD
requests that the Commission direct NYISO to reissue its Solicitation to ensure that the
Solicitation seeks project solutions to meet identified public policy transmission needs,
22 The evaluation criteria specify that the transfer or lease of existing transmission
right-of-way property or access rights from a current utility company owner to a
developer is not considered an acquisition. Complaint, Attachment D at Attachment II.
23 Complaint, Attachment D.
24 Id. at 3, 17.
25 Id. at 15 (citing OATT, Attachment Y, § 31.4.8) and 19.
26 Id. at 16.
Docket No. EL16-84-000- 6 -
consistent with the intent and purpose of Order No. 1000 and NYISO’s public policy transmission planning process contained in its OATT.
9. CTD alleges that the Solicitation surrenders key aspects of NYISO’s planning
responsibilities to the New York Commission. CTD explains that NYISO’s public policy
transmission planning process requires NYISO to perform the planning function.27 CTD
further explains that the OATT requires NYISO to solicit a wide range of possible
transmission solutions to address public policy transmission needs, and it obligates
NYISO to evaluate each of the proposals.28 CTD argues that the Solicitation, as
structured, however, eliminates the chance for alternative, innovative, and cost-effective
solutions to transmission needs, such as an intrastate transmission solution that deviates
from the New York Commission’s preferred intrastate transmission solution, an
Interregional Transmission Project, an HVDC transmission line, or some other
transmission solution.29 CTD also asserts that the Solicitation limits the solution to the
specific transmission projects the New York Commission identified, and prevents
NYISO from independently reviewing the project solutions, consistent with its OATT
obligations.30
10. CTD contends that NYISO’s delegation of its transmission planning
responsibilities to the New York Commission is inconsistent with Commission precedent.
CTD states that, in response to NYISO’s Order No. 1000 compliance filing, the
Commission found that while the New York Commission “can consult, collaborate,
inform, and even recommend a transmission project for selection,”31 any New York
27 Id. CTD points out that Commission precedent requires the Commission-
jurisdictional public utility to perform the transmission planning function. Id. at 18
(citing Preventing Undue Discrimination and Preference in Transmission Service, Order No. 890, FERC Stats. & Regs. ¶ 31,241, at PP 2-8, order on reh’g, Order No. 890-A, FERC Stats. & Regs. ¶ 31,261 (2007), order on reh’g, Order No. 890-B, 123 FERC
¶ 61,299 (2008), order on reh’g, Order No. 890-C, 126 FERC ¶ 61,228, order on
clarification, Order No. 890-D, 129 FERC ¶ 61,126 (2009)).
28 Id. at 16-17 (citing OATT, Attachment Y, § 31.4.3).
29 Id. at 17.
30 Id. at 20 (citing OATT, Attachment Y, §§ 31.4.6.3 and 31.4.6.4.).
31 Id. at 18 (citing N.Y. Indep. Sys. Operator, Inc., 143 FERC ¶ 61,059, at P 79 (2013)).
Docket No. EL16-84-000- 7 -
Commission recommendation is not a final determination, and “NYISO must be the
entity that selects the solution.”32 CTD also states that the Commission recently
found that NYISO had inappropriately delegated its responsibilities to the New York
Commission with respect to the evaluation and selection for reliability must-run
alternatives.33
11. CTD also claims that the Solicitation violates NYISO’s OATT, which according
to CTD, sets forth a sponsorship model that NYISO adopted in response to Order
No. 1000, requiring NYISO to identify generalized transmission needs and solicit project
solutions to address those needs.34 CTD asserts that NYISO’s OATT does not allow
NYISO to use a competitive bidding model, under which a regional transmission
organization (RTO) would pre-select the specific transmission solution and solicit bids
from all qualified developers. CTD also argues that the NYISO OATT definition of
Public Policy Transmission Projects supports the determination that the NYISO adopted
a sponsorship model.35 In addition, CTD argues that, consistent with the sponsorship
model, NYISO OATT section 31.4.2.1 provides that the New York Commission will
identify the transmission need, and OATT section 31.4.3 requires NYISO to solicit
Public Policy Transmission Projects to address the transmission need.36 CTD argues that,
because the Solicitation identifies the specific transmission solution, listed as Segments A
and B, with start and end points, voltage levels, right-of-ways, and circuitry that are
eligible for bid, it is not consistent with the explicit terms of OATT section 31.4.3, and
it transforms NYISO’s sponsorship model into a competitive bidding model.37
Furthermore, CTD states that even if NYISO’s OATT allows it to toggle between a
32 Id. (citing N.Y. Indep. Sys. Operator, Inc., 143 FERC ¶ 61,059 at P 40).
33 Id. (citing N.Y. Indep. Sys. Operator, Inc., 155 FERC ¶ 61,076, at P 32 (2016) and N.Y. Indep. Sys. Operator, Inc., 150 FERC ¶ 61,116, at P 40 (2015)).
34 Id. at 22-24 (citing OATT, Attachment Y, § 31.4.3).
35 Id. at 25 (citing OATT, Attachment Y, § 31.1.1, stating a Public Policy
Transmission Project is “[a] transmission project or a portfolio of transmission projects proposed by Developer(s) to satisfy an identified Public Policy Transmission Need and for which the Developer(s) seek to be selected by the ISO for purposes of allocating and recovering the project’s costs under the ISO OATT.”).
36 Id. at 23-24.
37 Id. at 26.
Docket No. EL16-84-000- 8 -
sponsorship model and a competitive bidding model, the Commission must find that NYISO, not the New York Commission, must determine the project solutions eligible for a competitive bid.38
12. CTD emphasizes that, in contrast to the New York Commission’s and NYISO’s
very specific processes to address AC Transmission Needs, NYISO adopted a different and, in CTD’s opinion, more appropriate approach for another competitive project
solicitation.39 In particular, CTD notes that the New York Commission issued a July 20, 2015 order identifying a general public policy transmission need “to alleviate congestion in Western New York,” and NYISO issued a general solicitation requesting proposed
solutions to alleviate that congestion, without identifying any specific transmission
project or solution, as it did here.40
13. CTD argues that if the Solicitation is left as issued, there is no recourse for
stakeholders to argue that NYISO did not perform its planning function correctly, or that
NYISO would have selected different projects than those the New York Commission
selected. It also argues that there is no way to verify that the studies the New York
Commission relied upon used NYISO’s modeling, generator dispatch, and other
assumptions.41 While CTD acknowledges that the NYISO OATT permits the New York
Commission to establish evaluation criteria and types of analyses that NYISO should use
in evaluating project solutions, CTD argues that the New York Commission’s
December 17 Order and the NYISO’s Solicitation did more than establish evaluation
criteria; they transformed the state’s regulatory process into a competition outside of this
Commission’s jurisdictional process for the selection of project specific technical
criteria.42
14. CTD contends that a Commission order is necessary to provide guidance to market
participants on the rules and procedures that govern NYISO’s public policy transmission
38 Id. at 26-27 (citing Order No. 1000, FERC Stats. & Regs. ¶ 31,323 at PP 99-107).
39 Id. at 9-10.
40 Id.
41 Id. at 27.
42 Id. at 28.
Docket No. EL16-84-000- 9 -
planning process.43 CTD argues that if the Commission approves this Solicitation, then
it is endorsing a two-pronged public policy transmission planning process, whereby the
New York Commission determines which project solutions are selected to meet public
policy transmission needs, and NYISO determines which developer is chosen to construct
the project.44 As a policy matter, CTD asserts that it should not be the intent of the
Commission’s Order No. 1000 nonincumbent transmission developer reforms to allow
the state regulator to conduct one aspect of the public policy transmission planning
process and the Commission-jurisdictional entity to conduct a second aspect of the
process, as that would represent an improper delegation of the Commission-jurisdictional
entity’s planning responsibilities and deprives stakeholders of recourse to the
Commission if discrepancies with the competitive process arise.45 CTD also contends
that ceding control of the transmission planning process to a state commission
disadvantages competitive transmission providers because they cannot, unlike
incumbents, recover planning costs through a rate mechanism; rather, they must rely
on external funding to compete in project solicitations.46 CTD notes the Commission’s
technical conference on issues related to competitive transmission development
processes,47 applauds that effort, and asserts that NYISO’s actions here are an example
of the difficulties nonincumbent transmission developers have in promoting viable, cost-
effective projects.48
15. CTD requests that, regardless of the Commission’s determination in this
proceeding, the Commission clarify that, when analyzing the proposed project solutions,
NYISO must utilize its normal study process, including base assumptions and generator
dispatch modeling, and not rely on studies the New York Commission commissioned that
reflect different assumptions in modeling.49 CTD states that CTD member, Boundless
43 Id. at 29.
44 Id.
45 Id. at 30.
46 Id.; Attachment A, Tompkins Affidavit at P 4.
47 Id. (citing Competitive Transmission Development Technical Conference, Docket No. AD16-18-000 (May 16, 2016)).
48 Id. at 30.
49 Id. at 31.
Docket No. EL16-84-000- 10 -
Energy, is concerned that NYISO intends to adopt the modeling and assumptions the New York Commission relied upon in determining the New York Commission’s preferred project solutions. CTD argues that NYISO’s adoption of the New York Commission’s modeling and assumptions would violate the OATT, which requires NYISO to independently review the proposed project solutions.50
III.Notice of Complaint and Responsive Pleadings
16.Notice of CTD’s complaint was published in the Federal Register, 81 Fed.
Reg. 39,637 (2016), with answers, interventions, and protests due on or before June 30, 2016. Timely motions to intervene were filed by North America Transmission, LLC (North American Transmission),51 ITC New York Development LLC, TDI USA
Holdings Corporation, Avangrid Networks, NRG Power Marketing LLC and GenOn Energy Management, LLC, NextEra Energy Transmission New York, Inc., New York Transmission Owners,52 and New York Transco, LLC (NY Transco). The New York Commission filed a notice of intervention.
17.NYISO submitted a timely answer. The New York Commission and North
American Transmission submitted timely comments. Boundless Energy submitted an
answer to NYISO’s answer and North American Transmission’s comments, and North
America Transmission filed an answer to Boundless Energy’s answer.
A.NYISO’s Answer
18.NYISO asserts that it has acted consistent with its OATT, and the Commission
should dismiss the complaint. NYISO explains that under its OATT, the New York
Commission ultimately determines the public policy transmission needs for which
50 Id. at 31 & n.70 (citing OATT, Attachment Y, § 31.4.1.).
51 North America Transmission, an affiliate of LSP Transmission Holdings, LLC, states that it responded to NYISO’s Solicitation.
52 New York Transmission Owners include Central Hudson Gas & Electric
Corporation, Consolidated Edison Company of New York, Inc., Power Supply Long
Island, New York Power Authority, New York State Electric & Gas Corporation, Niagara Mohawk Power Corporation d/b/a National Grid, Orange and Rockland Utilities, Inc., and Rochester Gas and Electric Corporation.
Docket No. EL16-84-000- 11 -
NYISO will evaluate solutions,53 and the New York Commission may prescribe various
evaluation criteria and types of analyses that the NYISO must consider in its evaluation
of proposed solutions.54 NYISO states that it structured its Solicitation pursuant to its
public policy transmission planning process, which requires NYISO to: (1) solicit
solutions for the public policy transmission need the New York Commission identified;
(2) use the criteria the New York Commission identified in evaluating whether
proposed solutions are sufficient to meet the need; and (3) apply the types of analyses
the New York Commission identified as part of NYISO’s selection of the more efficient
or cost-effective transmission solution.55 NYISO argues that the New York Commission
appropriately considered siting and other public policy concerns in its AC Transmission
Needs proceeding, and it identified a public policy transmission need consistent with its
role in NYISO’s public policy transmission planning process. NYISO also argues that it
would be unreasonable for the New York Commission to ignore the knowledge that it
gained from the AC Transmission Needs proceeding, and to adopt a public policy
transmission need that could lead NYISO to select a transmission solution with significant or insurmountable obstacles to siting.56
19. NYISO asserts that the New York Commission has not selected a particular
project or usurped the NYISO’s transmission planning functions. NYISO states that,
as required by its OATT, NYISO’s Solicitation broadly solicited Public Policy
Transmission Projects and Other Public Policy Projects to address the public policy
53 NYISO Answer at 10 & n.22 (citing OATT, Attachment Y, § 31.4.2.1, which states that the New York Commission, with input from NYISO and interested parties, will “identify the transmission needs, if any, for which specific transmission solutions should be requested and evaluated….”).
54 Id. at 10 & n.24 (citing OATT, Attachment Y, § 31.4.2.1, stating the New York Commission “may also provide: (i) additional criteria for the evaluation of transmission solutions and non-transmission projects…and (iii) the type of analyses that it will request from the [NYISO]”); see also, id. at 12 n.36 (citing OATT, Attachment Y, § 31.4.8.1.8, which states that NYISO “shall apply any criteria specified by the Public Policy
Requirement or provided by the [New York Commission] and perform the analyses
requested by the [New York Commission], to the extent that compliance with such
criteria and analyses are feasible”).
55 Id. at 12.
56 Id. at 14.
Docket No. EL16-84-000- 12 -
transmission need that the New York Commission identified.57 NYISO points out that
it received 15 Public Policy Transmission Projects and one Other Public Policy Project
(which was a portfolio of distributed generation) from six incumbent and nonincumbent
developers in response to its Solicitation.58 NYISO states that the proposed solutions
include single and double circuit proposals, as well as numerous variations of system
configuration, including reconfiguration of existing facilities.59 NYISO contends that
this broad and varied response to the Solicitation rebuts CTD’s assertion that the New
York Commission selected a particular project and interfered with NYISO’s planning
function.
20. NYISO further argues that the New York Commission’s Segments A and B
descriptions provide a general framework for the transmission projects to meet the AC
Transmission Needs, but do not specify exact physical or electric designs.60 NYISO’s
affidavit from Zachary Smith, Director of Transmission Planning, states that there are
numerous potential physical designs, such as alternative transmission structure
configurations, that would meet the AC Transmission Needs and provide varying levels
of expandability.61 Mr. Smith states that there are also numerous potential electrical
designs that would provide varying levels of operability and performance, such as more
efficient conductors, controllable devices, and series compensation.62
57 Id. at 11 & n.30 (citing OATT, Attachment Y, § 31.4.3). A Public Policy
Transmission Project is defined as “[a] transmission project or a portfolio of transmission
projects proposed by Developer(s) to satisfy an identified Public Policy Transmission
Need and for which the Developer(s) seek to be selected by the ISO for purposes of
allocating and recovering the project’s costs under the ISO OATT.” OATT, Attachment
Y, § 31.1.1. An Other Public Policy Project is defined as “[a] non-transmission project or
a portfolio of transmission and non-transmission projects proposed by a Developer to
satisfy an identified Public Policy Transmission Need.” OATT, Attachment Y, § 31.1.1.
58 NYISO Answer at 15; Attachment II, Smith Affidavit at P 15.
59 Id. at 16; Attachment II, Smith Affidavit at P 15.
60 Id. at 14-15.
61 Id. at 15; Attachment II, Smith Affidavit at P 12.
62 Id.
Docket No. EL16-84-000- 13 -
21. Regardless of the analysis that the New York Commission performed regarding
potential transmission solutions in its AC Transmission Needs proceeding, NYISO states
that, consistent with its OATT requirements, it is now conducting a separate and
independent evaluation of the viability and sufficiency of the proposed solutions
submitted in response to the Solicitation to determine their ability to satisfy AC
Transmission Needs.63 NYISO states that it will then independently evaluate the viable
and sufficient transmission solutions, and select the more efficient or cost-effective
Public Policy Transmission Project using all of the cost and non-cost metrics included in
OATT section 31.4.8.1.64 To perform its evaluation, NYISO states that it will not use the
New York Commission’s studies, but rather its own base cases, modeling, and studies
that it has independently developed in accordance with OATT section 31.4 and the
NYISO Public Policy Transmission Planning Process Manual.65
22. In addition, NYISO states that CTD’s actual dispute is with the New York
Commission’s determination of public policy transmission needs, which Boundless
Energy has challenged in two pending state court proceedings in New York.66 NYISO
notes that pursuant to OATT section 31.4.2.2, a dispute “raised solely within the
[New York Commission’s] jurisdiction relating to any [New York Commission]
decision to either accept or deny a proposed transmission need…shall be addressed
through judicial review in the courts of the State of New York pursuant to Article 78 of
the New York Civil Practice Law and Rules.”67 NYISO requests that the Commission
reject CTD’s attempt to duplicate its state court challenges to the New York
Commission’s order through a section 206 complaint against NYISO.
63 NYISO Answer at 16; Attachment II, Smith Affidavit at P 17.
64 Id.
65 NYISO Answer at 17; Attachment II, Smith Affidavit at P 18.
66 NYISO Answer at 8 (citing Matter of Boundless Energy NE, LLC v. Public
Service Commission of the State of New York, et al., New York State Supreme Court,
Albany County, Index No. 1200-16 (commenced Mar. 21, 2016); and Matter of
Boundless Energy NE, LLC v. Public Service Commission of the State of New York, et al., New York State Supreme Court, Appellative Division, Third Department, Index
No. 522738 (commenced Mar. 21, 2016)).
67 NYISO Answer at 8.
Docket No. EL16-84-000- 14 -
B.Comments
23.The New York Commission argues that the Commission should dismiss the
complaint. It asserts that the public policy transmission planning process provides a
role for the New York Commission to identify public policy transmission needs, and it
specifies that the New York Commission may provide evaluation criteria to NYISO
that NYISO will apply when it is evaluating the solutions. The New York Commission
states that its evaluation criteria were established after a lengthy and comprehensive
process, with ample opportunity for stakeholder input, and this process resulted in the
identification of specific transmission needs and environmental factors directly related to
the New York Commission’s required statutory findings to site transmission facilities.68
The New York Commission argues that CTD was allowed to participate in each step of
NYISO’s public policy transmission planning process, and CTD should not be allowed to
circumvent that process to achieve an outcome desirable for their preferred projects(s) at
the expense of the State’s public policy needs. The New York Commission also states
that, under the OATT, NYISO retains independent and ultimate authority to select an
appropriate transmission project, if any, for purposes of regional cost allocation and
recovery.69
24. The New York Commission asserts that in considering the public policy
transmission needs and evaluation criteria, the Commission should recognize that
NYISO’s public policy transmission planning process affects matters of concurrent
federal and state jurisdiction. According to the New York Commission, the Commission
establishes rates for wholesale transmission and the New York Commission has
jurisdiction over the siting of transmission lines. The New York Commission states that,
consistent with its jurisdiction, it undertook a comprehensive siting and planning process
to address the public policy transmission needs. The New York Commission also states
that its identification of the AC Transmission Needs as public policy transmission needs
was informed by an extensive record, and its environmental and siting concerns were
reflected in its evaluation criteria for NYISO.70 The New York Commission states that if
the terms of NYISO’s process are reinterpreted so that NYISO may ignore the New York
68 New York Commission Comments at 2-3.
69 Id. at 4, 6.
70 Id. at 7-8.
Docket No. EL16-84-000- 15 -
Commission’s evaluation criteria, the project that NYISO chooses may be unable to obtain the New York Commission’s siting approval.71
25. North American Transmission argues that the complaint is based on the flawed
claim that the NYISO Solicitation was too narrowly defined to comply with the NYISO
OATT. North American Transmission asserts that this claim is not supported by the
Solicitation, given the various proposals that NYISO has received in response to the
Solicitation, including at least one non-transmission proposal, two direct current
proposals, and several other alternative proposals.72 North American Transmission also
states that it submitted multiple alternative proposals for both segments, and other
developers also submitted multiple alternatives.73 It also contends that CTD’s request to
delay and rebid the Solicitation would prejudice North American Transmission and other
bidders in the Solicitation.
26. North American Transmission states that, to date, NYISO has not rejected any
project type, or refused to evaluate any project, whether it meets the New York
Commission’s parameters or not. North American Transmission therefore argues that
CTD’s assertion that NYISO has violated its OATT is premature. North American
Transmission asserts that if NYISO’s Solicitation evaluation report ultimately reflects
that NYISO summarily rejected, without evaluation, alternative proposals, the parties
submitting those proposals may have a cause of action for NYISO’s violation of its
OATT.74 North American Transmission also asserts that it is unclear whether Boundless
Energy, who did not participate in the Solicitation, and CityGreen Transmission, Inc. and
Miller Bros. who are “not qualified transmission developers in NYISO’s public policy
transmission planning process,” would have standing to assert an OATT violation in
NYISO’s evaluation of other proposals. It asserts, however, that the Commission does
not need to address that standing issue at this time since no such OATT violation has
occurred.75
71 Id. at 8.
72 North American Transmission Comments at 4.
73 Id.
74 Id. at 7.
75 Id.
Docket No. EL16-84-000- 16 -
C.Boundless Energy’s and North American Transmission’s Answers
27.Boundless Energy asserts that the Commission has exclusive jurisdiction to
interpret and enforce NYISO’s OATT requirements, and therefore the complaint
is properly before the Commission. Boundless Energy also asserts that NYISO
mischaracterizes the complaint as an attempt to duplicate the relief Boundless Energy
seeks in its state court actions filed on appeal of the New York Commission’s
December 17 Order.76 Boundless Energy explains that the complaint asks the
Commission to interpret and enforce the NYISO OATT, and to not allow NYISO to
abdicate key aspects of its transmission planning function role to the New York
Commission.
28. Boundless Energy argues that the Solicitation goes well beyond the mere inclusion
of “evaluation criteria” and includes specific project solutions to meet the public
policy transmission needs. Boundless Energy states that NYISO’s and the New York
Commission’s responses to its complaint raise the question of whether the Commission
expects independent system operators (ISO) and RTOs to perform an independent,
transparent and competitive transmission development process, as required by Order
No. 1000 and the OATT, or whether ISOs and RTOs must be beholden to state regulators
who use “evaluation criteria,” or other such terms, in their effort to control the
transmission planning process.
29. Boundless Energy disagrees with North American Transmission’s comment that the complaint is premature, as well as its assertion that Boundless Energy should have to submit a non-conforming proposal to NYISO and have NYISO reject that proposal before it can seek relief from the Commission. Boundless Energy states that the OATT violation occurred with the Solicitation, and there is no requirement under section 206 of the FPA to wait a period of time after a public utility violates its tariff. Boundless Energy also points out that it and North American Transmission appear to share views in
opposing NYISO’s position that NYISO is bound to accept the project solutions the
New York Commission identified by the New York Commission.
30. North American Transmission responds that Boundless Energy mischaracterizes
its comments by asserting that North American Transmission’s position is that Boundless
Energy’s only recourse in response to the Solicitation was to submit a non-conforming
bid.77 North American Transmission states that its argument is that the complaint is
76 Id. at 4 (citing NYISO Answer at 9).
77 North American Transmission Answer at 2 (citing Boundless Energy Answer
at 2).
Docket No. EL16-84-000- 17 -
premature because NYISO has not refused to evaluate proposals, or rejected any project
type under its OATT. North American Transmission maintains however that Boundless
Energy should have modified its bid to meet the public policy transmission need, like
North American Transmission did. Also, contrary to Boundless Energy’s claims that it
and Boundless Energy share views about NYISO’s obligations to the New York
Commission, North American Transmission states that it did not conclude that NYISO
ceded any authority to the New York Commission, or that the public policy transmission
need was too narrowly defined.78 North American Transmission also takes issue with
Boundless Energy’s characterization that it is undisputed that the New York Commission
itself “identified the portfolio of projects that would meet the [Public Policy Transmission
Needs].”79 North American Transmission states that no other party shares this view, and
North American Transmission does not believe that the New York Commission identified
the portfolio of projects to meet the need; the New York Commission only identified the
evaluation criteria to be used in the Solicitation.
IV. Discussion
A.Procedural Matters
31.Pursuant to Rule 214 of the Commission’s Rules of Practice and Procedure,
18 C.F.R. § 385.214 (2015), the notice of intervention and timely, unopposed motions
to intervene serve to make the entities that filed them parties to this proceeding.80
78 Id. at 4 (citing Boundless Energy Answer at 10).
79 Id. at 4 (citing Boundless Energy Answer at 7-8 (citing the New York
Commission’s May 16, 2016 Memorandum of Law in Support of the Verified Answer
at 20)).
80 North American Transmission asserts that CTD did not properly caption its
complaint, because it used Competitive Transmission Developers in the caption and
Competitive Transmission Developers is not a formally established entity. North
American Transmission Comments at 1 n.1. We note that the Commission’s regulation
concerning captions, 18 C.F.R. §385.2002(e) (2015), states that the caption must include
“[t]he name of the participant for whom the filing is made, or a shortened designation for
the participant.” Therefore, we find that it was not procedurally improper for CTD to use
the shortened designation of Competitive Transmission Developers in the caption of its
complaint. In addition, under the Commission’s regulations, any person may file a
complaint. Id. §385.206 (a). A “person” is broadly defined as “an individual . . . an
organized group of persons, whether incorporated or not . . .” Id. §385.102(d).
Docket No. EL16-84-000- 18 -
32. Rule 213(a)(2) of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.213(a)(2) (2015), prohibits an answer to an answer unless otherwise ordered by the decisional authority. We will accept Boundless Energy’s and North American
Transmission’s answers because they have provided information that assisted us in our decision-making process.
B.Substantive Matters
33.Based on the record in this case, we find that CTD has failed to demonstrate that
NYISO violated its OATT in its Solicitation to address public policy transmission needs
identified by the New York Commission or that NYISO’s public policy transmission
planning process is inconsistent with Order No. 1000. Accordingly, we deny CTD’s
complaint.
34. Order No. 1000 requires each public utility transmission provider’s OATT to
include procedures to consider transmission needs driven by public policy requirements
in the local and regional transmission planning processes.81 It defines public policy
requirements as requirements established by local, state or federal laws or regulations
(i.e., enacted statutes 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).82 Order No. 1000 permits public utility transmission providers, in
consultation with stakeholders, to develop procedures that rely on a committee of load-
serving entities, a committee of state regulators, or a stakeholder group to identify the
transmission needs driven by public policy requirements for which transmission solutions
will be evaluated.83 Order No. 1000 also requires public utility transmission providers to
evaluate potential solutions, including those proposed by stakeholders, to those identified
transmission needs.84
35. As required under Order No. 1000, NYISO developed a public policy transmission
planning process, which included the following three steps at issue in the complaint.
First, NYISO and its stakeholders identify transmission needs driven by public policy
requirements (i.e., public policy transmission needs) and submit those needs to the
81 Order No. 1000, FERC Stats. & Regs. ¶ 31,323 at P 203.
82 Id. P 2 & n.155.
83 Id. P 209.
84 Id. P 211.
Docket No. EL16-84-000- 19 -
New York Commission. The New York Commission then determines the public policy
transmission needs for which NYISO will evaluate solutions, and may also provide
NYISO with additional evaluation criteria and types of analyses for NYISO to use in
NYISO’s evaluation of solutions.85 Second, NYISO issues a solicitation requesting
proposed transmission and non-transmission solutions to address the public policy
transmission needs that the New York Commission identified.86 Finally, NYISO
evaluates the proposed solutions, and selects the more efficient or cost-effective
transmission solution, if any, in the regional transmission plan for purposes of regional
cost allocation.87
36. Consistent with the Commission’s order accepting NYISO’s Order No. 1000
compliance filing,88 NYISO’s OATT permitted NYISO, in consultation with
stakeholders, to rely on the New York Commission, with input from NYISO and
interested parties, to identify the public policy transmission needs,89 and the New York
Commission identified the public policy transmission needs here. As required under
the first step of NYISO’s public policy transmission planning process, NYISO, in 2014,
requested interested parties to submit proposed transmission needs driven by public
policy requirements. NYISO received proposed transmission needs from eight entities
and provided them to the New York Commission. Subsequently, the New York
Commission expanded its ongoing 2012 proceeding, which was addressing insufficient
transmission capacity between upstate generation and downstate consumers on New
York’s AC transmission system, to identify public policy transmission needs.90 After
evaluating revised developer proposals to improve this transmission capacity, and after
85 OATT, Attachment Y, § 31.4.2.1.
86 Id. § 31.4.3.
87 Id. § 31.4.8.2.
88 New York Independent System Operator, Inc., 143 FERC ¶ 61,059 at P 142.
89 OATT, Attachment Y, § 31.4.2.1.
90 The New York Commission states that “[b]ecause the [New York Commission] undertook a comprehensive siting/planning process before the NYISO OATT
incorporated [NYISO’s Order No. 1000 public policy transmission planning process],
the [New York Commission’s] identification of Public Policy Transmission Needs was informed by the extensive record before the [New York Commission ]. New York
Commission Comments at 7.
Docket No. EL16-84-000- 20 -
conducting hearings and additional analysis, in consultation with NYISO, the New York
Commission identified Segments A and B as the public policy transmission need.91
Based on the record of this case, we find nothing to indicate that NYISO’s and the
New York Commission’s identification of the public policy transmission need is
inconsistent with the NYISO OATT definition of a Public Policy Transmission Need.92
37. We also find that NYISO conducted the Solicitation in accordance with its OATT.
The OATT requires NYISO to solicit proposals for Public Policy Transmission Projects
and Other Public Policy Projects to satisfy a public policy transmission need.93 NYISO’s
Solicitation stated that it “solicits Public Policy Transmission Projects and Other Public
Policy Projects to address AC Transmission Public Policy Transmission Needs….”94 In
addition to the specific evaluation metrics, under OATT section 31.4.8.1,95 that NYISO
will consider when it is evaluating transmission solutions, OATT section 31.4.2.1 gives
the New York Commission discretion to establish additional evaluation criteria and types
of analyses that NYISO will apply when evaluating transmission solutions.96 The
91 Complaint, Attachment D at 1.
92 OATT section 31.1.1 states that a Public Policy Transmission Need is “[a] need identified by the [New York Commission] that is driven by a Public Policy
Requirement….” OATT, Attachment Y, § 31.1.1.
93 OATT, Attachment Y, § 31.4.3. For the definition of a Public Policy
Transmission Project, see supra note 35. An Other Public Policy Project is defined as
“[a] non-transmission project or a portfolio of transmission and non-transmission projects proposed by a Developer to satisfy an identified Public Policy Transmission Need.”
OATT, Attachment Y, § 31.1.1.
94 Complaint, Attachment D at 1, 2.
95 OATT, Attachment Y, § 31.4.8.1.
96 OATT, Attachment Y, § 31.4.2.1 (stating the New York Commission “may also provide: (i) additional criteria for the evaluation of transmission solutions and
non-transmission projects…and (iii) the type of analyses that it will request from the [NYISO]”); see also, OATT, Attachment Y, § 31.4.8.1.8 (stating NYISO “shall apply any criteria specified by the Public Policy Requirement or provided by the [New York Commission] and perform the analyses requested by the [New York Commission], to the extent that compliance with such criteria and analyses are feasible.”).
Docket No. EL16-84-000- 21 -
New York Commission’s identification of evaluation criteria and types of analyses97 was
consistent with OATT section 31.4.2.1, and NYISO appropriately included them in the
Solicitation.98 Consistent with OATT sections 31.4.2.1 and 31.4.8.1, NYISO states that it
must apply the specific evaluation metrics detailed in OATT section 31.4.8.1, as well as
the additional evaluation criteria that the New York Commission specified under OATT
sections 31.4.2.1, as NYISO evaluates transmission solutions in response to the
Solicitation.99
38. Additionally, we disagree with CTD that the New York Commission’s identified
public policy need transformed NYISO’s sponsorship model into a competitive bidding
model. The New York Commission did not select a specific project, and did not require
NYISO to conduct only a bid-based solicitation for a specific project.100 The record
reflects the potential for competing solutions, and it shows that competing solutions were
actually proposed in response to the Solicitation. NYISO’s affidavit from Mr. Smith
states that there are numerous potential physical designs, such as alternative transmission
structure configurations, that would meet the transmission needs and provide varying
levels of expandability.101 Mr. Smith also states that there are also numerous potential
electrical designs that would provide varying levels of operability and performance, such
as more efficient conductors, controllable devices, and series compensation.102 NYISO
states that it received 15 Public Policy Transmission Projects and one Other Public Policy
Project (which was a portfolio of distributed generation) from six incumbent and
97 Complaint, Attachment D at Attachment II.
98 Because we find that NYISO acted consistent with its OATT, we disagree
with CTD’s contention that NYISO inappropriately delegated its responsibilities to the New York Commission, and we find no similarity here with our recent case in which we found that NYISO inappropriately delegated its responsibilities to the New York
Commission with respect to the evaluation and selection of reliability must-run
alternatives. N.Y. Indep. Sys. Operator, Inc., 155 FERC ¶ 61,076 at P 32.
99 NYISO Answer at 11-12.
100 The OATT requires NYISO to conduct a solution-based solicitation, based on the sponsorship model. OATT, Attachment Y, § 31.4.3.
101 NYISO Answer at 15; Attachment II, Smith Affidavit at P 12.
102 Id.
Docket No. EL16-84-000- 22 -
nonincumbent developers in response to its Solicitation.103 NYISO also states that the
proposed solutions included single and double circuit proposals, as well as numerous
variations of system configuration, including reconfiguration of existing facilities.104
North American Transmission states that NYISO’s Solicitation responses include at least
one non-transmission proposal, two direct current proposals, and several other alternative
proposals.105 North American Transmission also states that it submitted multiple
alternative proposals for both segments, and other developers also submitted multiple
alternatives.106 Furthermore, because the record reflects the potential for competing
solutions, and it shows that competing solutions were actually proposed in response to
the Solicitation, we also disagree with CTD’s contention that if the Commission approves
this Solicitation, then it is endorsing a two-pronged competitive process, including a
competition before the New York Commission to determine which project solutions are
selected to meet public policy transmission needs, and a competition issued by NYISO to
determine which developer is chosen to construct the project. We find that the New York
Commission did not select a specific project in its process to identify the public policy
transmission need, and therefore NYISO appropriately conducted a solution-based
solicitation, based on the sponsorship model, consistent with its OATT.
39. In response to CTD’s concern that NYISO will not conduct an independent
evaluation of transmission solutions using its own assumptions and models, we note that
NYISO states that, consistent with its obligations under the OATT, it is conducting a
separate and independent evaluation of the viability and sufficiency of the proposed
solutions submitted in response to the Solicitation.107 NYISO also states that it will then
independently evaluate the viable and sufficient transmission solutions, and select the
more efficient or cost-effective solution.108 In addition, NYISO states that, to perform its
evaluation, it will not use the New York Commission’s studies, but rather its own base
cases, modeling, and studies that it has independently developed in accordance with
OATT section 31.4 and the NYISO Public Policy Transmission Planning Process
103 NYISO Answer at 15; Attachment II, Smith Affidavit at P 15.
104 Id. at 16; Attachment II, Smith Affidavit at P 15.
105 North American Transmission Comments at 4.
106 Id. at 4.
107 NYISO Answer at 16; Attachment II, Smith Affidavit at P 17.
108 Id.
Docket No. EL16-84-000- 23 -
Manual.109 Therefore, we find that NYISO is following the requirements of its OATT in identifying solutions in response to the Solicitation.110
40. Finally, the Commission emphasizes that NYISO should be careful to ensure that its public policy transmission planning process remains consistent with Order No. 1000. It appears that the structure of the Solicitation arose from unique circumstances related
to the AC Transmission Needs proceeding that was initiated prior to the effectiveness
of the NYISO Order No. 1000 transmission planning process. In contrast, in a prior
competitive solicitation, NYISO issued a more general competitive solicitation to address transmission needs to alleviate congestion in Western New York. While we find that the complainants have not shown that NYISO violated its tariff here, we encourage NYISO to conduct its public policy transmission planning process in a manner that promotes
competition, consistent with Order No. 1000.
The Commission orders:
The complaint is hereby denied, as discussed in the body of this order. By the Commission.
( S E A L )
Nathaniel J. Davis, Sr.,
Deputy Secretary.
109 NYISO Answer at 17; Attachment II, Smith Affidavit at P 18.
110 North American Transmission generally asserts, without supporting argument,
that Boundless Energy, who did not participate in the Solicitation, and CityGreen
Transmission, Inc. and Miller Bros. who are “not qualified transmission developers in
NYISO’s public policy transmission planning process,” may not have standing to file a
complaint asserting an OATT violation in NYISO’s evaluation of other proposals. In this
regard, we note that neither the Commission’s statute nor its regulation require such
participation or qualification as a predicate to filing a complaint. 16 U.S.C. § 825e
(2012); 18 C.F.R. § 385.206 (2015).