UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
New York Independent System Operator, Inc.)Docket Nos. ER15-2059-000
ER15-2059-001
REQUEST FOR REHEARING OF
NEW YORK INDEPENDENT SYSTEM OPERATOR, INC.
Pursuant to Section 313(a) of the Federal Power Act1 and Rules 713 and 20072 of the Commission’s Rules of Practice and Procedure,3 the New York Independent System Operator, Inc. (“NYISO”) requests rehearing of the Commission’s December 23, 2015, Order Rejecting Tariff Revisions in the above-captioned proceeding (“December Order”).4
The December Order’s rejection of all of the tariff revisions that the NYISO proposed in
this proceeding does not constitute reasoned decision-making. The Commission summarily
rejected all of the proposed revisions because it determined that a small portion of them (referred
to herein as the “Interconnection Provisions”) unduly discriminated between incumbent and non-
incumbent developers by referring to the NYISO’s existing separate processes for
interconnection and transmission expansion. That determination is wholly inapplicable to the
NYISO’s numerous other proposed tariff clarifications, referred to herein as the “Non-
Interconnection Provisions.” These clarifications are entirely unrelated to the Interconnection
Provisions, do not refer to the existing tariff provisions that formed the stated basis of the
1 16 U.S.C. § 8251(a).
2 This filing was originally due on January 22, 2016, the 30th day following the Commission’s December 23, 2015 Order. The filing deadline was automatically extended by operation of Rule
2007(a)(2) because adverse weather conditions in the Washington, D.C. region resulted in the
Commission closing early on January 22 and not reopening until today.
3 18 C.F.R. § 385.713.
4 New York Independent System Operator, Inc., Order Rejecting Tariff Revisions, 153 FERC ¶ 61,340 (2015) (“December Order”).
Commission’s concern, and do not themselves create any potential for undue discrimination
between incumbent and non-incumbent developers. Therefore, the Commission failed to engage
in reasoned decision-making when it rejected the extensive Non-Interconnection Provisions
spanning numerous tariff sections that were developed through months of stakeholder
discussions and that enjoyed consensus stakeholder support. The Commission compounded its
error by neglecting to provide any kind of reasoned explanation for its determination.
Accordingly, the Commission should grant rehearing and accept the proposed Non-
Interconnection Provisions.5
I.COMMUNICATIONS
Communications and correspondence regarding this pleading should be directed to:
Robert E. Fernandez, General Counsel
Raymond Stalter, Director of Regulatory Affairs
*Carl F. Patka, Assistant General Counsel
New York Independent System Operator, Inc.
10 Krey Boulevard
Rensselaer, NY 12144
Tel: (518) 356-6000
Fax: (518) 356-4702
rfernandez@nyiso.com
rstalter@nyiso.com
cpatka@nyiso.com
*Ted J. Murphy
Hunton & Williams LLP 2200 Pennsylvania Ave, NW Washington, DC 20037
Tel: (202) 955-1500
Fax: (202) 778-2201
tmurphy@hunton.com
*Michael Messonnier6
Hunton & Williams LLP
Riverfront Plaza, East Tower 951 East Byrd Street
Richmond, VA 23219
Tel: (804) 788-8712
Fax: (804) 343-4646
mmessonnier@hunton.com
5 The NYISO is not seeking rehearing with respect to the Interconnection Provisions, which it
will address in a further compliance filing on March 22, 2016. See New York Independent System
Operator, Inc., 153 FERC ¶ 61,341 (2015) (establishing compliance filing obligation); Notice of
Extension of Time, Docket No. ER13-102-007 (January 14, 2016) (establishing March 22 filing deadline).
6 Waiver of the Commission’s regulations (18 C.F.R. § 385.203(b)(3) (2014)) is requested to the
extent necessary to permit service on counsel for the NYISO in both Richmond, VA and Washington,
DC.
2
* -- Persons designated for service.
II. SPECIFICATION OF ERRORS/STATEMENT OF ISSUES
In accordance with Rule 713(c),7 the NYISO submits the following specifications of error
and statement of the issues on which it seeks rehearing of the December Order:
The Commission failed to engage in reasoned decision making and acted unlawfully by
rejecting the Non-Interconnection Provisions based on wholly inapplicable and irrelevant concerns about undue discrimination, and without providing any reasoned explanation for that rejection.8
III.BACKGROUND
On June 29, 2015, the NYISO filed proposed revisions to the Public Policy Transmission
Planning Process (“Public Policy Process”) portion of its Comprehensive System Planning
Process.9 The June 29 Filing10 included a wide variety of proposed tariff revisions that clarified
or revised the existing Public Policy Process tariff requirements. These changes need to be in
place for the NYISO to fully implement its Public Policy Process in the current planning cycle.
The NYISO developed the proposed revisions through months of stakeholder discussions,
7 18 C.F.R. § 385.713(c).
8 See, e.g., Motor Vehicle Mfr. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 at 43 (1983);
National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 at 839 (D.C. Cir. 2006); NorAM Gas
Transmission Co. v. FERC, 148 F.3d 1158, 1165 (D.C. Cir. 1998); citing K N Energy, Inc. v. FERC, 968
F.2d 1295, 1303 (D.C. Cir. 1992); PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198 (D.C.
Cir. 2005).
9 Capitalized terms that are not otherwise defined herein shall have the meaning specified in
Attachment Y of the NYISO OATT, and if not defined therein, in the body of the NYISO OATT and the NYISO Market Administration and Control Area Services Tariff.
10 New York Independent System Operator, Inc., Proposed Tariff Revisions Regarding Public
Policy Transmission Planning Process, Docket No. ER15-2059-000 (June 29, 2015) (“June 29 Filing”).
See also New York Independent System Operator, Inc., Response to Deficiency Letter; Request for a
Revised Effective Date; and Resubmission of Proposed Tariff Revisions, Docket No. ER15-2059-000
(October 27, 2015).
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stakeholders approved them without objection, and no party opposed them before the Commission.
Specifically, the June 29 Filing included various Non-Interconnection Provisions that
addressed a broad range of matters within the Public Policy Process. Issues addressed included cost allocation and recovery, post-selection requirements, the impact of disputes on the Public Policy Process, the scope of the base case used to study proposed solutions to a Public Policy Transmission Need, confidentiality, information submission requirements, the time frame for satisfying Public Policy Transmission Needs, tariff flexibility in addressing minor process
delays, and numerous other points.
The December Order rejected the June 29 Filing in its entirety. It did so solely because the Commission was concerned that certain Interconnection Provisions would “subject
nonincumbent transmission developers to an interconnection process with different requirements than the interconnection process that applies to incumbent Transmission Owners.”11 The
Commission stated that this different interconnection treatment was unduly discriminatory.12
The December Order did not address the numerous other proposed Non-Interconnection Provisions referenced above that were unrelated to the Interconnection Provisions. It simply declared that the Commission was rejecting the entire June 29 Filing because the Interconnection Provisions were ostensibly “fundamental” to it.13
11 December Order at P 12.
12 See id.
13 See December Order at n. 19 (“Because we reject this fundamental aspect of NYISO’s filing we also find it appropriate to reject NYISO’s filing in its entirety.”).
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IV.REQUEST FOR REHEARING
The Commission failed to engage in reasoned decision-making when it rejected the full
set of proposed tariff revisions based on a rationale that could apply to only a subset of those
revisions. The Administrative Procedure Act14 requires federal agencies, including the
Commission, to engage in “reasoned decision-making” and provide a reasonable explanation for
their decisions. Commission decisions are remanded, or vacated, on appeal if they fail to satisfy
this standard. Specifically, courts have held the Commission must "examine the relevant data
and articulate a satisfactory explanation for its action including a rational connection between the
facts found and the choice made."15 A determination does not constitute reasoned decision-
making if an agency has “offered an explanation for its decision that runs counter to the evidence
before the agency.”16 The Commission must engage arguments raised before it.17 A decision
that does not even address the arguments before it “can hardly be classified as reasoned.”18
The extent of the December Order’s “explanation” for its rejection of Non-
Interconnection Provisions is in a footnote which states that the Interconnection Provisions were
so “fundamental” that they somehow invalidated the entire June 29 Filing. The Commission did
not engage in reasoned decision-making when it rejected numerous tariff revisions that were
developed through months of stakeholder discussions and that enjoyed consensus support, based
14 5 U.S.C. §§ 551 et seq.
15 Motor Vehicle Mfr. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks and citations omitted).
16 See National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 at 839 (D.C. Cir. 2006) (remanding decision to Commission).
17 NorAm Gas Transmission Co. v. FERC, 148 F.3d 1158, 1165 (D.C. Cir. 1998) ("[i]t most
emphatically remains the duty of this court to ensure that an agency engage the arguments raised before
it--that it conduct a process of reasoned decision making" (remanding decision to Commission); citing KN Energy, Inc. v. FERC, 968 F.2d 1295, 1303 (D.C. Cir. 1992) (same).
18 PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198 (D.C. Cir. 2005) (remanding decision to Commission).
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on this wholly unsupported and incorrect assertion. The Non-Interconnection Provisions provide for comparable treatment of incumbent and non-incumbent Developers and raise no concerns regarding undue discrimination. The Interconnection Provisions and the Non-Interconnection Provisions are not linked such that the rejection of the former dictated the rejection of the latter.
The NYISO is developing a new tariff filing to re-submit the Non-Interconnection
Provisions without including the Interconnection Provisions.
The NYISO will separately address the Interconnection Provisions in its further
compliance filing on March 22, 2016.19 In short, the Commission should issue an order on rehearing that accepts the proposed Non-Interconnection Provisions.
V.CONCLUSION
WHEREFORE, for the foregoing reasons, the New York Independent System Operator, Inc., respectfully requests that the Commission grant rehearing of the December Order.
Respectfully submitted,
/s/ Ted J. Murphy
Ted J. Murphy
Counsel to the NYISO
January 27, 2016
cc:Michael BardeeJ. Arnold Quinn
Anna CochraneDouglas Roe
Kurt LongoKathleen Schnorf
Max MinznerJamie Simler
Daniel NowakGary Will
Larry Parkinson
19 See supra n. 5.
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CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing document upon each person
designated on the official service list compiled by the Secretary in this proceeding in accordance
with the requirements of Rule 2010 of the Rules of Practice and Procedure, 18 C.F.R. §
385.2010.
Dated at Rensselaer, NY this 27th day of January 2016.
By:/s/ John C. Cutting
John C. Cutting
New York Independent System Operator, Inc.
10 Krey Blvd.
Rensselaer, NY 12144 (518) 356-7521
