On October 23, 2015, FERC issued an order denying a complaint brought by Merricourt Power Partners, LLC (“Merricourt”) – which has been developing a 150 MW wind farm in North Dakota – against the Midcontinent Independent System Operator, Inc. (“MISO”) as premature. In the complaint, Merricourt sought an advanced determination that MISO would not terminate its Generator Interconnection Agreement (“GIA”) even though it would not reach commercial operation within the three year period permitted under the GIA.

Under its tariff, MISO may terminate a GIA if the generating facility has failed to reach commercial operation in a three consecutive year period beginning on the original commercial operation date (“COD”). To terminate the GIA under these circumstances, MISO is required to give 90 days’ advance written notice. The Merricourt GIA listed December 1, 2012 as the original COD. However, in its complaint, Merricourt conceded that it would fail to meet its original COD by three years on December 1, 2015, meaning MISO could seek to terminate the Merricourt GIA under its tariff. According to Merricourt, the wind developer asked MISO whether it would seek to terminate the Merricourt GIA, but MISO refused to provide any such guidance. Merricourt explained that it then filed its complaint at FERC, requesting that FERC determine that MISO’s refusal to provide an early determination (or otherwise amend the Merricourt GIA to extend the COD) was unjust and unreasonable, and unduly discriminatory and preferential.

FERC denied the complaint as premature on the grounds that nothing in MISO’s tariff or FERC’s precedent requires MISO to make an advance determination on whether to terminate the Merricourt GIA before the expiration of the three-year post-COD period. Additionally, because MISO had not yet filed to terminate the Merricourt GIA, FERC indicated it would not pre-judge the merits of either an extension or a termination in this instance. However, in reaching its decision, FERC reminded MISO that it must implement its permissive right to terminate GIAs in a not unduly discriminatory manner, particularly considering MISO’s recent decisions to grant extensions of CODs for other projects or withdraw terminations.

A copy of the order can be found here.