On December 14, 2018, Vineyard Wind, LLC (“Vineyard Wind”) filed a Petition with FERC to waive the pro-rata proration requirements of the ISO New England, Inc. (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”) so that Vineyard Wind could participate in the upcoming ISO-NE Forward Capacity Auction 13 (“Auction 13”) as a Renewable Technology Resource (“RTR”).  Because time was of the essence, Vineyard Wind asked FERC to render an expedited decision no later than January 29, 2019.  FERC took no action on the Petition, however, and as of this writing, has also not taken any action on Vineyard Wind’s subsequent Emergency Motion for relief, rendering it all but certain that Vineyard Wind will be unable to participate in Auction 13.

Prior to its Petition, Vineyard Wind timely submitted a request with ISO-NE for both a New Capacity Qualification and RTR status in Massachusetts so that it could participate in Auction 13, scheduled to take place on February 4, 2019.  Generators that obtain RTR status can be exempted from ISO-NE’s Minimum Offer Price Rule—a market pricing policy that prevents generators from bidding below a certain amount in an auction.

ISO-NE granted Vineyard Wind’s status as a New Generating Capacity Resource but denied Vineyard Wind’s request for an RTR designation because federal waters were involved, which requires federal authorization.  Since then, ISO-NE and the New England Power Pool Participants Committee (“NEPOOL”) jointly-filed proposed ISO-NE Tariff modifications (“ISO-NE Tariff Filing”) that would, among other things, clarify that off-shore wind projects sited in federal waters could qualify for RTR status on a prospective basis.  Needing relief from ISO-NE’s currently effective Tariff, Vineyard Wind filed its December 14, 2018 Petition seeking waiver from various ISO-NE Tariff requirements so that Vineyard Wind could obtain RTR classification before Auction 13 ended.  Although Vineyard Wind stressed that time was of the essence, the Commission did not issue an Order in response to Vineyard Wind’s Petition.  Oddly enough though, on January 29, 2019, the Commission issued an Order accepting the ISO-NE Tariff Filing (see February 6, 2019 edition of the WER).  To press the issue, on January 31, 2019, Vineyard Wind filed a letter with FERC requesting issuance of an Order.

Various entities filed comments supporting and opposing Vineyard Wind’s Petition.  The Massachusetts Department of Energy Resources filed supportive comments, arguing that Vineyard Wind’s “long-term contracts provide a highly cost-effective source of clean energy generation for Massachusetts customers” and “the total direct and indirect benefits to Massachusetts ratepayers from the long-term contracts with Vineyard Wind are expected to be approximately $1.4 billion.”  Massachusetts’ Governor filed a similarly supportive letter. The New England Power Generators Association, Inc. opposed Vineyard Wind’s Petition, arguing, among other things, that it essentially amounted to a request to make the ISO-NE Tariff Filing effective retroactively.

On February 1, 2019, ISO-NE issued a statement that Vineyard Wind would not be included as an RTR for Auction 13, due to the Commission not issuing an Order on Vineyard Wind’s Petition.  Three days later, Vineyard Wind filed an Emergency Motion for FERC to either issue an immediate stay of the ISO-NE Auction 13, or to vacate and re-run the prior Auction 13 subject to Commission action.  Vineyard Wind argued that “denying a legitimate and timely request for a waiver will negatively impact ‘parties’ confidence in the [FERC] rules governing future proceedings.’”  Vineyard Wind further noted that it remains hopeful that FERC will faithfully address its petition because “justice so requires” and Vineyard Wind will suffer irreparable harm if FERC does not afford it RTR status in the ISO-NE’s Auction 13.  Vineyard Wind asserted that conducting Auction 13 at a date in the near future would not harm other market participants or conflict with other important dates in ISO-NE’s Tariff because the Capacity Commitment Period associated with Auction 13 does not begin until June 1, 2022.

According to a joint statement from Commissioners Cheryl A. LaFleur and Richard Glick, FERC did not act because it lacked a majority vote to move the Petition forward.  The joint statement further argued that the parties, the people of the New England states, consumers, and auction participants “deserved better.” Chairman Neil Chatterjee echoed Commissioners LaFleur and Glick’s sentiments on Twitter, and stated that although he does not discuss internal Commission deliberations, he too was disappointed that the Commission was unable to act on the waiver request.  Chairman Chatterjee further stated that the Commission speaks through its orders—not individual Commission statements.

Click here to read Vineyard Wind’s Petition, and here to read its Emergency Motion.

The joint statement issued by Commissioners LaFleur and Glick can be found here.