By Rich Heidorn Jr.

PJM will delay the transition auctions for the new Capacity Performance regime to comply with a Federal Energy Regulatory Commission order that the RTO include demand response and energy efficiency.

FERC ruled 4-1 late Wednesday that the auctions, which were set to begin July 27, would not be just and reasonable without permitting DR and EE resources to participate. PJM must make a filing within 15 days describing how it will comply with the order and setting a new schedule.

The commission ruled in response to a joint complaint by the PJM Industrial Customer Coalition, environmentalists and regulators or consumer advocates from Delaware, D.C., New Jersey, Maryland, Pennsylvania, Illinois and West Virginia. A coalition of DR providers had filed a separate challenge to PJM’s exclusion.

New Schedule

Stu Bresler, senior vice president of market services, told the Markets and Reliability Committee on Thursday morning that the RTO will schedule the transition auctions after the Base Residual Auction Aug. 10-14.

The transition auction for 2016/17 had been set for July 27-28 and that for 2017/18 for Aug. 3-4. In a filing Tuesday, PJM set the 2016/17 auction for Aug. 26-27, with results posting on Aug. 31. The transition auction for the 2017/18 delivery year will be held Sept. 3-4, with results posted on Sept. 9.

PJM had said the transition auctions were designed to “provide a glide path” for generation resources that needed time to make investments to meet Capacity Performance requirements and were not necessary for other resources. PJM also said it was concerned about the continuing uncertainty following the D.C. Circuit Court of Appeal’s EPSA ruling voiding FERC Order 745, which set compensation rules for the resource in RTO energy markets.

FERC said, however, that Tariff provisions barring DR and other non-generation resources from participating in the transition auctions were “unduly discriminatory as applied to technically capable resources willing to perform as a Capacity Performance resource” (ER15-623, EL15-29).

Similarly Situated

“PJM has failed to provide an adequate explanation … as to how non-generation resources are not similarly situated to generation capacity resources for purposes of providing the capacity services PJM plans to procure through the transition auctions,” FERC continued.

The commission rejected PJM’s argument that participation in the transition auctions should be limited to resources that need to make investments to meet performance and fuel assurance requirements. “The purpose of the transition auctions is to procure a more reliable portfolio of capacity resources, and we see no basis for excluding non-generation resources capable of providing that service from participating,” the commission said.

FERC also dismissed PJM’s attempt to justify the prohibition on DR on the uncertainty over FERC’s jurisdiction. The commission’s appeal of the EPSA ruling is now pending before the Supreme Court.

The commission noted that it had previously rejected similar arguments as premature. It also observed that DR and EE resources selected in prior auctions are still expected to deliver on their capacity commitments. (See FERC: PJM Demand Response Stop-gap Measure ‘Premature.’)

The commission said PJM must file revisions to Attachment DD of its Tariff to allow all resources that qualify as Capacity Performance to participate in the transition auctions.

In its response to the complainants, PJM offered two alternatives for including DR and EE in the auctions, saying the “less risky” option would be to limit participation to previously cleared resources.

FERC said neither option was sufficient because they would bar participation in the auctions by DR and EE that did not previously submit sell offers for the delivery year.

“PJM’s current [Tariff] does not place such restrictions on generation capacity resources, and the commission finds that PJM has failed to support a disparate treatment of other Capacity Performance resources in its proposed alternatives,” FERC said.

Dissent

Commissioner Tony Clark dissented, saying the order was improper procedurally because the commission had previously approved “unambiguous” Tariff language barring DR and EE from the auctions.

“It is not PJM’s burden to now prove that an already agreed on transition incremental auction methodology is just and reasonable. Rather, it is complainants’ burden to explain why now, just weeks after the commission’s Capacity Performance order and just days before the first transition incremental auction, the plain Tariff reading of Attachment DD, section 5.14D(B)(3) is unjust and unreasonable.”

Commissioner Philip Moeller responded in a concurring statement. “While a close reading of PJM’s proposed Tariff provisions indicates that non-generation resources would be excluded from participation in the transition auctions, PJM’s voluminous filing did not make this fact, or its underlying justification, clear to PJM stakeholders or the commission,” Moeller wrote.

“PJM initially represented that its Capacity Performance proposal ‘preserves its current approach’ to demand response participation, in contrast to its more recent position that it intended to limit non-generation resource participation in the transition auction due to the uncertainty surrounding EPSA.”

Clark also said he agreed with PJM’s call for caution in the handling of DR because of the legal uncertainty.

“Rather than proclaiming, ‘damn the torpedoes, full speed ahead!’ I would prefer a modest approach whereby we avoid buying ourselves more potential trouble and refrain from actively adding more demand response megawatts into PJM’s capacity construct while it faces an uncertain future and possible disorderly ‘unwinding.’ While the pendency of Order No. 745 is not alone dispositive, it should cause us to proceed more cautiously than we are doing here.”