By William Opalka

FERC’s general counsel told a congressional subcommittee that there are “significant benefits” to a proposed amendment to the Federal Power Act that would allow challenges to rates that take effect as a result of a commission deadlock.

The proposed amendment to Section 205 was considered in a hearing before the House Energy and Power Subcommittee on Feb. 2.

The Fair RATES Act (H.R. 2984) was proposed last year by Rep. Joseph P. Kennedy III (D-Mass.) after he found there was no legal recourse to challenge the results of ISO-NE’s eighth Forward Capacity Auction. The results were certified “by operation of law” in 2014 when commissioners failed to take action and indicated in public statements that they were split 2-2. (See FERC Commissioners at Odds over ISO-NE Capacity Auction.)

FCA 8, effective for the 2017/18 capacity commitment period, saw capacity costs total $3 billion, about triple the previous year’s results. New England’s congressional delegation protested the results but found itself in legal limbo because there was no FERC order on which to request a rehearing by the commission, nor any way to appeal to federal court.

“Appellate review is an important procedural avenue for those who do not prevail before an administrative agency. It would also correct an unusual outcome in a specific context that may arise when the commission has four voting members,” FERC General Counsel Max Minzner said.

FERC’s five-member panel dropped to four again last fall with the departure of Commissioner Philip Moeller. Thus the commission could find itself split again when it is asked to certify the results of FCA 10, which was held Monday. (See Prices Down 26% in ISO-NE Capacity Auction.)

“This outcome is certainly not impossible before we get this law across the finish line … given the fact that there are four [commissioners] … and no other nominations are in the pipeline,” Kennedy said.

Kennedy previously failed to get FERC to reconsider the FCA 8 results. (See Congressional Meeting Fails to Sway LaFleur on Capacity Results.)

Minzner said a complainant persuasive enough to convince a second commissioner of the merits of its case deserved an opportunity for further review.

He said he is aware of only six times under the FPA or the Natural Gas Act when a public utility filing went into effect without a FERC order. However, Minzner said he believes any change in the law should apply to “future cases,” leaving FCA 8 results intact.

After the congressional hearing, Sen. Edward Markey (D-Mass.) introduced a version of Kennedy’s bill in the upper chamber (S. 2494). The two congressmen also wrote a letter to President Obama urging a nomination to fill the current vacancy and pointing out that the five-member panel could be reduced to three with Commissioner Tony Clark not seeking reappointment when his term ends in June. (See Clark Won’t Seek New FERC Term.)