American Transmission Company (ATC) in a Sept. 13 filing reemphasized a previous argument in an attempt to clarify claims by Xcel Energy (NYSE:XEL) and the Midwest ISO (MISO) that it is attempting to bypass certain compliance procedures with Order 1000.
The filing is the latest in the ongoing dispute between ATC and Xcel Energy over the right to build and own the La Crosse-Madison transmission project, a 150-mile, 345-kV transmission line in Wisconsin.
ATC on Aug. 20 requested rehearing of FERC’s July 19 order upholding Xcel Energy’s claim to build the line, in which the commission found that a provision of the MISO transmission owners agreement (TOA) which afforded Xcel Energy equal ownership of the project constituted a right of first refusal (ROFR) provision. However, FERC Order 1000 requires the removal of ROFR language from tariffs and contracts.
According to ATC, FERC cannot find a provision unjust and unreasonable and fail to remedy it.
“Section 206 and the relevant case law make clear that the commission cannot choose to enforce an unlawful contract provision on the ground that a forward-looking generic remedy – which will not address ATCLLC’s right to develop the project at issue – will be required under a rule-making,” the independent transmission developer said in the Sept. 13 filing.
“Moreover, no valid reason exists for the commission not to provide a remedy in this case, since doing so involves nothing more than granting ATCLLC the right to build and own a transmission project that it has developed and sponsored in the MISO planning process, on the grounds that it contravenes Section 206 of the Federal Power Act (FPA), or specifically that FERC cannot enforce an unjust and unreasonable contract,” ATC’s filing continued.
ATC cited an example of FERC’s involvement in a case in which a pending rule-making, in this case Order 1000, does not suspend the commission’s obligation to remedy an unjust and unreasonable contract.
“In Southern Company Services, for example, the commission ruled that it would entertain complaints concerning potential unduly discriminatory conduct in the context of small generator interconnection agreements even though a related rulemaking proceeding was then pending before the commission,” ATC said in the filing.
ATC also noted it is not asking that MISO’s tariff revisions to comply with Order 1000 be implemented sooner than required.