As Yogi Berra once said, “it’s like déjà vu all over again.”  Once again, a transmission developer asks the Commission to put already hard-pressed consumers on the hook for a laundry list of “incentives.”  And once again, the Commission approves almost all of the list.  As I have said repeatedly over the past four years, it is long past time for this Commission to do its job of protecting consumers by cutting back on its unfair practice of handing out “FERC candy” without any serious consideration of the impact on consumers already struggling to pay monthly power bills. The statute simply does not mandate such lavish generosity to developer interests at the expense of consumers.  As discussed in great detail below, this list of incentives is especially difficult to stomach for consumers in Virginia, Maryland, and West Virginia given the egregious history of the Potomac-Appalachian Transmission Highline (PATH) project, about which I have written many times.

Applying for CPCN/CCNs from the Maryland, Virginia, and West Virginia state commissions is a threshold step for Valley Link during the pre-construction phase, because obtaining CPCN/CCNs will improve Valley Link’s ability to secure the needed land rights to support the Project Portfolio. Because the PJM Board only recently approved the Valley Link Portfolio Project on February 26, 2025, Valley Link has not yet initiated the CPCN/CCN process. Valley Link faces significant time pressure to initiate the CPCN/CCN process within the next few months because CPCN/CCN proceedings in these states can be lengthy.

Valley Link is committed to collaborating with residents, local governments and other stakeholders in the project communities at every stage of the process. Community engagement is crucial for making informed decisions that reduce or prevent potential impacts while delivering for the public essential infrastructure necessary to address large-scale reliability needs that the PJM grid faces both in the short term and for years to come.

20241213_motion_gbx_to_dismiss_petition.pdf
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20250110_response_petitioners_to_gbx_mtd.pdf
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GBX's Motion states that building an interstate transmission line across their properties does not constitute any “invasion of a legally protected interest.” (GBX Motion at 15). As GBX sees things, Petitioners’ objections to GBX’s likely condemnation actions, its subjection of Petitioners to forced sales of their lands, and its construction of its transmission line across their farms and properties are "purely academic concerns." (GBX Motion at 19).

GBX wants this Court to ignore the Illinois landowners' objections to GBX's entry on their lands because Petitioners’ objections are nothing more than "...general...moral, ideological or policy objection[s] to a particular [FERC] action" (GBX Motion at 15).

GBX’s contempt for the property rights of Petitioners would be bad enough if it stopped there. But having hit rock bottom, GBX begins to dig.  After omitting any mention of its need for eminent domain power and belittling Petitioners’ interest in avoiding forced sales of their properties, GBX tells this Court that Petitioners are a group of “…citizens who … roam the country in search of governmental wrongdoing." (GBX Motion at 3).

But it was GBX, not Petitioners, who lobbied the Illinois General Assembly for custom-tailored legislative changes to provide a glide path for its transmission line project. (Petitioners’ Initial Brief, at 21).

It was GBX, not Petitioners, who inserted in its custom-tailored legislation a route through the nine Illinois counties in which Petitioners’ farms and properties are located. (Petitioners’ Initial Brief at 22).

And it was GBX, not Petitioners, who sent minatory letters to Petitioners stating that, if they didn’t sell their property to GBX voluntarily, GBX would file an eminent domain lawsuit against them to take their property anyway.  See Exhibit B to this Response.

So GBX is partly correct: there is one party to this appeal who has been roaming across the country looking to pick legal fights with strangers. But it’s not Petitioners.
​
FERC’s unlawful order makes possible GBX’s exercise of the power of eminent domain against Petitioners. GBX’s plan to take Petitioners’ lands involuntarily and to build its high voltage transmission line across their properties presents precisely the kind of particularized injury that affects Petitioners in a concrete and personal way required for standing.  TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021).

Whether certain transmission costs should be directly assigned to a new large-use customer class?

While this matter (and the November 2023 RTEP Order) both arise in PJM, the issue of the proper regional cost allocation for public policy-driven transmission projects is not confined to PJM, but is applicable across all of the nation’s multi-state RTOs.  Since RTOs are regulated by this Commission, I believe that the time has come for this Commission to take the lead in its convening role to initiate a proceeding, such as a Notice of Inquiry, a series of technical conferences, or by initiating an FPA section 206 proceeding outside this docket, posing such important questions, among others, as:  What is the proper definition of a public policy transmission project?  Does the definition of public policy transmission project need to be changed for purposes of regional cost allocation?  How should public policy transmission projects be cost-allocated in a multi-state RTO?  In my view the states themselves need to be at the forefront of deciding these questions, as it is their own state policies that are largely making these questions unavoidable, as these two recent PJM RTEP cases graphically illustrate.

By disseminating our information to media, allies, and decision makers, we seek to disrupt fossil fuel-funded misinformation, separate polluters from policymakers, and accelerate the transition to a clean economy.

rm22-5_final.pdf
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rm22-5_reply_comments_final.pdf
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BRA auctions are usually held three years in advance of the delivery year. While the 2025/2026 auction was originally scheduled to be held in May 2022, it was suspended while the Federal Energy Regulatory Commission (FERC) considered the approval of new capacity market rules. The recent July 2024 auction stems from a compressed schedule that aims to return to the three-year forward basis. According to PJM, the next BRA—for the 2026/2027 delivery year—is scheduled for December 2024.

er2401998.pdf
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potomac_edison_designated_entity_acceptance_letter.pdf
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MARL’s in-service date is already slipping. Why is that relevant? Because the electric grid abhors a vacuum. When a planned transmission (or generation) project fails to come online when needed, other projects will take its place. That’s exactly what happened with the PATH project, and what is likely to happen with the MARL project, including the Potomac Edison portion that is the subject of this filing. 

This transmission project may never happen, but PJM and the utilities involved feel they should pursue it anyhow. Is that because there are no other options? Or is it because there’s no harm done to them if it fails. All the burden of failure falls on ratepayers, and this encourages the utilities to take more of a chance than they would it they had some skin in the game. Utilities shoulder no risk, while collecting all the rewards. 
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Consumers have zero control over the project’s risk factors, but they are the ones left holding the bag when it fails. As consumers, we simply cannot afford to continue to financially cover the failures of grid planners and transmission developers simply because we are the one entity without a voice in incentive awards. 

petition_for_revew_final_w_exh_a.pdf
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In October 2023, GBX filed with FERC its Application for Amendment to Existing Negotiated Rate Authority (the “2023 GBX FERC Application”), for which FERC opened its Docket ER24-59. Absent from the 2023 GBX FERC Application is any mention of its failure to obtain FERC’s prior approval under FPA Section 203 for the 2020 upstream ownership transfer of GBX to Invenergy. GBX instead continually characterizes certain noncontroversial changes to its transmission project as amendments to its existing negotiated rate authority. Because FERC never approved the upstream ownership transfer of GBX to Invenergy under FPA Section 203, after the January 2020 closing of that transaction GBX had no negotiated rate authority to amend.
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While FERC claims in its Order that it is reviewing GBX’s negotiated rate authority de novo based on its current ownership structure (Order, ¶71), it plays right along with GBX, dismisses as irrelevant GBX’s failure to obtain prior FPA Section 203 approval for the 2020 upstream ownership transfer, and expressly recognizes GBX’s continuing negotiated rate authority (Order, pg. 27). FERC thus backdates GBX’s negotiated rate authority to January 2020. 

FERC’s recognition of GBX’s negotiated rate authority as continuing from any time prior to February 29, 2024 not only gives the lie to its claim that it has conducted a de novo review of that authority, it is a patently unlawful retroactive approval of an upstream ownership transfer that closed more than four years before FERC issued the Order.

Ensure that any representative acting on the applicant’s behalf states their full name, title, and employer, as well as the name of the applicant that they represent, and presents a photo identification badge at the beginning of any discussion with an affected landowner, and provides the representative’s and applicant’s contact information, including mailing address, telephone number, and electronic mail address, prior to the end of the discussion.

Ensure that all communications with affected landowners are factually correct. The applicant must correct any statements made by it or any representative acting on its behalf that it becomes aware were:
(i) Inaccurate when made; or
(ii) Have been rendered inaccurate based on subsequent events, within three business days of discovery of any such inaccuracy.

Ensure that communications with affected landowners do not misrepresent the status of the discussions or negotiations between the parties. Provide an affected landowner upon request a copy of any discussion log entries that pertain to that affected landowner’s property.

Provide affected landowners with updated contact information whenever an applicant’s contact information changes.

Communicate respectfully with affected landowners and avoid harassing, coercive, manipulative, or intimidating communications or high-pressure tactics.

Except as otherwise provided by State, Tribal, or local law, abide by an affected landowner’s request to end the communication or for the applicant or its representative to leave the affected landowner’s property.

Except as otherwise provided by State, Tribal, or local law, obtain an affected landowner’s permission prior to entering the property, including for survey or environmental assessment, and leave the property without argument or delay if the affected landowner revokes permission.

Refrain from discussing an affected landowner’s communications or negotiations status with any other affected landowner. 

​Provide the affected landowner with a copy of any appraisal that has been prepared by, or on behalf of, the applicant for that affected landowner’s property, if any, before discussing the value of the property in question.  

impacted_landowner_comments.pdf
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"In a time of universal deceit, telling the truth is a revolutionary act."  -- George Orwell

The final rule should be seen for what it is:  a pretext to enact, through administrative action, a sweeping legislative and policy agenda that Congress never passed.  The final rule claims statutory authority the Commission does not have to issue an absurdly complex bureaucratic blizzard of mandates and micromanagement to be imposed on every transmission provider in the United States for the transparent goal of spending trillions of consumers’ dollars on transmission not to serve consumers in accordance with the FPA, but instead to serve political, corporate, and other special-interest agendas that were never enacted into law.  The rates for transmission that will result from the final rule will not only be unjust, unreasonable, unduly discriminatory and preferential, but grossly unfair to tens of millions of American consumers already burdened with rapidly growing monthly power bills.   

...the final rule inflicts staggering costs on consumers by promoting the construction of trillions of dollars of transmission projects, not to serve consumers in accordance with the FPA, but to serve a major policy agenda never passed by Congress, to serve the profit-making interests of developers of politically preferred generation, primarily wind and solar, and to serve corporate “green energy” preferential purchasing policies.

 In fact, the final rule is not even about planning transmission, but is about planning policy, and it is very preferential about the policies it wants to promote.  As with the Great Oz, pulling back the curtain exposes the final rule for what it really is:  An essential component in a comprehensive plan by the current presidential administration to push what the media describe as “green policies” designed to prefer and promote the wind and solar generation it favors while simultaneously forcing the shutdown of the fossil fuel generation it disfavors, both needed to meet its political commitment.  Let me emphasize:  Whether the policies being promoted in this final rule can be described as “green, purple, red or blue” is irrelevant.  The point is that FERC, as an independent agency, has no business promoting the policies of any one party or presidential administration, especially when, as here, the effort to do so goes far beyond FERC’s legal authority and fails to perform our consumer protection function under the FPA.

Put most simply, the final rule is a shell game that plays this way: 
Step One:  For planning and cost allocation purposes, throw transmission projects that solve specific reliability problems or reduce congestion costs into the same bucket as projects designed to promote public policies or corporate “green energy” preferences and disguise the purpose of very different projects by re-labeling all projects in the new bucket with the innocuous-sounding name “Long-Term Regional Transmission Facilities.”
Step Two:  Mandate planning inputs that must be used in determining which projects get selected for regional plans, which starts the money flowing from consumers to developers before any state has even evaluated the need for, or cost of, the projects. 
Step Three:  Mandate benefits that will ultimately affect the allocation of costs to consumers across a multi-state region.  Combined with Steps One and Two, this makes consumers involuntary “beneficiaries” who will then be forced to pay for projects that promote another state’s public policy or corporate “green power” commitments. 
Step Four:  Order all transmission providers to develop and file a cost allocation formula that will automatically be the default applicable to the entire bucket of Long-Term Regional Transmission Facilities. 
Step Five:  Remove the NOPR’s requirement that states must consent to the details of Steps One through Four before their consumers can be burdened with costs.

Instead, what we have in today’s final rule is a patent instance of regulatory capture with the singular goal to build out preferential policy and corporate-driven projects, steamrolling the states and consumers alike.

Today’s final rule is much less the product of reasoned decision-making or the agency’s specialized expertise, as of political pressure and special interest lobbying.   In the chapter on “regulatory capture” in future economics textbooks, today’s final rule should be a featured case study.

​By doing nothing about the consumer-paid “FERC candy” incentives that this Commission regularly hands out to developers, and even removing the provisions dialing back the CWIP incentive—and with its overall aim to pile trillions of dollars of additional costs for big corporate and politically-driven transmission on consumers, which will largely flow to the increased profits of wind, solar and transmission developers—the final rule could be the inspiration for one of the great country and western songs “Lord Have Mercy on the Working Man.”  Warner Bros. Nashville 1992 (“Why’s the rich man busy dancing while the poor man pays the band?  Oh they’re billing me for killing me, Lord have mercy on the working man!”).

Mary O’Driscoll, FERC approves incentives for AEP, Allegheny grid projects, Greenwire, July 21, 2006 (“The approvals came as the commission finalized rules intended to promote transmission-grid additions that outline specific rate and other incentives that FERC will consider for future construction projects — the ‘FERC candy’ that critics contend gives the utilities incentives but not much in the way of corresponding requirements.”) (emphasis added), https://subscriber.politicopro.com/article/eenews/2006/07/21/ferc-approves-incentives-for-aep-allegheny-grid-projects-234508.