On March 4, the Federal Energy Regulatory Commission (FERC) issued an order accepting a notice of termination of a Generator Interconnection Agreement for a wind farm. The Generator Interconnection Agreement was to allow a 150 MW wind farm (to be constructed by Merricourt Power Partners, LLC) to access the transmission system of the Midcontinent Independent System Operator (MISO). Commissioner LaFleur’s dissent expanded the discussion to FERC’s broader role in infrastructure development.
The agreement at issue had a commercial operation date of December 1, 2012. The wind farm has not been constructed, though, and in August 2015, Merricourt filed a complaint at FERC seeking assurance that this interconnection service would still be available when its project was ready to operate. Merricourt noted that under its agreement with MISO, MISO could try to terminate the agreement on December 1, 2015 (three years after the commercial operation date listed in the agreement). Merricourt alleged that it had a construction plan and schedule to achieve an amended commercial operation date of December 31, 2016. FERC denied the complaint in October as premature. Then in December, as Merricourt predicted, MISO filed a notice of termination of the Generator Interconnection Agreement due to the delay.
Merricourt argued, among other things, that it had made substantial progress toward development (including funding almost $18 million in network upgrades that are operational) and that MISO had granted extensions to other projects in similar circumstances. FERC disagreed and accepted the notice of termination.
Commissioner LaFleur dissented from this decision. She argued that FERC had the discretion to consider whether an extension of the commercial operation date is appropriate, and that Merricourt was a case that warranted such an extension. In addition to her specific concerns about Merricourt’s circumstances, she noted that her dissent is the “latest in a series … in which [she has] expressed concern about the Commission’s refusal to exercise its discretion in individual cases addressing infrastructure development.” According to Commissioner LaFleur, in failing to give developers like Merricourt more time, FERC may be creating “unnecessary barriers to … development.”