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178 FERC ¶ 61,063
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Richard Glick, Chairman;
James P. Danly, Allison Clements,
Mark C. Christie, and Willie L. Phillips.
ISO New England Inc. Docket No. ER22-355-001
ORDER DENYING STAY
(Issued January 28, 2022)
On January 11, 2022, pursuant to Rule 212 of the Commission’s Rules of
Practice and Procedure,1 NTE Connecticut, LLC (NTE) filed a motion for stay of the
Commission’s January 3, 2022 order 2 accepting ISO New England Inc.’s (ISO-NE)
resource termination filing(Motion). 3 For the reasons discussed below, we deny NTE’s
motion for stay.
I. Background and Motion for Stay
On November 4, 2021, pursuant to section 205 of the Federal Power Act (FPA),4
ISO-NEsubmitted privileged and public (i.e., redacted) versionsof a filing to terminate
the Capacity Supply Obligation (CSO) for Resource No. 38663/Project 12280, also
known as Killingly Energy Center (Killingly). The Project Sponsor 5 is NTE.ISO -NE
1 18 C.F.R. § 385.212(2021).
2 ISO New England Inc. , 178 FERC ¶ 61,001(2022) (January 3 Order).
3 NTE also filed a request for rehearing pursuant to 18 C.F.R. § 385.713(2021).
We do not here consider the merits of the request for rehearing.NTE filed privileged and
public versions of its Motion. This order cites to the public version.
4 16 U.S.C.§ 824d.
5 Capitalized terms not defined herein are used consistent with the definitions in
the Transmission, Markets and Services Tariff (Tariff or ISO-NE Tariff).SeeISO -NE,
Transmission, Markets and Services Tariff, §I.2 (Rules of Construction; Definitions)
(139.0.0)(ISO -NE Tariff);see also id.(defining “Project Sponsor” as “an entity seeking
to have a New Generating Capacity Resource, New Import Capacity Resource or New
Demand Capacity Resource participate in the Forward Capacity Market”).
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Docket No. ER22- 355- 001 -2 -
contended that NTE revised Killingly’s critical path schedule mile stone dates such that
Killingly will achieve all its critical path schedule milestones (including commercial
operation) more than two years after the beginning of the 2022- 2023 Capacity
Commitment Period, the Capacity Commitment Period for which Killingly first received
a CSO. 6 Accordingly, under section III.13.3.4.A of the Tariff, ISO-NE exercisedits right
to seek an order from the Commissionterminating Killingly’s CSO.
On January 3, 2022, the Commission accept ed ISO -NE’s request to terminate
Killingly’s CSO, beginning with the 2022-2023Capacity Commitment Period, to become
effective January 4,2022 .The Commission found, based on a review of the record,
including the confidential information provided by ISO- NE and NTE, that the relevant
condition for termination set forth in Tariff section III.13.3.4A ha dbeen met. 7
On January 11, 2022, NTE filed its Motionrequesting stay of the Commission’s
January 3 Order. NTE requestsa stay for 120 days from the date of the Commission’s
ruling on the Motion. 8 NTE states that,during the stay, it will demonstrate that the
commitments it made to ISO -NE in November 2021 remain viable and that NTE can
continue on the path for timely completion of Killingly. NTE avers that,if NTE is unable
to show within this period that it has made meaningful and adequate progress toward
completion, the stay may expire. Additionally, NTE requestsan expedited ruling on this
Motionso thatit may participate in the upcoming Forward Capacity Auctionscheduled
to commence on February 7, 2022 (FCA 16)and, if necessary, so that NTE may seek an
emergency stay from the U.S. Court of Appealsfor the D.C. Circuit.
NTE argues that it meets the Commission’s standard for a stay of the January 3
Order. First, NTE contends that it will sufferirreparable harm from the January 3 Order,
which cannot be undone even if the Commission grants its request for rehearing. NTE
explains that ISO- NE’s termination means that Killingly is disqualified from the revenues
it would have earned from the CSOit won in the thirteenth Forward Capacity Auction
(FCA 13), loses its status as an existing resource and is foreclosed from participating in
future ISO-NE capacity auctions, including the auction scheduled for February 7, 2022.
NTE argues that,because the Commission does not rerun auctions,once capacity
6 ISO -NE Answer at 2.
7 January 3 Order, 178 FERC ¶ 61,001at P 25.
8 Motion at 4.
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revenues are lost, they cannot be returned should NTE later prevail. NTE maintains that
the project is “effectively killed”and lost to the market, after millions of dollars have
been spent on its development. 9
Second, NTE argues that granting its motion will not substantially harm other
parties. NTE states that Killingly secured a CSO in FCA 13 and is cleared as a qualifying
resource for FCA 16, and because it could have been built within its commercial
operation deadline, other market participants do not have a legitimate interest in keeping
Killingly out of the market.10
Third, NTE argues that issuing a stay is in the publicinterest. NTE contends that
Killingly will be built, absent the termination, and will provide reliability benefits for the
New England region. NTE states that issuing a stay will preserve the status quo ante
while its rehearing request and possible appeal are resolved. 11
II. Responsive Pleadings
On January 18, 2022, ISO-NE and New England Power Generators Association,
Inc. (NEPGA) each filed answers. ISO -NE argues that the Commission should deny the
Motion because NTE fails to satisfy the standard for such extraordinary relief.ISO -NE
states that the resource termination filingprovided NTE with a full and fair opportunity to
demonstrate that it couldcomplete the Killingly project within the time prescribed by the
Tariff, that NTE failed to do so, and that NTE is seeking a “second bite at the apple.”12
ISO-NE argues that NTE has not demonstratedthe irreparable harm required for a
stay. ISO -NE states that losses of financial assurance, capacity revenues and dollars
spent on unsuccessful development of a project are inherently losses of an economic
nature that do not amount to irreparable harm. 13 ISO -NE alsostates that NTE’s claim
that it is disqualified from participating in future FCAs is erroneous because NTE ma y
submita Show of Interest Form to seek qualification of the project for participation in
future FCAs. Moreover, ISO -NE states that the purpose of participating in a capacity
9 Motion at 8-9.
10 Id. at 8.
11 Id. at 10.
12 ISO -NE Answer at 4.
13 Id. at 5.
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auction is not merely ceremonial; participation in auctions is for resources that can and
will in fact delivercapacity to the market at the due time because they are operational or
demonstrably likely to be, and Killingly is not. 14
NEPGA requests that the Commission deny NTE’s Motionbecause issuing ast a y
would cause substantial harm to existing and new capacity resources . NEPGA explains
that allowing Killingly to offer as a price-taker in FCA 16would cause significant harm
to other capacity resources participating in the FCA, including other resourcesthat would
not clear the FCA because Killingly would occup y over 600 MW of capacity at the
bottom of the supply stack.NEPGA further argues that permitting resources that are
unlikely to enter commercialoperationto offer as price-takersinterferes with the orderly
competition among capacity resources and would cause the FCA to clear at a price
reflecting a zero-priced offer from a phantom capacity resource. 15 NEPGA therefore
disagrees with NTE’s assertion that no other market participants would beharmed. 16
NEPGA disputes NTE’s claim that granting theMotion would be in the public
interest because it “will enhance reliability in the New England region, and help to lower
capacity prices.” 17 NEPGA argues thatKillingly serves no reliability purpose, explaining
that ISO -NE relies on a resource that clears the FCA to actually deliver on that capacity ;
therefore, when a resource does not deliver, especially a resource offering a large
quantity of capacity like Killingly, it interferes with the balance between peak load and
resources procured to provide capacity. 18 Lastly, NEPGA argues that granting NTE’s
14 Id.
15 NEPGA Answer at 4.
16 NEPGA also disputes NTE’s claim that Killingly is cleared as a qualifying
resource for the upcoming FCA 16. NEPGA states that ISO-NE explained in an
informational filing to the Commission regarding FCA 16 that, if Killingly’s CSO is
terminated, Killingly will not be able to participate in FCA 16. NEPGA states that, with
theCommission’s issuance of the January 3 Order,ISO -NE has now taken the necessary
steps and Killingly is thus not “cleared as a qualifying resource.” NEPGA Answer at 3
(citing ISO New England Inc., Informational Filing for Qualification in the Forward
Capacity Market, Docket No. ER22-391-000 (filed Nov. 9, 2021)).
17 NEPGA Answer at 4 (citing Motion at 9).
18 Id. at 4-5.
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Motion would run contrary to well- established Commission principles of finality and
decisiveness of Commission orders. 19
III. Discussion
We find that NTE has failed to meet the standard applied by the Commission for
granting a request for stay.
The Commission reviews requests for stay under the standard established by
the Administrative Procedure Act,and grants a stay when “justice so requires.” 20
In assessing a request for stay, we consider several factors, which typically include:
(1) whether the party requesting the stay will suffer irreparable injury without a stay;
(2) whether issuing the stay may substantially harm other parties; and (3) whether a
stay is in the public interest. 21 If the party requesting the stay is unable to demonstrate
that it will suffer irreparable harm absent a stay, we need not examine the other factors. 22
As a general matter, we do not favor stays, which can result in regulatory uncertainty. 23
TheU.S. Court of Appeals for the District of Columbia Circuit hasrecognized
that,although the concept of irreparable harm does not readily lend itself to definition,
courts have developed well-known principles to guide a determination, which include
that the injury must be both certain and great, it must be actual and not theoretical;and
injunctive relief will not be granted against something merely feared as liable to occur
at some indefinite time.24 Implicit in these principles is the further requirement that
19 Id. at 5 (citing Enable Gas Transmission, LLC, 153 FERC ¶61,055, at P 118
(2015); see also Millennium Pipeline Co., LLC , 141 FERC¶61,022, at P 13 (2012)).
20 Tennessee Gas Pipeline Co., L.L.C., 157 FERC ¶ 61,154, at P 4 (2016);
Algonquin Gas Transmission, LLC, 156 FERC ¶ 61,111, at P 9 (2016); Enable Gas
Transmission, 153 FERC ¶ 61,055 at P 118; Transcontinental Gas Pipe Line Co.,
150 FERC ¶ 61,183, at P 9 (2015).
21 See Enable Gas Transmission, 153 FERC ¶ 61,055 at P 118; Millennium
Pipeline Co., 141 FERC ¶ 61,022 at P 13.
22 See, e.g., Algonquin Gas Transmission , 156FERC ¶ 61,111 at P 9.
23 See, e.g.,Millennium Pipeline Co., LLC, 141 FERC ¶ 61 ,022at P 22.
24 Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
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