Participation of Aggregators of Retail Demand Response Customers in Markets Operated by Regional Transmission Organizations and Independent System Operators, 15933-15940 [2021-06106]
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Comment Date: 5:00 p.m. Eastern time
on April 12, 2021.
Dated: March 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2021–06105 Filed 3–24–21; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
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[Docket No. RM98–1–000]
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15933
Presenter or requester
3–5–2021
3–5–2021
3–17–2021
FERC Staff 1.
FERC Staff 2.
FERC Staff 3.
3–2–2021
3–15–2021
3–16–2021
State of Oregon, Governor Kate Brown.
South Carolina Senator Tom Davis.
U.S.Congress 4.
1 Telephone
Memorandum dated March 1, 2021 regarding call between Commission staff and Ted Sorenson, Kern & Tule Hydro.
dated 3/2/21 regarding communication between Commission staff and Laura Cowan, Klein Schmidt Group.
3 Email dated 03/08/2021 regarding communication between Commission staff and Mark Morris.
4 U.S. Representatives Jim Costa, Josh Harder, and John Garamendi.
2 Email
Dated: March 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2021–06104 Filed 3–24–21; 8:45 am]
BILLING CODE 6717–01–P
ACTION:
Federal Energy Regulatory
Commission
SUMMARY:
[Docket No. RM21–14–000]
Participation of Aggregators of Retail
Demand Response Customers in
Markets Operated by Regional
Transmission Organizations and
Independent System Operators
Federal Energy Regulatory
Commission.
AGENCY:
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Notice of inquiry.
DEPARTMENT OF ENERGY
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In this Notice of Inquiry, the
Federal Energy Regulatory Commission
seeks comment on whether to revise its
regulations that require a Regional
Transmission Organization or
Independent System Operator not to
accept bids from an aggregator of retail
customers that aggregates the demand
response of the customers of utilities
that distributed more than 4 million
megawatt-hours in the previous fiscal
year, where the relevant electric retail
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Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Notices
regulatory authority prohibits such
customers’ demand response to be bid
into organized markets by an aggregator
of retail customers.
DATES: Initial Comments are due June
23, 2021, and Reply Comments are due
July 23, 2021.
ADDRESSES: Comments, identified by
docket number, may be filed in the
following ways:
• Electronic Filing through https://
www.ferc.gov. Documents created
electronically using word processing
software should be filed in native
applications or print-to-PDF format and
not in a scanned format.
• Mail/Hand Delivery: Those unable
to file electronically may mail
comments via the U.S. Postal Service to:
Federal Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE, Washington, DC 20426.
Hand-delivered comments or comments
sent via any other carrier should be
delivered to: Federal Energy Regulatory
Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
• Instructions: For detailed
instructions on submitting comments,
see the Comment Procedures Section of
this document.
FOR FURTHER INFORMATION CONTACT:
Joseph Baumann (Technical
Information), Office of Energy Policy
and Innovation, Federal Energy
Regulatory Commission, 888 First
Street NE, Washington, DC 20426,
(202) 502–8373
Christopher Chaulk (Legal Information),
Office of the General Counsel—Energy
Markets, Federal Energy Regulatory
Commission, 888 First Street NE,
Washington, DC 20426, (202) 502–
6720
SUPPLEMENTARY INFORMATION:
1. In this Notice of Inquiry (NOI), the
Federal Energy Regulatory Commission
(Commission) seeks comment on
whether to revise its regulations that
require a Regional Transmission
Organization (RTO) or Independent
System Operator (ISO) (RTO/ISO) not to
accept bids from an aggregator of retail
customers (ARC) that aggregates the
demand response of the customers of
utilities that distributed more than four
million megawatt-hours (MWh) in the
previous fiscal year, where the relevant
electric retail regulatory authority
(RERRA) prohibits such customers’
demand response to be bid into
organized markets by an ARC (Demand
Response Opt-Out).1
1 See 18 CFR 35.28(g)(1)(iii). The Commission is
not seeking comment on the portion of this
regulatory text requiring the RTO/ISO not to accept
bids from an ARC that aggregates the demand
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2. It has been over a decade since the
Commission established the Demand
Response Opt-Out in Order Nos. 719
and 719–A.2 In that time, there have
been significant legal, policy, and
technological developments that may
warrant reconsideration of the Demand
Response Opt-Out. In light of those
developments and the records compiled
in various proceedings before the
Commission, we seek comment on the
potential impacts of removing the
Demand Response Opt-Out from the
Commission’s regulations. We also seek
comment on other changes relating to
demand response since the Commission
established the Demand Response OptOut.
I. Background
A. Final Rules on Demand Response
Participation in Organized Wholesale
Electric Markets
3. As relevant here, in Order Nos. 719
and 719–A the Commission directed
each RTO/ISO to amend its market rules
as necessary to: (1) Accept bids from
ARCs 3 that aggregate the demand
response of the customers of utilities
that distributed more than four million
MWh in the previous fiscal year; and (2)
not accept bids from ARCs that
aggregate the demand response of the
customers of utilities that distributed
more than four million MWh in the
previous fiscal year, where the RERRA
prohibits such customers’ demand
response to be bid into organized
markets by an ARC (i.e., the Demand
Response Opt-Out).4 The Commission
used a four million MWh cut-off to
distinguish small utilities, which the
Commission addressed through
additional regulations.5 The
Commission explained that the term
RERRA meant the entity that establishes
the retail electric prices and any retail
competition policies for customers, such
as the city council for a municipal
utility, the governing board of a
response of the customers of utilities that
distributed four million MWh or less in the
previous fiscal year, unless the relevant electric
retail regulatory authority permits such customers’
demand response to be bid into organized markets
by an ARC (Small Utility Opt-In).
2 Wholesale Competition in Regions with
Organized Electric Markets, Order No. 719, 125
FERC ¶ 61,071 (2008), order on reh’g, Order No.
719–A, 128 FERC ¶ 61,059, order on reh’g, Order
No. 719–B, 129 FERC ¶ 61,252 (2009).
3 The Commission stated that it would ‘‘use the
phrase ‘aggregator of retail customers,’ or ARC, to
refer to an entity that aggregates demand response
bids (which are mostly from retail loads).’’ Id. P 3
n.3.
4 Order No. 719–A, 128 FERC ¶ 61,059 at P 60;
see Order No. 719, 125 FERC ¶ 61,071 at P 154.
5 Order No. 719–A, 128 FERC ¶ 61,059 at PP 59–
60.
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cooperative utility, or the state public
utility commission.6
4. The Commission found that
allowing an ARC to act as an
intermediary for many small retail loads
that cannot individually participate in
the organized markets would improve
the competitiveness of RTO/ISO
markets to fulfill the Commission’s
statutory mandate to ensure supplies of
electric energy at just, reasonable, and
not unduly discriminatory or
preferential rates.7 The Commission
explained that aggregating small retail
customers into larger pools of resources
would expand the amount of resources
available to the market, increase
competition, help reduce prices to
consumers, and enhance reliability.8
The Commission also stated that the
proposal could encourage the
development of demand response
programs and thus provide retail
customers more opportunities available
through larger markets.9 Moreover, the
Commission noted that experiences
with existing aggregation programs in
some RTOs/ISOs showed that these
programs had increased demand
responsiveness in these regions.10 The
Commission stated that its intent was
not to interfere with the operation of
successful retail demand response
programs, place an undue burden on
state and local retail regulatory entities,
or raise new jurisdictional concerns.11
The Commission further found that this
action properly balanced the
Commission’s goal of removing barriers
to the development of demand response
resources in the RTO/ISO markets with
the interests and concerns of state and
local regulatory authorities.12
5. Subsequently, in Order No. 745,13
the Commission adopted revised
regulations addressing compensation
and cost allocation for demand response
in RTO/ISO energy markets. On appeal,
in EPSA, the United States Supreme
Court upheld the Commission’s
jurisdiction over the participation of
demand response resources in RTO/ISO
markets.14
6 Order
No. 719, 125 FERC ¶ 61,071 at P 158.
P 1.
8 Id. P 154.
9 Id.
10 Id.
11 Id. P 155.
12 Id. P 156.
13 Demand Response Compensation in Organized
Wholesale Energy Markets, Order No. 745, 134
FERC ¶ 61,187, order on reh’g and clarification,
Order No. 745–A, 137 FERC ¶ 61,215 (2011), reh’g
denied, Order No. 745–B, 138 FERC ¶ 61,148
(2012), vacated sub nom. Elec. Power Supply Ass’n
v. FERC, 753 F.3d 216 (D.C. Cir. 2014), rev’d &
remanded sub nom. FERC v. Elec. Power Supply
Ass’n, 136 S. Ct. 760 (2016) (EPSA).
14 EPSA, 136 S. Ct. at 773–82.
7 Id.
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B. Participation in RTO/ISO Markets of
Other Resources Located on the
Distribution System or Behind a Retail
Meter
6. Since EPSA, the Commission and
the U.S. Court of Appeals for the D.C.
Circuit (D.C. Circuit) have addressed the
Commission’s jurisdiction over the
participation in RTO/ISO markets of
other types of demand-side resources
and resources located on the
distribution system or behind a retail
customer meter. In those proceedings,
the Commission has declined requests
for states or RERRAs to determine the
eligibility of these resources to
participate in RTO/ISO markets.
1. Energy Efficiency Resources
7. In Advanced Energy Economy, the
Commission determined that it has
exclusive jurisdiction to regulate the
participation of energy efficiency
resources in RTO/ISO markets as a
practice directly affecting wholesale
markets, rates, and prices.15
Consequently, the Commission found
that a RERRA may not bar, restrict, or
otherwise condition the participation of
energy efficiency resources in RTO/ISO
markets unless the Commission
expressly gives RERRAs such
authority.16 The Commission further
found that any incidental effects on the
retail markets from energy efficiency
resource participation in wholesale
markets are not substantial, including
the effects on a load-serving entity’s
day-to-day operations.17 The
Commission also found that the
potential for increasing competition
faced by retail utility programs or
concerns with double counting are not
sufficient justifications for barring
certain types of resources from the
market.18
8. On rehearing, the Commission
found that a provision directly
restricting retail customers’
participation in organized wholesale
markets, even if contained in the terms
of retail service, nonetheless intrudes on
the Commission’s jurisdiction over
those markets and prevents the
Commission from carrying out its
statutory authority to ensure that
wholesale electricity markets produce
just and reasonable rates.19 The
15 161 FERC ¶ 61,245, at PP 60–61 (2017) (AEE
Declaratory Order), order on reh’g, 163 FERC
¶ 61,030 (2018) (AEE Rehearing Order).
16 Id. P 61.
17 Id. P 63.
18 Id. P 64.
19 AEE Rehearing Order, 163 FERC ¶ 61,030 at P
37 (citing Oneok, Inc. v. Learjet, Inc., 135 S. Ct.
1591, 1600 (2015) (finding that the proper test for
determining whether a state action is preempted is
‘‘whether the challenged measures are ‘aimed
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broadly prohibiting all retail customers
from participating in RTO/ISO markets,
even if contained in the terms of retail
service, is aimed directly at RTO/ISO
markets and would intrude on the
Commission’s jurisdiction over those
markets.26
11. The Commission declined to
exercise its discretion to grant an optout, finding that the benefits of allowing
electric storage resources broader access
to wholesale markets outweighed any
policy considerations in favor of an optout.27 The Commission explained that it
2. Electric Storage Resources
considered effects on the distribution
9. In Order No. 841,22 the Commission system in reaching this decision.28
The Commission disagreed that its
adopted regulations to remove barriers
decision not to exercise its discretion
to the participation of electric storage
and adopt an opt-out in Order No. 841
resources in RTO/ISO markets. The
was an unexplained departure from the
Commission denied a request that the
Demand Response Opt-Out adopted in
Commission allow states to decide
Order No. 719. The Commission stated
whether electric storage resources in
that Order No. 719 expressly provided
their state that are located behind a
that the Demand Response Opt-Out only
retail meter or on the distribution
applies to demand response resources;
system are permitted to participate in
that the resources at issue in Order No.
RTO/ISO markets.23
841 differed significantly from the
10. In Order No. 841–A, the
demand response resources at issue in
Commission found that the FPA and
Order No. 719, i.e., that unlike demand
relevant precedent did not legally
compel the Commission to adopt an opt- response resources, electric storage
resources are capable of engaging in
out with respect to participation in
sales for resale of electricity; and that,
RTO/ISO markets by electric storage
unlike in the case of demand response
resources interconnected on a
resources, RERRAs and distribution
distribution system or located behind a
utilities do not have a longstanding
retail meter.24 The Commission also
history of managing and regulating
maintained that the Court’s
programs for electric storage resources
jurisdictional conclusion in EPSA did
within their boundaries.29
not rest upon the fact that states were
12. In NARUC, the D.C. Circuit
granted the Demand Response Optupheld the Commission’s decision in
Out.25 The Commission disagreed that
Order Nos. 841 and 841–A not to
states could dictate whether resources
provide a RERRA opt-out with respect
are allowed to participate in RTO/ISO
to the RTO/ISO market participation of
markets through conditions on the
electric storage resources located behind
receipt of retail service. While
a retail meter or on the distribution
acknowledging that states can include
system.30 The D.C. Circuit concluded
conditions in their own retail programs
that the Commission’s prohibition of
that prohibit any participating resources state-imposed participation bans
from also selling into RTO/ISO markets, directly affected wholesale rates because
the Commission found that a condition
Order No. 841 solely targeted the
manner in which an electric storage
directly at interstate purchasers and wholesalers for
resale’ or not’’) (Oneok) (quoting N. Natural Gas Co. resource may participate in RTO/ISO
markets.31 The court then found that
v. State Corp. Comm’n of Kan., 372 U.S. 84, 94
(1963)); Nantahala Power & Light Co. v. Thornburg,
Order No. 841 did not directly regulate
476 U.S. 953, 970 (1986) (finding that ‘‘a State may
states’ distribution systems and did not
not exercise its undoubted jurisdiction over retail
‘‘ ‘usurp[ ] state power.’ ’’ 32
sales to prevent the wholesaler-as-seller from
Furthermore,
the D.C. Circuit explained,
recovering the costs of paying the FERC-approved
rate’’)).
the Commission’s statement in Order
20 Id. P 38.
No. 841–A that states may not block
21 Id. (citing Hughes v. Talen Energy Mktg., LLC,
RTO/ISO market participation
136 S. Ct. 1288, 1298 (2016)).
‘‘ ‘through conditions on the receipt of
22
Commission also disagreed that RERRAs
have the authority to prevent energy
efficiency resources from participating
in RTO/ISO markets because of
RERRAs’ concerns about such
participation, such as the potential
impacts on retail load forecasting.20 The
Commission reasoned that, even if a
RERRA seeks legitimate ends, it still
may not seek to achieve such ends
through regulatory means that intrude
upon the Commission’s authority over
wholesale rates.21
Electric Storage Participation in Markets
Operated by Regional Transmission Organizations
and Independent System Operators, Order No. 841,
162 FERC ¶ 61,127 (2018), order on reh’g, Order No.
841–A, 167 FERC ¶ 61,154 (2019), aff’d sub nom.
Nat’l Ass’n of Regulatory Util. Comm’rs v. FERC,
964 F.3d 1177 (D.C. Cir. 2020) (NARUC).
23 Id. P 35.
24 Order No. 841–A, 167 FERC ¶ 61,154 at P 32.
25 Id. P 40.
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26 Id.
27 Id.
P 41 (emphasis in original).
P 56.
28 Id.
29 Id.
PP 50–52.
F.3d at 1186–89.
31 Id. at 1186.
32 Id. at 1187; id. at 1188 (quoting EPSA, 136 S.
Ct. at 777).
30 964
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retail service,’ ’’ or impose any
‘‘ ‘condition[ ] aimed directly at the
RTO/ISO markets, even if contained in
the terms of retail service,’ ’’ was simply
a restatement of the well-established
principles of federal preemption.33
13. The D.C. Circuit next concluded
that the Commission’s decision not to
adopt a state opt-out was adequately
explained.34 The D.C. Circuit explained
that the Commission addressed
concerns that states may bear additional
administrative burdens associated with
enabling the participation of energy
storage resources in RTO/ISO markets,
but the Commission decided that such
negative effects were outweighed by the
benefits of the final rule.35 The D.C.
Circuit further noted that, in not
adopting the opt-out, the Commission
was ‘‘acutely aware’’ of the Demand
Response Opt-Out in Order No. 719.36
The court stated that the Supreme Court
described the Demand Response OptOut in EPSA as ‘‘cooperative
federalism,’’ demonstrating the
Commission’s ‘‘recognition of the
linkage between wholesale and retail
markets and the [s]tates’ role in
overseeing retail sales.’’ 37 The D.C.
Circuit also agreed with the Commission
that EPSA did not condition its holdings
on the existence of the Demand
Response Opt-Out.38
3. Distributed Energy Resource
Aggregations
14. Subsequently, in Order No.
2222,39 the Commission adopted
regulations to remove barriers to the
participation of distributed energy
resource aggregations in RTO/ISO
markets. The Commission declined to
include a mechanism for all RERRAs to
prohibit all distributed energy resources
from participating in RTO/ISO markets
through distributed energy resource
aggregations (i.e., an opt-out).40 The
Commission stated that the final rule
‘‘ ‘addresses—and addresses only—
transactions occurring on the wholesale
market.’’ 41 The Commission thus found
that the FPA and relevant precedent
33 Id. at 1187 (quoting Order No. 841–A, 167
FERC ¶ 61,154 at P 41) (emphasis in original).
34 Id. at 1189.
35 Id. at 1190.
36 Id.
37 Id. at 1189–90 (quoting EPSA, 136 S. Ct. at
779–80) (internal quotation marks omitted).
38 Id.
39 Participation of Distributed Energy Resource
Aggregations in Markets Operated by Regional
Transmission Organizations and Independent
System Operators, Order No. 2222, 85 FR 67094
(Oct. 21, 2020), 172 FERC ¶ 61,247 (2020),
corrected, 85 FR 68450 (Oct. 29, 2020), order on
reh’g, Order No. 2222–A, 174 FERC ¶ 61,197 (2021).
40 Id. P 56.
41 Id. P 58 (quoting EPSA, 136 S. Ct. at 776).
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does not legally compel the Commission
to adopt an opt-out with respect to
participation in RTO/ISO markets by all
resources interconnected on a
distribution system or located behind a
retail meter.42 The Commission found
that the benefits of allowing distributed
energy resource aggregators broader
access to the RTO/ISO market outweigh
the policy considerations in favor of an
opt-out.43 The Commission explained
that it was not persuaded that concerns
about potential effects on the
distribution system justify adopting an
opt-out that could substantially limit
that participation.44
15. The Commission also explained
that because demand response falls
under the definition of distributed
energy resource, an aggregator of
demand response could participate as a
distributed energy resource aggregator
in RTO/ISO markets.45 However, the
Commission clarified that the final rule
did not affect existing demand response
rules.46 The Commission explained that
the final rule did not affect the ability
of RERRAs to prohibit retail customers’
demand response from being bid into
RTO/ISO markets by aggregators,
consistent with the Demand Response
Opt-Out established in Order No. 719.47
16. In Order No. 2222–A, issued
concurrently with this NOI, the
Commission sets aside in part the
conclusion that the participation of
demand response in distributed energy
resource aggregations is subject to the
opt-out requirements of Order Nos. 719
and 719–A.48 The Commission declines
to extend this opt-out to demand
response resources that participate in
heterogeneous distributed energy
resource aggregations—i.e., those that
are made up of different types of
resources including demand response as
opposed to those made up entirely of
demand response. The Commission
finds that the Demand Response OptOut will continue to apply to
aggregations made up solely of resources
that participate as demand response
resources, consistent with the
Commission’s regulations.49 The
Commission finds that heterogeneous
distributed energy resource aggregations
42 Id.
43 Id.
P 60.
In Order No. 2222, the Commission
recognized the potentially greater burden on small
utility systems, and exercised its discretion to
include an opt-in mechanism for small utilities
similar to that provided in Order No. 719–A. See
id. P 64.
45 Id. P 118.
46 Id.
47 Id. P 59 (citing Order No. 719, 125 FERC
¶ 61,071 at PP 154–55).
48 Order No. 2222–A, 174 FERC ¶ 61,197 at P 22.
49 Id.
44 Id.
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that include demand response resources
do not fall squarely within the Demand
Response Opt-Out, as set forth in the
Commission’s regulations, because they
are not solely aggregations of retail
customers.50 The Commission finds that
extending the opt-out to demand
response resources in heterogeneous
distributed energy resource aggregations
would undermine the potential of Order
No. 2222 to break down barriers to
competition, interfering with the
Commission’s responsibility to ensure
that wholesale rates are just and
reasonable.51 The Commission also
states that applying the Demand
Response Opt-Out to aggregations that
contain a combination of demand
response and other types of distributed
energy resources could prevent
distributed energy resource aggregators
from incorporating the complementary
capabilities of existing and future
demand response technologies.52
C. Voltus v. MISO Complaint
17. On October 20, 2020, Voltus, Inc.
(Voltus) filed a complaint arguing that
the Demand Response Opt-Out
provisions in Midcontinent
Independent System Operator, Inc.’s
(MISO) tariff are inconsistent with the
jurisdictional provisions of the FPA and
are not just and reasonable.53 Voltus
also requested that the Commission
issue a notice of proposed rulemaking to
repeal the Demand Response Opt-Out.54
II. Discussion
18. In this proceeding, we seek to
examine whether changing
circumstances warrant revising the
Commission’s regulations providing for
the Demand Response Opt-Out
50 Id. P 23 n.70 (citing 18 CFR 35.28(g)(1)(iii)
(expressly limiting the application of the Order No.
719 opt-out to ‘‘an aggregator of retail customers
that aggregates the demand response of the
customers of utilities’’); 18 CFR 35.28(b)(10), (g)(12)
(requiring RTOs/ISOs to establish market rules
applicable to entities that aggregate one or more
resources located on the distribution system, any
subsystem thereof or behind a customer meter);
Order No. 2222, 172 FERC ¶ 61,247 at P 114
(finding that distributed energy resources may
include, but are not limited to, resources that are
in front of and behind the customer meter, electric
storage resources, intermittent generation,
distributed generation, demand response, energy
efficiency, thermal storage, and electric vehicles
and their supply equipment)).
51 Id. P 23; see also id. (concluding that extending
the Order No. 719 opt-out to demand response
resources that seek to participate in heterogeneous
distributed energy resource aggregations would
undermine the ability of such aggregations to take
advantage of different resources’ operational
attributes and complementary capabilities).
52 Id. P 26.
53 Voltus, Complaint, Docket No. EL21–12–000, at
1 (filed Oct. 20, 2020); see MISO, FERC Electric
Tariff, Module C, 38.6.A.iii.1(a) (34.0.0).
54 Complaint at 2. The Complaint is pending.
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established in Order Nos. 719 and 719–
A, and more specifically, whether RTO/
ISO markets would significantly benefit
from the increased participation of
aggregated demand response resources
that are currently barred by RERRAs
exercising the Demand Response OptOut.
19. Over a decade ago, the
Commission required RTOs/ISOs to
amend their market rules as necessary to
permit ARCs to bid demand response on
behalf of retail customers directly into
RTO/ISO markets, subject to the
Demand Response Opt-Out. The
Commission found that permitting ARC
participation in RTO/ISO markets
would increase competition, help
reduce prices to consumers, and
enhance reliability.55 In support of its
decision, the Commission stated that its
intent was not to interfere with the
operation of successful retail demand
response programs, place an undue
burden on state and local retail
regulatory entities, or raise new
jurisdictional concerns.56 The
Commission found that its decision
properly balanced the interests and
concerns of state and local regulatory
authorities with the Commission’s goal
of removing barriers to the development
of demand response resources in RTO/
ISO markets.57
20. Since the issuance of Order No.
719, there have been significant legal,
policy, and technological developments
that may warrant reconsideration of the
Demand Response Opt-Out. The
Commission has subsequently issued
rules relating to other types of demandside resources and resources located on
the distribution system or behind a
retail customer meter. In those
proceedings, the Commission has
consistently declined to adopt a
mechanism similar to the Demand
Response Opt-Out.58 In so doing, the
Commission has explained that the
benefits of allowing electric storage
resources and distributed energy
resource aggregations broader access to
RTO/ISO markets outweighed any
policy considerations in favor of an optout.59 Further, there have been
55 Order
No. 719, 125 FERC ¶ 61,071 at P 154;
Order No. 719–A, 128 FERC ¶ 61,059 at P 65.
56 Order No. 719, 125 FERC ¶ 61,071 at P 155;
Order No. 719–A, 128 FERC ¶ 61,059 at PP 49, 54,
56–57, 67.
57 Order No. 719, 125 FERC ¶ 61,071 at P 156.
58 E.g., AEE Declaratory Order, 161 FERC ¶ 61,245
at P 57 (finding that RERRAs may not bar the
participation of energy efficiency resources in
wholesale markets unless the Commission gives
RERRAs such authority, and declining to opine on
the requirements the Commission would impose in
the event that a RERRA requests such authority).
59 Order No. 841–A, 167 FERC ¶ 61,154 at P 56;
Order No. 2222, 172 FERC ¶ 61,247 at P 60.
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significant improvements in the
technology that ARCs offer to retail
customers, including instant
communication of dispatches, real-time
visibility and control of load
curtailment, immediate settlement of
dispatch performance, and automated
financial transactions between markets
and customers, in part due to the
proliferation of broadband, high-speed
wireless communication.60 More
broadly, the adoption of emerging
consumer technologies, such as smart
thermostats, electric water heaters and
smart meters, now allows for load to be
managed through geographicallytargeted demand reductions, load
building and system balancing.61
Through the use of state-of-the-art
sensors and controls, grid-interactive
efficient buildings 62 can reduce 10–
20% of commercial building peak
load.63
21. Accordingly, we are exploring
whether to revise the Commission’s
regulations to remove the Demand
Response Opt-Out, recognizing that the
Commission, when it established the
Demand Response Opt-Out, balanced
the interests and concerns of state and
local regulatory authorities with the
Commission’s goal of removing barriers
to demand response resource
participation in RTO/ISO markets.
Circumstances may have changed in the
years since the issuance of Order Nos.
719 and 719–A, such that the balance
reflected in those orders adopting the
Demand Response Opt-Out may have
shifted and the RTO/ISO market rules
reflecting the Demand Response OptOut may no longer be just and
reasonable. For example, we note that,
in its complaint, Voltus alleges that the
Demand Response Opt-Out has become
a barrier to competition. Specifically,
Voltus argues that the Demand
Response Opt-Out: (1) Makes
gatekeepers of utilities that lack the
correct incentives to maximize the
contribution of demand response to
market value; (2) disconnects customers
and market prices; (3) blocks
innovation; and (4) results in a costly
60 See Voltus, Complaint, Exhibit B (Testimony of
Gregg Dixon) at 4–7.
61 The Brattle Group, The National Potential for
Load Flexibility 1 (June 2019), https://
brattlefiles.blob.core.windows.net/files/16639_
national_potential_for_load_flexibility_-_final.pdf.
62 Grid-interactive efficient buildings are energy
efficient buildings with smart technologies
characterized by the active use of distributed energy
resources to optimize energy use for grid services,
occupant needs and preferences, and cost
reductions in a continuous and integrated way. U.S.
Department of Energy, Grid-interactive Efficient
Buildings 20 (April 2019), https://www.energy.gov/
sites/prod/files/2019/04/f61/bto-geb_overview4.15.19.pdf.
63 Id. at 10–11.
PO 00000
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15937
patchwork of program requirements and
incentives.64 Voltus also alleges that the
absence of demand response
competition contributes to threats to
reliability in MISO.65 Through the
questions below, we seek information to
help us examine the potential costs/
burdens and benefits, both quantitative
and qualitative, of removing the
Demand Response Opt-Out, as well as
other changes relating to demand
response since the Commission issued
Order Nos. 719 and 719–A. We are not
seeking comment on the Small Utility
Opt-In.
22. We invite interested persons to
submit comments on the following
questions, and we encourage
commenters to provide specific
examples and refer to recent, relevant
studies or data, as necessary.
Commenters need not answer every
question below.
A. Questions Regarding Changed
Circumstances Relevant to the Demand
Response Opt-Out Since Issuance of
Order Nos. 719 and 719–A
23. First, we seek comment on
whether and how circumstances have
changed since the Commission
established the Demand Response OptOut in Order Nos. 719 and 719–A.
(Q1) To what extent have the type and
capabilities of demand response
technologies and aggregations available
to parties seeking to participate in RTO/
ISO markets changed since 2009? 66
(Q2) To what extent have advances in
communications, controls, and
information technology created new
demand response capabilities available
to parties seeking to participate in RTO/
ISO markets since 2009?
(a) For example, what impact, if any,
has broader deployment of advanced
metering infrastructure (AMI) had on
the availability and utilization of
demand response for aggregators
seeking to participate in RTO/ISO
markets?
(b) Has experience with RTO/ISO
deployment of demand response
resources demonstrated any system64 Voltus,
Complaint at 58–59.
at 64. We also acknowledge that parties in
that proceeding opposed these arguments. For
example, Organization of MISO States argues that
Order No. 719 and MISO’s tariff provisions
implementing it remain just and reasonable.
Organization of MISO States, Inc., Motion to
Dismiss Complaint and Protest, Docket No. EL21–
12–000, at 14 (filed Nov. 19, 2020); see also
Midwest TDUs, Motion to Intervene, Protest, and
Motion to Dismiss, Docket No. EL21–12–000, at 13
(filed Nov. 19, 2020) (arguing that Voltus does not
demonstrate that MISO has concluded that its
reliability is at risk unless states rescind their Order
No. 719 Demand Response Opt-Out).
66 In 2009, the Commission issued Order No. 719–
A.
65 Id.
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wide value or operational benefits that
accrue, more efficiently and effectively,
via RTO/ISO dispatch through
aggregators than would be available
otherwise?
(Q3) To what extent have changes in
the resource mix since 2009 increased
the need for aggregations of demand
response in RTO/ISO markets,
particularly demand response that can
respond to operator instructions in real
time? Have impacts of these trends been
different in states that have adopted the
Demand Response Opt-Out?
(Q4) The North American Electric
Reliability Corporation (NERC) has
stated that demand response provides
transmission system operators with
additional system-balancing tools to
maintain bulk-power system
reliability.67 NERC has also stated that,
as the resource mix changes, flexible
resources that can be called upon on
short notice, including demand
response, are needed to ensure resource
adequacy and meet ramping needs.68 To
what extent can demand response
aggregations provide real-time balancing
and essential grid services, such as
frequency response and ramping
capability, to support bulk-power
system operations? Are third-party
demand response aggregators equally
able to provide real-time balancing and
essential grid services, or are utilityoperated programs better suited to
provide them? Are transmission system
operators better able to leverage these
capabilities given developments in
technology and infrastructure since
2009?
B. Questions Regarding Potential
Benefits of Removing the Demand
Response Opt-Out
24. We seek comment on the potential
benefits of revising our regulations to
remove the Demand Response Opt-Out.
We also seek comment on reasons why
the balance between the Commission’s
goal of removing barriers to the
development of demand response
resources in RTO/ISO markets and the
interests and concerns of state and local
regulatory authorities may have shifted
such that the market rules reflecting the
Demand Response Opt-Out may no
longer be just and reasonable.
67 North American Electric Reliability
Corporation, Essential Reliability Services Task
Force Measures Framework Report 63 (Nov. 2015),
https://www.nerc.com/comm/Other/
essntlrlbltysrvcstskfrcDL/
ERSTF%20Framework%20Report%20%20Final.pdf.
68 North American Electric Reliability
Corporation, 2020 State of Reliability 49 (July 2020),
https://www.nerc.com/pa/RAPA/PA/
Performance%20Analysis%20DL/NERC_SOR_
2020.pdf.
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(Q5) What are the potential benefits of
removing the Demand Response OptOut, including any benefits not
considered by the Commission in Order
Nos. 719 and 719–A, and considering
any changed circumstances that may be
relevant? Please note if such benefits
were not previously highlighted in
Order Nos. 719 and 719–A.69 Please
provide quantitative estimates, if
possible. In addition, please describe
the types of entities to which any
benefits would accrue.
(Q6) What are the potential benefits of
creating more consistency between the
participation models for ARCs and
distributed energy resource aggregators
by removing the Demand Response OptOut? In light of market participation
opportunities for energy efficiency
resources, electric storage resources, and
distributed energy resource
aggregations, would eliminating the
Demand Response Opt-Out established
in Order Nos. 719 and 719–A enhance
clarity for market participants and
prevent disputes regarding the
eligibility of resource aggregations to
participate in wholesale markets?
(Q7) Is there any evidence to suggest
that removing the Demand Response
Opt-Out would result in additional
demand response resources
participating through aggregations in
RTO/ISO markets? Similarly, is there
any evidence to suggest that removing
the Demand Response Opt-Out would
result in additional demand response
services or flexibility to address system
needs? If so, are there ways to quantify
these benefits to RTO/ISO markets? Do
the benefits of permitting increased
third-party demand response
aggregations in RTO/ISO markets
exceed those provided by utilities
bidding demand response into such
markets?
(Q8) Is there any other evidence to
suggest that RTO/ISO market rules
reflecting the Demand Response OptOut are no longer just and reasonable?
C. Questions Regarding Potential
Resulting Burdens From Removing the
Demand Response Opt-Out
25. We also seek comment on the
potential resulting burdens from
removing the Demand Response OptOut based on experience gained since
2009. In Order No. 719, the Commission
described the various concerns
commenters expressed about the
Commission’s proposed Demand
Response Opt-Out. Commenters alleged
that the proposed Demand Response
Opt-Out would place the burden on
local authorities to take action to
disallow participation of ARCs in RTO/
ISO markets. Another commenter
argued that, under the Commission’s
proposal, ARCs would effectively be
allowed to cherry-pick the best load
response resources out of existing loadserving entity demand response
programs, depriving those load-serving
entities of important resources used to
keep rates down for all consumers.70
The Commission explained its decision
to establish the Demand Response OptOut in part by stating that it did not seek
to interfere with the operation of
successful retail demand response
programs or place an undue burden on
state and local retail regulatory
authorities.71
(Q9) To what extent has the Demand
Response Opt-Out prevented
interference with the operation of
existing retail demand response
programs, or avoided placing an undue
burden on state and local retail
regulatory entities, as noted in Order
No. 719?
(Q10) What potential costs and
burdens might result from removing the
Demand Response Opt-Out, considering
any of the changed circumstances
explored above? Please note any
burdens that were not previously
mentioned in Order Nos. 719 and 719–
A. Please provide quantitative estimates,
if possible.
(Q11) Are there any downsides to
increased participation of aggregators of
demand response in RTO/ISO markets
from states currently exercising the
Demand Response Opt-Out that may
warrant the Commission’s
consideration? If so, please describe the
potential downsides and the types of
entities that would bear these burdens.
(Q12) Is there a significant difference
between any costs and burdens from
complying with Order No. 2222 and
those that might result from removal of
the Demand Response Opt-Out? If so,
why would removal of the Demand
Response Opt-Out create more costs and
burdens?
III. Comment Procedures
26. The Commission invites interested
persons to submit comments on the
matters and issues proposed in this
notice, including any related matters or
alternative proposals that commenters
may wish to discuss. Comments are due
June 23, 2021 and Reply Comments are
due July 23, 2021. Comments must refer
to Docket No. RM21–14–000 and must
include the commenter’s name, the
70 Order
No. 719, 125 FERC ¶ 61,071 at PP 139,
141.
69 See
PO 00000
supra PP 4, 19.
Frm 00062
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71 See
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Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Notices
organization they represent, if
applicable, and their address.
27. The Commission encourages
comments to be filed electronically via
the eFiling link on the Commission’s
website at https://www.ferc.gov. The
Commission accepts most standard
word-processing formats. Documents
created electronically using wordprocessing software should be filed in
native applications or print-to-PDF
format and not in a scanned format.
Commenters filing electronically do not
need to make a paper filing.
28. Those unable to file electronically
may mail comments via the U.S. Postal
Service to: Federal Energy Regulatory
Commission, Secretary of the
Commission, 888 First Street NE,
Washington, DC 20426. Hand-delivered
comments or comments sent via any
other carrier should be delivered to:
Federal Energy Regulatory Commission,
12225 Wilkins Avenue, Rockville, MD
20852.
29. All comments will be placed in
the Commission’s public files and may
be viewed, printed, or downloaded
remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
IV. Document Availability
30. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the internet through the
Commission’s Home Page (https://
www.ferc.gov). At this time, the
Commission has suspended access to
the Commission’s Public Reference
Room due to the President’s March 13,
2020 proclamation declaring a National
Emergency concerning the Novel
Coronavirus Disease (COVID–19).
31. From the Commission’s Home
Page on the internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.
To access this document in eLibrary,
type the docket number excluding the
last three digits of this document in the
docket number field.
32. User assistance is available for
eLibrary and the Commission’s website
during normal business hours from the
Commission’s Online Support at 202–
502–6652 (toll free at 1–866–208–3676)
or email at ferconlinesupport@ferc.gov,
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
public.referenceroom@ferc.gov.
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By direction of the Commission.
Commissioner Danly is concurring a
separate statement attached.
Commissioner Christie is dissenting
with a separate statement attached.
Issued: March 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
United States of America
Federal Energy Regulatory Commission
Participation of Aggregators of Retail
Demand Response Customers in
Markets Operated by Regional
Transmission Organizations and
Independent System Operators—
Docket No. RM21–14–000
DANLY, Commissioner, concurring:
1. I disagree that we should eliminate
the Commission’s rule establishing
states’ rights to opt out of wholesale
demand response aggregation
programs.1 The Commission, however,
always has the discretion to issue a
Notice of Inquiry (NOI) on any topic
within its purview. I therefore concur in
the issuance of the NOI but oppose the
measures it anticipates.
2. It is my understanding that
eighteen states have opted out 2 of the
Commission’s demand response
aggregation mandate in Order No. 719.3
Any Commission action to now revoke
the states’ authority to opt-out would
thus do significant violence to the
statutory and regulatory regimes these
eighteen states have enacted, in addition
to the harm it would cause to the longestablished division between federal
and state regulation of electricity.4
3. I invite these states and any other
parties interested in preserving the
traditional and current role of the states
in exercising jurisdiction over retail
electricity and distribution systems,
including oversight over demand
response programs, to respond to the
NOI and provide appropriate record
evidence.
4. Some of the most important
evidence I would like to see submitted
concerns whether wholesale demand
1 See
18 CFR 35.28(g)(1)(iii) (2020).
states are Arkansas, Iowa, Indiana, Kansas,
Kentucky, Louisiana, Michigan, Minnesota,
Missouri, Mississippi, Montana, North Carolina,
North Dakota, Nebraska, New Mexico, Oklahoma,
South Dakota, and Wisconsin.
3 Wholesale Competition in Regions with
Organized Electric Markets, Order No. 719, 125
FERC ¶ 61,071 (2008), order on reh’g, Order No.
719–A, 128 FERC ¶ 61,059, reh’g denied, Order No.
719–B, 129 FERC ¶ 61,252 (2009).
4 I discuss these jurisdictional issues in my
dissent today to Order No. 2222–A. See
Participation of Distributed Energy Res.
Aggregations in Mkts. Operated by Reg’l
Transmission Orgs. and Indep. Sys. Operators,
Order No. 2222–A, 174 FERC ¶ 61,197 (2021)
(Danly, Comm’r, dissenting).
2 The
PO 00000
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15939
response aggregation programs are
providing reliability benefits
commensurate with their costs. Before
we force everyone to join them, we
ought to see if they work. We often see
statistics of the quantity of resources
that participate or join wholesale
demand response programs. We rarely
see statistics that quantify the actual
performance of these demand response
resources during critical events.
5. Anecdotal evidence suggests their
performance during times of strain may
be poor, and perhaps terrible.
Commission staff reviewed preliminary
analyses in response to the 2020
California reliability crisis and observed
that dispatched ‘‘Proxy Demand
Response’’ in CAISO had 50%
availability over the six days of the 2020
California reliability crisis, while
dispatched ‘‘Reliability Demand
Response Resources’’ had 71%
availability.5 The Commission staff
further observed that ‘‘while [Proxy
Demand Response] has been regularly
dispatched, its performance varies
dramatically,’’ and that for Reliability
Demand Response Resources, ‘‘[t]here
are neither established performance
metrics nor comparable historical data
to evaluate’’ its performance.6 It would
be an unacceptable failure of regulatory
oversight if we do not have basic
performance metrics for demand
response given that these wholesale
programs have been authorized for over
a decade—and that customers have been
paying for them all the while.
6. I welcome, indeed, encourage a
searching inquiry into how much
demand response actually contributes to
reliability during critical reliability
events. Ideally, comments would rest
upon detailed analyses of whether
demand response is worth both the
costs a resource saves when it does not
purchase energy (when demand
responds to requests to reduce
consumption) and the marginal price it
receives in payment. Again, these seem
like threshold questions before we
upend eighteen separate states’
regulatory regimes enacted to
accommodate the opt-out we currently
require but now may eliminate.
For these reasons, I respectfully
concur.
lllllllllllllllllllll
James P. Danly,
Commissioner.
5 See Preliminary Observations on the August
2020 California Heat Storm (AD21–3–000), FERC,
15–16 (Dec. 17, 2020), https://cms.ferc.gov/sites/
default/files/2020-12/California%20Heat%20Storm
%20Inquiry%20Presentation%2C%20December
%2017%2C%202020%20--%20Script.pdf.
6 Id.
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United States of America
Federal Energy Regulatory Commission
Participation of Aggregators of Retail
Demand Response Customers in
Markets Operated by Regional
Transmission Organizations and
Independent System Operators—
Docket No. RM21–14–000
CHRISTIE, Commissioner, dissenting:
1. As Bob Dylan said, you don’t need
a weatherman to know which way the
wind blows, and while styled as a
Notice of Inquiry (NOI), it is apparent
that this order’s end game is to repeal
or severely restrict the ‘‘opt-out’’
provisions of Order Nos. 719 and 719–
A.1
2. Since those orders were issued,
eighteen states have chosen to use the
opt-out provision.2 Presumably those
states made those decisions for reasons
that were consistent with their own
public policy needs and preferences.
FERC should respect those state policy
decisions; however, because those states
(and potentially others in the future)
have exercised their own policy choices,
the majority now seeks to block states
from making such choices.
3. I therefore dissent for the same
fundamental reasons expressed in my
dissent today to Order No. 2222–A: 3 At
a time when we hear many voices—
including some on this Commission—
demanding that FERC ‘respect’ state
public policies in RTO/ISO capacity
markets when it comes to the MOPR
cases, this order goes in the exact
opposite direction. We see in this NOI
another example that for some,
‘respecting’ state public policies only
applies when the states are doing what
they want.
4. I further note, as I discussed today
in my dissent to Order No. 2222–A, that
combined with that order this one
substantially raises the costs to states of
participating in RTOs/ISOs.4 Some
states not in RTOs/ISOs may well
choose to continue to stay out; those in
RTOs/ISOs may well choose to
reconsider their participation, if the cost
of participation is to be blocked by
FERC from exercising significant
1 See,
e.g, NOI at PP 2, 18, 20, 21, 24.
Participation of Distributed Energy Resource
Aggregations in Markets Operated by Regional
Transmission Organizations and Independent
System Operators, Order No. 2222, 85 FR 67094,
172 FERC ¶ 61,247, on reh’g, Order No. 2222–A,
174 FERC ¶ 61,197 (2021) (Danly, Comm’r,
dissenting at n. 2).
3 See Order No. 2222–A (Christie, Comm’r,
dissenting).
4 Id. at P 7. Technically speaking, states approve
participation by state-regulated utilities in RTOs/
ISOs.
2 See
VerDate Sep<11>2014
17:52 Mar 24, 2021
Jkt 253001
accordance with Attachment 1—
Performance Work Statement. Each
report shall cite the contract number,
identify the U.S. Environmental
lllllllllllllllllllll Protection Agency as the sponsoring
Mark C. Christie,
agency, and identify the name of the
Contractor preparing the report.
Commissioner.
[FR Doc. 2021–06106 Filed 3–24–21; 8:45 am]
This contract involves no
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subcontractors.
OPP has determined that the contract
described
in this notice involve work
ENVIRONMENTAL PROTECTION
that is being conducted in connection
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will be the subject of certain evaluations
to be made under this contract. These
Eastern Research Group, Inc.; Transfer
evaluations may be used in subsequent
of Data (March 2021)
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AGENCY: Environmental Protection
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Agency (EPA).
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SUMMARY: This notice announces that
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Insecticide, Fungicide, and Rodenticide Eastern Research Group, Inc. prohibits
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This action applies to the public in
Authority: 7 U.S.C. 136 et seq.; 21 U.S.C.
general. As such, the Agency has not
301 et seq.
attempted to describe all the specific
Dated: March 19, 2021.
entities that may be affected by this
Delores
Barber,
action.
portions of their historic powers over
the retail side of regulation.
For these reasons, I respectfully
dissent.
II. Contractor Requirements
Under these contract numbers, the
contractor will perform the following:
Under Contract No. 68HERC21D0007.
The Contractor shall prepare and deliver
reports, including plans, evaluations,
studies, analyses, and manuals in
PO 00000
Frm 00064
Fmt 4703
Sfmt 9990
Director, Information Technology and
Resources Management Division, Office of
Program Support.
[FR Doc. 2021–06173 Filed 3–24–21; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\25MRN1.SGM
25MRN1
]]>Agencies
[Federal Register Volume 86, Number 56 (Thursday, March 25, 2021)]
[Notices]
[Pages 15933-15940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06106]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. RM21-14-000]
Participation of Aggregators of Retail Demand Response Customers
in Markets Operated by Regional Transmission Organizations and
Independent System Operators
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of inquiry.
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SUMMARY: In this Notice of Inquiry, the Federal Energy Regulatory
Commission seeks comment on whether to revise its regulations that
require a Regional Transmission Organization or Independent System
Operator not to accept bids from an aggregator of retail customers that
aggregates the demand response of the customers of utilities that
distributed more than 4 million megawatt-hours in the previous fiscal
year, where the relevant electric retail
[[Page 15934]]
regulatory authority prohibits such customers' demand response to be
bid into organized markets by an aggregator of retail customers.
DATES: Initial Comments are due June 23, 2021, and Reply Comments are
due July 23, 2021.
ADDRESSES: Comments, identified by docket number, may be filed in the
following ways:
Electronic Filing through https://www.ferc.gov. Documents
created electronically using word processing software should be filed
in native applications or print-to-PDF format and not in a scanned
format.
Mail/Hand Delivery: Those unable to file electronically
may mail comments via the U.S. Postal Service to: Federal Energy
Regulatory Commission, Secretary of the Commission, 888 First Street
NE, Washington, DC 20426. Hand-delivered comments or comments sent via
any other carrier should be delivered to: Federal Energy Regulatory
Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
Instructions: For detailed instructions on submitting
comments, see the Comment Procedures Section of this document.
FOR FURTHER INFORMATION CONTACT:
Joseph Baumann (Technical Information), Office of Energy Policy and
Innovation, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426, (202) 502-8373
Christopher Chaulk (Legal Information), Office of the General Counsel--
Energy Markets, Federal Energy Regulatory Commission, 888 First Street
NE, Washington, DC 20426, (202) 502-6720
SUPPLEMENTARY INFORMATION:
1. In this Notice of Inquiry (NOI), the Federal Energy Regulatory
Commission (Commission) seeks comment on whether to revise its
regulations that require a Regional Transmission Organization (RTO) or
Independent System Operator (ISO) (RTO/ISO) not to accept bids from an
aggregator of retail customers (ARC) that aggregates the demand
response of the customers of utilities that distributed more than four
million megawatt-hours (MWh) in the previous fiscal year, where the
relevant electric retail regulatory authority (RERRA) prohibits such
customers' demand response to be bid into organized markets by an ARC
(Demand Response Opt-Out).\1\
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\1\ See 18 CFR 35.28(g)(1)(iii). The Commission is not seeking
comment on the portion of this regulatory text requiring the RTO/ISO
not to accept bids from an ARC that aggregates the demand response
of the customers of utilities that distributed four million MWh or
less in the previous fiscal year, unless the relevant electric
retail regulatory authority permits such customers' demand response
to be bid into organized markets by an ARC (Small Utility Opt-In).
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2. It has been over a decade since the Commission established the
Demand Response Opt-Out in Order Nos. 719 and 719-A.\2\ In that time,
there have been significant legal, policy, and technological
developments that may warrant reconsideration of the Demand Response
Opt-Out. In light of those developments and the records compiled in
various proceedings before the Commission, we seek comment on the
potential impacts of removing the Demand Response Opt-Out from the
Commission's regulations. We also seek comment on other changes
relating to demand response since the Commission established the Demand
Response Opt-Out.
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\2\ Wholesale Competition in Regions with Organized Electric
Markets, Order No. 719, 125 FERC ] 61,071 (2008), order on reh'g,
Order No. 719-A, 128 FERC ] 61,059, order on reh'g, Order No. 719-B,
129 FERC ] 61,252 (2009).
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I. Background
A. Final Rules on Demand Response Participation in Organized Wholesale
Electric Markets
3. As relevant here, in Order Nos. 719 and 719-A the Commission
directed each RTO/ISO to amend its market rules as necessary to: (1)
Accept bids from ARCs \3\ that aggregate the demand response of the
customers of utilities that distributed more than four million MWh in
the previous fiscal year; and (2) not accept bids from ARCs that
aggregate the demand response of the customers of utilities that
distributed more than four million MWh in the previous fiscal year,
where the RERRA prohibits such customers' demand response to be bid
into organized markets by an ARC (i.e., the Demand Response Opt-
Out).\4\ The Commission used a four million MWh cut-off to distinguish
small utilities, which the Commission addressed through additional
regulations.\5\ The Commission explained that the term RERRA meant the
entity that establishes the retail electric prices and any retail
competition policies for customers, such as the city council for a
municipal utility, the governing board of a cooperative utility, or the
state public utility commission.\6\
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\3\ The Commission stated that it would ``use the phrase
`aggregator of retail customers,' or ARC, to refer to an entity that
aggregates demand response bids (which are mostly from retail
loads).'' Id. P 3 n.3.
\4\ Order No. 719-A, 128 FERC ] 61,059 at P 60; see Order No.
719, 125 FERC ] 61,071 at P 154.
\5\ Order No. 719-A, 128 FERC ] 61,059 at PP 59-60.
\6\ Order No. 719, 125 FERC ] 61,071 at P 158.
---------------------------------------------------------------------------
4. The Commission found that allowing an ARC to act as an
intermediary for many small retail loads that cannot individually
participate in the organized markets would improve the competitiveness
of RTO/ISO markets to fulfill the Commission's statutory mandate to
ensure supplies of electric energy at just, reasonable, and not unduly
discriminatory or preferential rates.\7\ The Commission explained that
aggregating small retail customers into larger pools of resources would
expand the amount of resources available to the market, increase
competition, help reduce prices to consumers, and enhance
reliability.\8\ The Commission also stated that the proposal could
encourage the development of demand response programs and thus provide
retail customers more opportunities available through larger
markets.\9\ Moreover, the Commission noted that experiences with
existing aggregation programs in some RTOs/ISOs showed that these
programs had increased demand responsiveness in these regions.\10\ The
Commission stated that its intent was not to interfere with the
operation of successful retail demand response programs, place an undue
burden on state and local retail regulatory entities, or raise new
jurisdictional concerns.\11\ The Commission further found that this
action properly balanced the Commission's goal of removing barriers to
the development of demand response resources in the RTO/ISO markets
with the interests and concerns of state and local regulatory
authorities.\12\
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\7\ Id. P 1.
\8\ Id. P 154.
\9\ Id.
\10\ Id.
\11\ Id. P 155.
\12\ Id. P 156.
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5. Subsequently, in Order No. 745,\13\ the Commission adopted
revised regulations addressing compensation and cost allocation for
demand response in RTO/ISO energy markets. On appeal, in EPSA, the
United States Supreme Court upheld the Commission's jurisdiction over
the participation of demand response resources in RTO/ISO markets.\14\
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\13\ Demand Response Compensation in Organized Wholesale Energy
Markets, Order No. 745, 134 FERC ] 61,187, order on reh'g and
clarification, Order No. 745-A, 137 FERC ] 61,215 (2011), reh'g
denied, Order No. 745-B, 138 FERC ] 61,148 (2012), vacated sub nom.
Elec. Power Supply Ass'n v. FERC, 753 F.3d 216 (D.C. Cir. 2014),
rev'd & remanded sub nom. FERC v. Elec. Power Supply Ass'n, 136 S.
Ct. 760 (2016) (EPSA).
\14\ EPSA, 136 S. Ct. at 773-82.
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[[Page 15935]]
B. Participation in RTO/ISO Markets of Other Resources Located on the
Distribution System or Behind a Retail Meter
6. Since EPSA, the Commission and the U.S. Court of Appeals for the
D.C. Circuit (D.C. Circuit) have addressed the Commission's
jurisdiction over the participation in RTO/ISO markets of other types
of demand-side resources and resources located on the distribution
system or behind a retail customer meter. In those proceedings, the
Commission has declined requests for states or RERRAs to determine the
eligibility of these resources to participate in RTO/ISO markets.
1. Energy Efficiency Resources
7. In Advanced Energy Economy, the Commission determined that it
has exclusive jurisdiction to regulate the participation of energy
efficiency resources in RTO/ISO markets as a practice directly
affecting wholesale markets, rates, and prices.\15\ Consequently, the
Commission found that a RERRA may not bar, restrict, or otherwise
condition the participation of energy efficiency resources in RTO/ISO
markets unless the Commission expressly gives RERRAs such
authority.\16\ The Commission further found that any incidental effects
on the retail markets from energy efficiency resource participation in
wholesale markets are not substantial, including the effects on a load-
serving entity's day-to-day operations.\17\ The Commission also found
that the potential for increasing competition faced by retail utility
programs or concerns with double counting are not sufficient
justifications for barring certain types of resources from the
market.\18\
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\15\ 161 FERC ] 61,245, at PP 60-61 (2017) (AEE Declaratory
Order), order on reh'g, 163 FERC ] 61,030 (2018) (AEE Rehearing
Order).
\16\ Id. P 61.
\17\ Id. P 63.
\18\ Id. P 64.
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8. On rehearing, the Commission found that a provision directly
restricting retail customers' participation in organized wholesale
markets, even if contained in the terms of retail service, nonetheless
intrudes on the Commission's jurisdiction over those markets and
prevents the Commission from carrying out its statutory authority to
ensure that wholesale electricity markets produce just and reasonable
rates.\19\ The Commission also disagreed that RERRAs have the authority
to prevent energy efficiency resources from participating in RTO/ISO
markets because of RERRAs' concerns about such participation, such as
the potential impacts on retail load forecasting.\20\ The Commission
reasoned that, even if a RERRA seeks legitimate ends, it still may not
seek to achieve such ends through regulatory means that intrude upon
the Commission's authority over wholesale rates.\21\
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\19\ AEE Rehearing Order, 163 FERC ] 61,030 at P 37 (citing
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1600 (2015) (finding
that the proper test for determining whether a state action is
preempted is ``whether the challenged measures are `aimed directly
at interstate purchasers and wholesalers for resale' or not'')
(Oneok) (quoting N. Natural Gas Co. v. State Corp. Comm'n of Kan.,
372 U.S. 84, 94 (1963)); Nantahala Power & Light Co. v. Thornburg,
476 U.S. 953, 970 (1986) (finding that ``a State may not exercise
its undoubted jurisdiction over retail sales to prevent the
wholesaler-as-seller from recovering the costs of paying the FERC-
approved rate'')).
\20\ Id. P 38.
\21\ Id. (citing Hughes v. Talen Energy Mktg., LLC, 136 S. Ct.
1288, 1298 (2016)).
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2. Electric Storage Resources
9. In Order No. 841,\22\ the Commission adopted regulations to
remove barriers to the participation of electric storage resources in
RTO/ISO markets. The Commission denied a request that the Commission
allow states to decide whether electric storage resources in their
state that are located behind a retail meter or on the distribution
system are permitted to participate in RTO/ISO markets.\23\
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\22\ Electric Storage Participation in Markets Operated by
Regional Transmission Organizations and Independent System
Operators, Order No. 841, 162 FERC ] 61,127 (2018), order on reh'g,
Order No. 841-A, 167 FERC ] 61,154 (2019), aff'd sub nom. Nat'l
Ass'n of Regulatory Util. Comm'rs v. FERC, 964 F.3d 1177 (D.C. Cir.
2020) (NARUC).
\23\ Id. P 35.
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10. In Order No. 841-A, the Commission found that the FPA and
relevant precedent did not legally compel the Commission to adopt an
opt-out with respect to participation in RTO/ISO markets by electric
storage resources interconnected on a distribution system or located
behind a retail meter.\24\ The Commission also maintained that the
Court's jurisdictional conclusion in EPSA did not rest upon the fact
that states were granted the Demand Response Opt-Out.\25\ The
Commission disagreed that states could dictate whether resources are
allowed to participate in RTO/ISO markets through conditions on the
receipt of retail service. While acknowledging that states can include
conditions in their own retail programs that prohibit any participating
resources from also selling into RTO/ISO markets, the Commission found
that a condition broadly prohibiting all retail customers from
participating in RTO/ISO markets, even if contained in the terms of
retail service, is aimed directly at RTO/ISO markets and would intrude
on the Commission's jurisdiction over those markets.\26\
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\24\ Order No. 841-A, 167 FERC ] 61,154 at P 32.
\25\ Id. P 40.
\26\ Id. P 41 (emphasis in original).
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11. The Commission declined to exercise its discretion to grant an
opt-out, finding that the benefits of allowing electric storage
resources broader access to wholesale markets outweighed any policy
considerations in favor of an opt-out.\27\ The Commission explained
that it considered effects on the distribution system in reaching this
decision.\28\
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\27\ Id. P 56.
\28\ Id.
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The Commission disagreed that its decision not to exercise its
discretion and adopt an opt-out in Order No. 841 was an unexplained
departure from the Demand Response Opt-Out adopted in Order No. 719.
The Commission stated that Order No. 719 expressly provided that the
Demand Response Opt-Out only applies to demand response resources; that
the resources at issue in Order No. 841 differed significantly from the
demand response resources at issue in Order No. 719, i.e., that unlike
demand response resources, electric storage resources are capable of
engaging in sales for resale of electricity; and that, unlike in the
case of demand response resources, RERRAs and distribution utilities do
not have a longstanding history of managing and regulating programs for
electric storage resources within their boundaries.\29\
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\29\ Id. PP 50-52.
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12. In NARUC, the D.C. Circuit upheld the Commission's decision in
Order Nos. 841 and 841-A not to provide a RERRA opt-out with respect to
the RTO/ISO market participation of electric storage resources located
behind a retail meter or on the distribution system.\30\ The D.C.
Circuit concluded that the Commission's prohibition of state-imposed
participation bans directly affected wholesale rates because Order No.
841 solely targeted the manner in which an electric storage resource
may participate in RTO/ISO markets.\31\ The court then found that Order
No. 841 did not directly regulate states' distribution systems and did
not `` `usurp[ ] state power.' '' \32\ Furthermore, the D.C. Circuit
explained, the Commission's statement in Order No. 841-A that states
may not block RTO/ISO market participation `` `through conditions on
the receipt of
[[Page 15936]]
retail service,' '' or impose any `` `condition[ ] aimed directly at
the RTO/ISO markets, even if contained in the terms of retail service,'
'' was simply a restatement of the well-established principles of
federal preemption.\33\
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\30\ 964 F.3d at 1186-89.
\31\ Id. at 1186.
\32\ Id. at 1187; id. at 1188 (quoting EPSA, 136 S. Ct. at 777).
\33\ Id. at 1187 (quoting Order No. 841-A, 167 FERC ] 61,154 at
P 41) (emphasis in original).
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13. The D.C. Circuit next concluded that the Commission's decision
not to adopt a state opt-out was adequately explained.\34\ The D.C.
Circuit explained that the Commission addressed concerns that states
may bear additional administrative burdens associated with enabling the
participation of energy storage resources in RTO/ISO markets, but the
Commission decided that such negative effects were outweighed by the
benefits of the final rule.\35\ The D.C. Circuit further noted that, in
not adopting the opt-out, the Commission was ``acutely aware'' of the
Demand Response Opt-Out in Order No. 719.\36\ The court stated that the
Supreme Court described the Demand Response Opt-Out in EPSA as
``cooperative federalism,'' demonstrating the Commission's
``recognition of the linkage between wholesale and retail markets and
the [s]tates' role in overseeing retail sales.'' \37\ The D.C. Circuit
also agreed with the Commission that EPSA did not condition its
holdings on the existence of the Demand Response Opt-Out.\38\
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\34\ Id. at 1189.
\35\ Id. at 1190.
\36\ Id.
\37\ Id. at 1189-90 (quoting EPSA, 136 S. Ct. at 779-80)
(internal quotation marks omitted).
\38\ Id.
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3. Distributed Energy Resource Aggregations
14. Subsequently, in Order No. 2222,\39\ the Commission adopted
regulations to remove barriers to the participation of distributed
energy resource aggregations in RTO/ISO markets. The Commission
declined to include a mechanism for all RERRAs to prohibit all
distributed energy resources from participating in RTO/ISO markets
through distributed energy resource aggregations (i.e., an opt-
out).\40\ The Commission stated that the final rule `` `addresses--and
addresses only--transactions occurring on the wholesale market.'' \41\
The Commission thus found that the FPA and relevant precedent does not
legally compel the Commission to adopt an opt-out with respect to
participation in RTO/ISO markets by all resources interconnected on a
distribution system or located behind a retail meter.\42\ The
Commission found that the benefits of allowing distributed energy
resource aggregators broader access to the RTO/ISO market outweigh the
policy considerations in favor of an opt-out.\43\ The Commission
explained that it was not persuaded that concerns about potential
effects on the distribution system justify adopting an opt-out that
could substantially limit that participation.\44\
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\39\ Participation of Distributed Energy Resource Aggregations
in Markets Operated by Regional Transmission Organizations and
Independent System Operators, Order No. 2222, 85 FR 67094 (Oct. 21,
2020), 172 FERC ] 61,247 (2020), corrected, 85 FR 68450 (Oct. 29,
2020), order on reh'g, Order No. 2222-A, 174 FERC ] 61,197 (2021).
\40\ Id. P 56.
\41\ Id. P 58 (quoting EPSA, 136 S. Ct. at 776).
\42\ Id.
\43\ Id. P 60.
\44\ Id. In Order No. 2222, the Commission recognized the
potentially greater burden on small utility systems, and exercised
its discretion to include an opt-in mechanism for small utilities
similar to that provided in Order No. 719-A. See id. P 64.
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15. The Commission also explained that because demand response
falls under the definition of distributed energy resource, an
aggregator of demand response could participate as a distributed energy
resource aggregator in RTO/ISO markets.\45\ However, the Commission
clarified that the final rule did not affect existing demand response
rules.\46\ The Commission explained that the final rule did not affect
the ability of RERRAs to prohibit retail customers' demand response
from being bid into RTO/ISO markets by aggregators, consistent with the
Demand Response Opt-Out established in Order No. 719.\47\
---------------------------------------------------------------------------
\45\ Id. P 118.
\46\ Id.
\47\ Id. P 59 (citing Order No. 719, 125 FERC ] 61,071 at PP
154-55).
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16. In Order No. 2222-A, issued concurrently with this NOI, the
Commission sets aside in part the conclusion that the participation of
demand response in distributed energy resource aggregations is subject
to the opt-out requirements of Order Nos. 719 and 719-A.\48\ The
Commission declines to extend this opt-out to demand response resources
that participate in heterogeneous distributed energy resource
aggregations--i.e., those that are made up of different types of
resources including demand response as opposed to those made up
entirely of demand response. The Commission finds that the Demand
Response Opt-Out will continue to apply to aggregations made up solely
of resources that participate as demand response resources, consistent
with the Commission's regulations.\49\ The Commission finds that
heterogeneous distributed energy resource aggregations that include
demand response resources do not fall squarely within the Demand
Response Opt-Out, as set forth in the Commission's regulations, because
they are not solely aggregations of retail customers.\50\ The
Commission finds that extending the opt-out to demand response
resources in heterogeneous distributed energy resource aggregations
would undermine the potential of Order No. 2222 to break down barriers
to competition, interfering with the Commission's responsibility to
ensure that wholesale rates are just and reasonable.\51\ The Commission
also states that applying the Demand Response Opt-Out to aggregations
that contain a combination of demand response and other types of
distributed energy resources could prevent distributed energy resource
aggregators from incorporating the complementary capabilities of
existing and future demand response technologies.\52\
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\48\ Order No. 2222-A, 174 FERC ] 61,197 at P 22.
\49\ Id.
\50\ Id. P 23 n.70 (citing 18 CFR 35.28(g)(1)(iii) (expressly
limiting the application of the Order No. 719 opt-out to ``an
aggregator of retail customers that aggregates the demand response
of the customers of utilities''); 18 CFR 35.28(b)(10), (g)(12)
(requiring RTOs/ISOs to establish market rules applicable to
entities that aggregate one or more resources located on the
distribution system, any subsystem thereof or behind a customer
meter); Order No. 2222, 172 FERC ] 61,247 at P 114 (finding that
distributed energy resources may include, but are not limited to,
resources that are in front of and behind the customer meter,
electric storage resources, intermittent generation, distributed
generation, demand response, energy efficiency, thermal storage, and
electric vehicles and their supply equipment)).
\51\ Id. P 23; see also id. (concluding that extending the Order
No. 719 opt-out to demand response resources that seek to
participate in heterogeneous distributed energy resource
aggregations would undermine the ability of such aggregations to
take advantage of different resources' operational attributes and
complementary capabilities).
\52\ Id. P 26.
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C. Voltus v. MISO Complaint
17. On October 20, 2020, Voltus, Inc. (Voltus) filed a complaint
arguing that the Demand Response Opt-Out provisions in Midcontinent
Independent System Operator, Inc.'s (MISO) tariff are inconsistent with
the jurisdictional provisions of the FPA and are not just and
reasonable.\53\ Voltus also requested that the Commission issue a
notice of proposed rulemaking to repeal the Demand Response Opt-
Out.\54\
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\53\ Voltus, Complaint, Docket No. EL21-12-000, at 1 (filed Oct.
20, 2020); see MISO, FERC Electric Tariff, Module C, 38.6.A.iii.1(a)
(34.0.0).
\54\ Complaint at 2. The Complaint is pending.
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II. Discussion
18. In this proceeding, we seek to examine whether changing
circumstances warrant revising the Commission's regulations providing
for the Demand Response Opt-Out
[[Page 15937]]
established in Order Nos. 719 and 719-A, and more specifically, whether
RTO/ISO markets would significantly benefit from the increased
participation of aggregated demand response resources that are
currently barred by RERRAs exercising the Demand Response Opt-Out.
19. Over a decade ago, the Commission required RTOs/ISOs to amend
their market rules as necessary to permit ARCs to bid demand response
on behalf of retail customers directly into RTO/ISO markets, subject to
the Demand Response Opt-Out. The Commission found that permitting ARC
participation in RTO/ISO markets would increase competition, help
reduce prices to consumers, and enhance reliability.\55\ In support of
its decision, the Commission stated that its intent was not to
interfere with the operation of successful retail demand response
programs, place an undue burden on state and local retail regulatory
entities, or raise new jurisdictional concerns.\56\ The Commission
found that its decision properly balanced the interests and concerns of
state and local regulatory authorities with the Commission's goal of
removing barriers to the development of demand response resources in
RTO/ISO markets.\57\
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\55\ Order No. 719, 125 FERC ] 61,071 at P 154; Order No. 719-A,
128 FERC ] 61,059 at P 65.
\56\ Order No. 719, 125 FERC ] 61,071 at P 155; Order No. 719-A,
128 FERC ] 61,059 at PP 49, 54, 56-57, 67.
\57\ Order No. 719, 125 FERC ] 61,071 at P 156.
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20. Since the issuance of Order No. 719, there have been
significant legal, policy, and technological developments that may
warrant reconsideration of the Demand Response Opt-Out. The Commission
has subsequently issued rules relating to other types of demand-side
resources and resources located on the distribution system or behind a
retail customer meter. In those proceedings, the Commission has
consistently declined to adopt a mechanism similar to the Demand
Response Opt-Out.\58\ In so doing, the Commission has explained that
the benefits of allowing electric storage resources and distributed
energy resource aggregations broader access to RTO/ISO markets
outweighed any policy considerations in favor of an opt-out.\59\
Further, there have been significant improvements in the technology
that ARCs offer to retail customers, including instant communication of
dispatches, real-time visibility and control of load curtailment,
immediate settlement of dispatch performance, and automated financial
transactions between markets and customers, in part due to the
proliferation of broadband, high-speed wireless communication.\60\ More
broadly, the adoption of emerging consumer technologies, such as smart
thermostats, electric water heaters and smart meters, now allows for
load to be managed through geographically-targeted demand reductions,
load building and system balancing.\61\ Through the use of state-of-
the-art sensors and controls, grid-interactive efficient buildings \62\
can reduce 10-20% of commercial building peak load.\63\
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\58\ E.g., AEE Declaratory Order, 161 FERC ] 61,245 at P 57
(finding that RERRAs may not bar the participation of energy
efficiency resources in wholesale markets unless the Commission
gives RERRAs such authority, and declining to opine on the
requirements the Commission would impose in the event that a RERRA
requests such authority).
\59\ Order No. 841-A, 167 FERC ] 61,154 at P 56; Order No. 2222,
172 FERC ] 61,247 at P 60.
\60\ See Voltus, Complaint, Exhibit B (Testimony of Gregg Dixon)
at 4-7.
\61\ The Brattle Group, The National Potential for Load
Flexibility 1 (June 2019), https://brattlefiles.blob.core.windows.net/files/16639_national_potential_for_load_flexibility_-_final.pdf.
\62\ Grid-interactive efficient buildings are energy efficient
buildings with smart technologies characterized by the active use of
distributed energy resources to optimize energy use for grid
services, occupant needs and preferences, and cost reductions in a
continuous and integrated way. U.S. Department of Energy, Grid-
interactive Efficient Buildings 20 (April 2019), https://www.energy.gov/sites/prod/files/2019/04/f61/bto-geb_overview-4.15.19.pdf.
\63\ Id. at 10-11.
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21. Accordingly, we are exploring whether to revise the
Commission's regulations to remove the Demand Response Opt-Out,
recognizing that the Commission, when it established the Demand
Response Opt-Out, balanced the interests and concerns of state and
local regulatory authorities with the Commission's goal of removing
barriers to demand response resource participation in RTO/ISO markets.
Circumstances may have changed in the years since the issuance of Order
Nos. 719 and 719-A, such that the balance reflected in those orders
adopting the Demand Response Opt-Out may have shifted and the RTO/ISO
market rules reflecting the Demand Response Opt-Out may no longer be
just and reasonable. For example, we note that, in its complaint,
Voltus alleges that the Demand Response Opt-Out has become a barrier to
competition. Specifically, Voltus argues that the Demand Response Opt-
Out: (1) Makes gatekeepers of utilities that lack the correct
incentives to maximize the contribution of demand response to market
value; (2) disconnects customers and market prices; (3) blocks
innovation; and (4) results in a costly patchwork of program
requirements and incentives.\64\ Voltus also alleges that the absence
of demand response competition contributes to threats to reliability in
MISO.\65\ Through the questions below, we seek information to help us
examine the potential costs/burdens and benefits, both quantitative and
qualitative, of removing the Demand Response Opt-Out, as well as other
changes relating to demand response since the Commission issued Order
Nos. 719 and 719-A. We are not seeking comment on the Small Utility
Opt-In.
---------------------------------------------------------------------------
\64\ Voltus, Complaint at 58-59.
\65\ Id. at 64. We also acknowledge that parties in that
proceeding opposed these arguments. For example, Organization of
MISO States argues that Order No. 719 and MISO's tariff provisions
implementing it remain just and reasonable. Organization of MISO
States, Inc., Motion to Dismiss Complaint and Protest, Docket No.
EL21-12-000, at 14 (filed Nov. 19, 2020); see also Midwest TDUs,
Motion to Intervene, Protest, and Motion to Dismiss, Docket No.
EL21-12-000, at 13 (filed Nov. 19, 2020) (arguing that Voltus does
not demonstrate that MISO has concluded that its reliability is at
risk unless states rescind their Order No. 719 Demand Response Opt-
Out).
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22. We invite interested persons to submit comments on the
following questions, and we encourage commenters to provide specific
examples and refer to recent, relevant studies or data, as necessary.
Commenters need not answer every question below.
A. Questions Regarding Changed Circumstances Relevant to the Demand
Response Opt-Out Since Issuance of Order Nos. 719 and 719-A
23. First, we seek comment on whether and how circumstances have
changed since the Commission established the Demand Response Opt-Out in
Order Nos. 719 and 719-A.
(Q1) To what extent have the type and capabilities of demand
response technologies and aggregations available to parties seeking to
participate in RTO/ISO markets changed since 2009? \66\
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\66\ In 2009, the Commission issued Order No. 719-A.
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(Q2) To what extent have advances in communications, controls, and
information technology created new demand response capabilities
available to parties seeking to participate in RTO/ISO markets since
2009?
(a) For example, what impact, if any, has broader deployment of
advanced metering infrastructure (AMI) had on the availability and
utilization of demand response for aggregators seeking to participate
in RTO/ISO markets?
(b) Has experience with RTO/ISO deployment of demand response
resources demonstrated any system-
[[Page 15938]]
wide value or operational benefits that accrue, more efficiently and
effectively, via RTO/ISO dispatch through aggregators than would be
available otherwise?
(Q3) To what extent have changes in the resource mix since 2009
increased the need for aggregations of demand response in RTO/ISO
markets, particularly demand response that can respond to operator
instructions in real time? Have impacts of these trends been different
in states that have adopted the Demand Response Opt-Out?
(Q4) The North American Electric Reliability Corporation (NERC) has
stated that demand response provides transmission system operators with
additional system-balancing tools to maintain bulk-power system
reliability.\67\ NERC has also stated that, as the resource mix
changes, flexible resources that can be called upon on short notice,
including demand response, are needed to ensure resource adequacy and
meet ramping needs.\68\ To what extent can demand response aggregations
provide real-time balancing and essential grid services, such as
frequency response and ramping capability, to support bulk-power system
operations? Are third-party demand response aggregators equally able to
provide real-time balancing and essential grid services, or are
utility-operated programs better suited to provide them? Are
transmission system operators better able to leverage these
capabilities given developments in technology and infrastructure since
2009?
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\67\ North American Electric Reliability Corporation, Essential
Reliability Services Task Force Measures Framework Report 63 (Nov.
2015), https://www.nerc.com/comm/Other/essntlrlbltysrvcstskfrcDL/ERSTF%20Framework%20Report%20-%20Final.pdf.
\68\ North American Electric Reliability Corporation, 2020 State
of Reliability 49 (July 2020), https://www.nerc.com/pa/RAPA/PA/Performance%20Analysis%20DL/NERC_SOR_2020.pdf.
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B. Questions Regarding Potential Benefits of Removing the Demand
Response Opt-Out
24. We seek comment on the potential benefits of revising our
regulations to remove the Demand Response Opt-Out. We also seek comment
on reasons why the balance between the Commission's goal of removing
barriers to the development of demand response resources in RTO/ISO
markets and the interests and concerns of state and local regulatory
authorities may have shifted such that the market rules reflecting the
Demand Response Opt-Out may no longer be just and reasonable.
(Q5) What are the potential benefits of removing the Demand
Response Opt-Out, including any benefits not considered by the
Commission in Order Nos. 719 and 719-A, and considering any changed
circumstances that may be relevant? Please note if such benefits were
not previously highlighted in Order Nos. 719 and 719-A.\69\ Please
provide quantitative estimates, if possible. In addition, please
describe the types of entities to which any benefits would accrue.
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\69\ See supra PP 4, 19.
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(Q6) What are the potential benefits of creating more consistency
between the participation models for ARCs and distributed energy
resource aggregators by removing the Demand Response Opt-Out? In light
of market participation opportunities for energy efficiency resources,
electric storage resources, and distributed energy resource
aggregations, would eliminating the Demand Response Opt-Out established
in Order Nos. 719 and 719-A enhance clarity for market participants and
prevent disputes regarding the eligibility of resource aggregations to
participate in wholesale markets?
(Q7) Is there any evidence to suggest that removing the Demand
Response Opt-Out would result in additional demand response resources
participating through aggregations in RTO/ISO markets? Similarly, is
there any evidence to suggest that removing the Demand Response Opt-Out
would result in additional demand response services or flexibility to
address system needs? If so, are there ways to quantify these benefits
to RTO/ISO markets? Do the benefits of permitting increased third-party
demand response aggregations in RTO/ISO markets exceed those provided
by utilities bidding demand response into such markets?
(Q8) Is there any other evidence to suggest that RTO/ISO market
rules reflecting the Demand Response Opt-Out are no longer just and
reasonable?
C. Questions Regarding Potential Resulting Burdens From Removing the
Demand Response Opt-Out
25. We also seek comment on the potential resulting burdens from
removing the Demand Response Opt-Out based on experience gained since
2009. In Order No. 719, the Commission described the various concerns
commenters expressed about the Commission's proposed Demand Response
Opt-Out. Commenters alleged that the proposed Demand Response Opt-Out
would place the burden on local authorities to take action to disallow
participation of ARCs in RTO/ISO markets. Another commenter argued
that, under the Commission's proposal, ARCs would effectively be
allowed to cherry-pick the best load response resources out of existing
load-serving entity demand response programs, depriving those load-
serving entities of important resources used to keep rates down for all
consumers.\70\ The Commission explained its decision to establish the
Demand Response Opt-Out in part by stating that it did not seek to
interfere with the operation of successful retail demand response
programs or place an undue burden on state and local retail regulatory
authorities.\71\
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\70\ Order No. 719, 125 FERC ] 61,071 at PP 139, 141.
\71\ See supra P 19.
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(Q9) To what extent has the Demand Response Opt-Out prevented
interference with the operation of existing retail demand response
programs, or avoided placing an undue burden on state and local retail
regulatory entities, as noted in Order No. 719?
(Q10) What potential costs and burdens might result from removing
the Demand Response Opt-Out, considering any of the changed
circumstances explored above? Please note any burdens that were not
previously mentioned in Order Nos. 719 and 719-A. Please provide
quantitative estimates, if possible.
(Q11) Are there any downsides to increased participation of
aggregators of demand response in RTO/ISO markets from states currently
exercising the Demand Response Opt-Out that may warrant the
Commission's consideration? If so, please describe the potential
downsides and the types of entities that would bear these burdens.
(Q12) Is there a significant difference between any costs and
burdens from complying with Order No. 2222 and those that might result
from removal of the Demand Response Opt-Out? If so, why would removal
of the Demand Response Opt-Out create more costs and burdens?
III. Comment Procedures
26. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice, including any related
matters or alternative proposals that commenters may wish to discuss.
Comments are due June 23, 2021 and Reply Comments are due July 23,
2021. Comments must refer to Docket No. RM21-14-000 and must include
the commenter's name, the
[[Page 15939]]
organization they represent, if applicable, and their address.
27. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at https://www.ferc.gov. The Commission accepts most standard word-processing
formats. Documents created electronically using word-processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
28. Those unable to file electronically may mail comments via the
U.S. Postal Service to: Federal Energy Regulatory Commission, Secretary
of the Commission, 888 First Street NE, Washington, DC 20426. Hand-
delivered comments or comments sent via any other carrier should be
delivered to: Federal Energy Regulatory Commission, 12225 Wilkins
Avenue, Rockville, MD 20852.
29. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
IV. Document Availability
30. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (https://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
31. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
32. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
By direction of the Commission.
Commissioner Danly is concurring a separate statement attached.
Commissioner Christie is dissenting with a separate statement
attached.
Issued: March 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
United States of America
Federal Energy Regulatory Commission
Participation of Aggregators of Retail Demand Response Customers in
Markets Operated by Regional Transmission Organizations and Independent
System Operators--Docket No. RM21-14-000
DANLY, Commissioner, concurring:
1. I disagree that we should eliminate the Commission's rule
establishing states' rights to opt out of wholesale demand response
aggregation programs.\1\ The Commission, however, always has the
discretion to issue a Notice of Inquiry (NOI) on any topic within its
purview. I therefore concur in the issuance of the NOI but oppose the
measures it anticipates.
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\1\ See 18 CFR 35.28(g)(1)(iii) (2020).
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2. It is my understanding that eighteen states have opted out \2\
of the Commission's demand response aggregation mandate in Order No.
719.\3\ Any Commission action to now revoke the states' authority to
opt-out would thus do significant violence to the statutory and
regulatory regimes these eighteen states have enacted, in addition to
the harm it would cause to the long-established division between
federal and state regulation of electricity.\4\
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\2\ The states are Arkansas, Iowa, Indiana, Kansas, Kentucky,
Louisiana, Michigan, Minnesota, Missouri, Mississippi, Montana,
North Carolina, North Dakota, Nebraska, New Mexico, Oklahoma, South
Dakota, and Wisconsin.
\3\ Wholesale Competition in Regions with Organized Electric
Markets, Order No. 719, 125 FERC ] 61,071 (2008), order on reh'g,
Order No. 719-A, 128 FERC ] 61,059, reh'g denied, Order No. 719-B,
129 FERC ] 61,252 (2009).
\4\ I discuss these jurisdictional issues in my dissent today to
Order No. 2222-A. See Participation of Distributed Energy Res.
Aggregations in Mkts. Operated by Reg'l Transmission Orgs. and
Indep. Sys. Operators, Order No. 2222-A, 174 FERC ] 61,197 (2021)
(Danly, Comm'r, dissenting).
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3. I invite these states and any other parties interested in
preserving the traditional and current role of the states in exercising
jurisdiction over retail electricity and distribution systems,
including oversight over demand response programs, to respond to the
NOI and provide appropriate record evidence.
4. Some of the most important evidence I would like to see
submitted concerns whether wholesale demand response aggregation
programs are providing reliability benefits commensurate with their
costs. Before we force everyone to join them, we ought to see if they
work. We often see statistics of the quantity of resources that
participate or join wholesale demand response programs. We rarely see
statistics that quantify the actual performance of these demand
response resources during critical events.
5. Anecdotal evidence suggests their performance during times of
strain may be poor, and perhaps terrible. Commission staff reviewed
preliminary analyses in response to the 2020 California reliability
crisis and observed that dispatched ``Proxy Demand Response'' in CAISO
had 50% availability over the six days of the 2020 California
reliability crisis, while dispatched ``Reliability Demand Response
Resources'' had 71% availability.\5\ The Commission staff further
observed that ``while [Proxy Demand Response] has been regularly
dispatched, its performance varies dramatically,'' and that for
Reliability Demand Response Resources, ``[t]here are neither
established performance metrics nor comparable historical data to
evaluate'' its performance.\6\ It would be an unacceptable failure of
regulatory oversight if we do not have basic performance metrics for
demand response given that these wholesale programs have been
authorized for over a decade--and that customers have been paying for
them all the while.
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\5\ See Preliminary Observations on the August 2020 California
Heat Storm (AD21-3-000), FERC, 15-16 (Dec. 17, 2020), https://cms.ferc.gov/sites/default/files/2020-12/California%20Heat%20Storm%20Inquiry%20Presentation%2C%20December%2017%2C%202020%20--%20Script.pdf.
\6\ Id.
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6. I welcome, indeed, encourage a searching inquiry into how much
demand response actually contributes to reliability during critical
reliability events. Ideally, comments would rest upon detailed analyses
of whether demand response is worth both the costs a resource saves
when it does not purchase energy (when demand responds to requests to
reduce consumption) and the marginal price it receives in payment.
Again, these seem like threshold questions before we upend eighteen
separate states' regulatory regimes enacted to accommodate the opt-out
we currently require but now may eliminate.
For these reasons, I respectfully concur.
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James P. Danly,
Commissioner.
[[Page 15940]]
United States of America
Federal Energy Regulatory Commission
Participation of Aggregators of Retail Demand Response Customers in
Markets Operated by Regional Transmission Organizations and Independent
System Operators--Docket No. RM21-14-000
CHRISTIE, Commissioner, dissenting:
1. As Bob Dylan said, you don't need a weatherman to know which way
the wind blows, and while styled as a Notice of Inquiry (NOI), it is
apparent that this order's end game is to repeal or severely restrict
the ``opt-out'' provisions of Order Nos. 719 and 719-A.\1\
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\1\ See, e.g, NOI at PP 2, 18, 20, 21, 24.
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2. Since those orders were issued, eighteen states have chosen to
use the opt-out provision.\2\ Presumably those states made those
decisions for reasons that were consistent with their own public policy
needs and preferences. FERC should respect those state policy
decisions; however, because those states (and potentially others in the
future) have exercised their own policy choices, the majority now seeks
to block states from making such choices.
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\2\ See Participation of Distributed Energy Resource
Aggregations in Markets Operated by Regional Transmission
Organizations and Independent System Operators, Order No. 2222, 85
FR 67094, 172 FERC ] 61,247, on reh'g, Order No. 2222-A, 174 FERC ]
61,197 (2021) (Danly, Comm'r, dissenting at n. 2).
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3. I therefore dissent for the same fundamental reasons expressed
in my dissent today to Order No. 2222-A: \3\ At a time when we hear
many voices--including some on this Commission--demanding that FERC
`respect' state public policies in RTO/ISO capacity markets when it
comes to the MOPR cases, this order goes in the exact opposite
direction. We see in this NOI another example that for some,
`respecting' state public policies only applies when the states are
doing what they want.
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\3\ See Order No. 2222-A (Christie, Comm'r, dissenting).
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4. I further note, as I discussed today in my dissent to Order No.
2222-A, that combined with that order this one substantially raises the
costs to states of participating in RTOs/ISOs.\4\ Some states not in
RTOs/ISOs may well choose to continue to stay out; those in RTOs/ISOs
may well choose to reconsider their participation, if the cost of
participation is to be blocked by FERC from exercising significant
portions of their historic powers over the retail side of regulation.
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\4\ Id. at P 7. Technically speaking, states approve
participation by state-regulated utilities in RTOs/ISOs.
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For these reasons, I respectfully dissent.
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Mark C. Christie,
Commissioner.
[FR Doc. 2021-06106 Filed 3-24-21; 8:45 am]
BILLING CODE 6717-01-P
