For the First Time, FERC Orders a Non-Jurisdictional Entity to File an Open Access Transmission Tariff, Finding that a Bonneville Power Administration Policy is Unduly Discriminatory

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In a case that was highly controversial, the Federal Energy Regulatory Commission (FERC) has ordered the Bonneville Power Administration (BPA), an entity that is not within FERC’s plenary electric transmission jurisdiction, to file a tariff that requires it to provide non-discriminatory transmission service. In its Dec. 7, 2011 order directing BPA to file an Open Access Transmission Tariff (OATT), FERC exercised its statutory authority under section 211A of the Federal Power Act (FPA) for the first time. Although FERC had been reluctant to use this authority, the facts in this case convinced FERC that BPA had taken actions that were unduly discriminatory to certain transmission customers, and that a remedy was necessary.

In June 2011, a group of wind energy developers in the Pacific Northwest (Wind Petitioners) filed a petition at FERC asking, among other things, that FERC exercise its section 211A authority to order BPA to remedy what the Wind Petitioners described as discriminatory transmission service. Their petition grew out of an unusual confluence of events and regulatory policies that occasionally result in an “over-generation” situation in the Northwest region.

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