distributed energy resource aggregator on a case-by-case basis).
    \188\ See id. PP 292-293.
    \189\ Id. P 292.
    \190\ Id. P 297.
---------------------------------------------------------------------------

3. Duplication of Interconnection Review
a. Request for Clarification or Rehearing
    77. Public Interest Organizations request that the Commission
clarify how the distribution utility review relates to interconnection
agreements and standards in order to avoid duplicative review.\191\ In
particular, where a resource is already subject to an executed
distribution network interconnection agreement, Public Interest
Organizations argue that the scope of utility review of that resource's
inclusion in an aggregation participating in wholesale markets should
be strictly limited to matters not already addressed in the
interconnection agreement. Furthermore, according to Public Interest
Organizations, in order to object to a resource's participation in a
wholesale market aggregation, the utility should bear the burden of
proving that the manner in which the resource will operate (including
the extent and timing of exports) is outside the range of scenarios
contemplated in its interconnection agreement.\192\
---------------------------------------------------------------------------

    \191\ Public Interest Organizations Request for Rehearing at 39-
41.
    \192\ Id. at 40.
---------------------------------------------------------------------------

    78. Additionally, where the utility establishes a valid reliability
or safety concern associated with a resource's participation in a
distributed energy resource aggregation, Public Interest Organizations
argue that the utility should be required to give the resource in
question an opportunity to modify its interconnection agreement to
address the identified concerns and enable wholesale market
participation. Finally, with respect to a utility's review of issues
not addressed in an interconnection agreement, Public Interest
Organizations urge the Commission to clarify its expectation that this
would be a narrow range of reliability or safety concerns and to
encourage the codification of such concerns into interconnection
standards.\193\
---------------------------------------------------------------------------

    \193\ Id. at 40-41.
---------------------------------------------------------------------------

b. Commission Determination
    79. We partially grant Public Interest Organizations' requested
clarification to the extent that, when the Commission found that RTOs/
ISOs must include potential impacts on distribution system reliability
as a criterion in the distribution utility review process,\194\ the
Commission was referring specifically to any incremental impacts from a
resource's participation in a distributed energy resource aggregation
that were not previously considered by the distribution utility during
the interconnection study process for that resource. For instance, if
the original interconnection study process for a particular distributed
energy resource did not consider the impacts to distribution system
reliability under scenarios that would account for the resource's
participation in a distributed energy resource aggregation in RTO/ISO
markets, such as the impact of full generation output while associated
load is at a minimum level, then that resource's participation in a
distributed energy resource aggregation could present previously
unconsidered safety and reliability impacts to the distribution system.
---------------------------------------------------------------------------

    \194\ Order No. 2222, 172 FERC ] 61,247 at P 297.
---------------------------------------------------------------------------

    80. We deny Public Interest Organizations' request to encourage the
codification of a distribution utility's reliability or safety concerns
into interconnection standards or to require that a distribution
utility offer a

distributed energy resource an opportunity to modify its
interconnection agreement to address such concerns. In Order No. 2222,
the Commission declined to exercise its jurisdiction over the
interconnections of distributed energy resources to distribution
facilities for the purpose of participating in RTO/ISO markets
exclusively as part of a distributed energy resource aggregation.\195\
Further, the Commission stated that the final rule in no way prevents
state and local regulators from amending their interconnection
processes to address potential distribution system impacts due to the
participation of distributed energy resources in aggregations.\196\
Moreover, the distribution utility review process, including its
processes for dispute resolution as necessary, will allow a distributed
energy resource aggregator to address any concerns raised by the
distribution utility and propose additional mitigation measures.
---------------------------------------------------------------------------

    \195\ Id. P 90.
    \196\ Id. P 294.
---------------------------------------------------------------------------

4. RERRA Involvement
    81. In Order No. 2222, the Commission required each RTO/ISO to
specify in its tariff, as part of the market rules on coordination, how
each RTO/ISO will accommodate and incorporate voluntary RERRA
involvement in coordinating the participation of aggregated distributed
energy resources in RTO/ISO markets.\197\
---------------------------------------------------------------------------

    \197\ Id. P 322.
---------------------------------------------------------------------------

a. Request for Clarification or Rehearing
    82. Public Interest Organizations request that the Commission
encourage RTOs/ISOs to explain in their compliance filings how they
will ensure that coordination with RERRAs does not unjustly limit
distributed energy resource aggregators' access to wholesale
markets.\198\
---------------------------------------------------------------------------

    \198\ Public Interest Organizations Request for Rehearing at 41-
42.
---------------------------------------------------------------------------

b. Commission Determination
    83. We deny Public Interest Organizations' requested clarification.
In Order No. 2222, the Commission recognized the voluntary role that
RERRAs can play, as the regulatory agencies governing distribution
utilities and the distribution system, in stakeholder discussions to
establish RTO/ISO rules for distributed energy resource
aggregations.\199\ In recognizing this role, the Commission required
that each RTO/ISO must specify in its tariff any role for RERRA
involvement in coordinating the participation of distributed energy
resource aggregations in RTO/ISO markets.\200\ Consistent with the
goals of Order No. 2222,\201\ the Commission will evaluate on
compliance whether an RTO's/ISO's proposal delineates a role for RERRAs
that would result in unjust and unreasonable limits on the
participation of distributed energy resource aggregators in wholesale
markets.
---------------------------------------------------------------------------

    \199\ Order No. 2222, 172 FERC ] 61,247 at PP 322-324.
    \200\ Id. P 324.
    \201\ See id. P 279 (stating that ``coordination requirements
should not create undue barriers to entry for distributed energy
resource aggregations''); see also id. P 130 (``The Commission will
evaluate each proposal submitted on compliance to determine whether
it meets the goals of this final rule to allow distributed energy
resources to provide all services that they are technically capable
of providing through aggregation.'').
---------------------------------------------------------------------------

III. Information Collection Statement

    84. The burden estimates have not changed from the final rule.

IV. Regulatory Flexibility Act

    85. The Regulatory Flexibility Act of 1980 (RFA) \202\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
Pursuant to section 605(b) of the RFA, we still conclude that this rule
will not have a significant economic impact on a substantial number of
small entities.
---------------------------------------------------------------------------

    \202\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

V. Document Availability

    86. 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 (http://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).
    87. 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.
    88. User assistance is available for eLibrary and the Commission's
website during normal business hours from FERC Online Support at 202-
502-6652 (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
VI. Effective Date and Congressional Notification

    89. The further revised regulation in this order is effective June
1, 2021.

List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and
recordkeeping requirements.

    By the Commission.

    Commissioner Danly is dissenting with a separate statement
attached.

    Commissioner Christie is dissenting with a separate statement
attached.

    Issued: March 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission is proposing to
amend part 35, chapter I, title 18, Code of Federal Regulations, as
follows:

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

0
1. The authority citation for Part 35 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.

0
2. In Sec.  35.28, paragraph (g)(12)(i) is revised as follows:

Sec.  35.28  Non-discrimination open access transmission tariff.

* * * * *
    (g) * * *
    (12) * * * (i) Each independent system operator and regional
transmission organization must have tariff provisions that allow
distributed energy resource aggregations to participate directly in the
independent system operator or regional transmission organization
markets.
* * * * *

    Note: The following appendices will not appear in the Code of
Federal Regulations

Department of Energy Federal Energy Regulatory Commission

Participation of Distributed Energy Resource Aggregations in Markets
Operated by Regional Transmission Organizations and Independent System
Operators; Docket No. RM18-9-002

DANLY, Commissioner, dissenting:

    1. I dissent from this order on rehearing of Order No. 2222, the
Commission's distributed energy resource aggregations mandate, for the
same reasons that I dissented from the

original.\1\ It oversteps the reasonable exercise of the Commission's
authority at the expense of the states. I am surprised and disappointed
that no party sought rehearing of the Commission's decision not to
establish a state opt-out--if parties, especially states, do not
vigorously advocate for their own interests before the Commission,
their failure denies the Commission the record evidence it needs to
weigh the issues at stake in our proceedings and, more critically, they
deprive themselves of a vehicle for appeal.
---------------------------------------------------------------------------

    \1\ See Participation of Distributed Energy Res. Aggregations in
Mkts. Operated by Reg'l Transmission Orgs. & Indep. Sys. Operators,
Order No. 2222, 85 FR 67,094 (Oct. 21, 2020), 172 FERC ] 61,247
(2020) (Danly, Comm'r, dissenting).
---------------------------------------------------------------------------

    2. I acknowledge the recent cases upon which the Commission relies
to exercise its jurisdiction in this order, but these cases concerned
whether the Commission possesses claimed authority, reserving the
question of whether the Commission has discretion to exercise it.\2\
Clearly the Commission has the power, exclusive jurisdiction or not, to
establish a state opt-out.\3\ I would decline to exercise our
jurisdiction to obstruct the states from asserting authority over
distributed energy resource aggregations. The Commission owes fidelity
to the clear division of jurisdiction between the federal government
and the states, a due regard for federalism that is embedded in the
very structure of the Federal Power Act (FPA). This order unnecessarily
invades an area best left to the states, burdening them with another of
our Good Ideas, the details of which we leave them to figure out, and
the burdens of which we leave to them to bear.
---------------------------------------------------------------------------

    \2\ Compare FERC v. Elec. Power Supply Ass'n, 136 S. Ct. 760
(2016) (EPSA), with Nat'l Ass'n of Regul. Util. Comm'rs v. FERC, 964
F.3d 1177 (D.C. Cir. 2020) (NARUC).
    \3\ See NARUC, 964 F.3d at 1189 (``The Supreme Court described
the opt-out feature as `cooperative federalism . . . .' '') (quoting
EPSA, 136 S. Ct. at 780).
---------------------------------------------------------------------------

    3. And, as always, this decision, which flies in the face of the
division of state and federal authority in the FPA, will inevitably
lead to more conflicting and incoherent law in which no principled
basis can be adduced for why the Commission embraces some actions while
at the same time refusing to countenance others. Put another way:
blurred lines create fuzzy results. For example, the Commission ruled
in Order No. 2222 that it has jurisdiction and chose to exercise it
over the electricity sales of distributed energy resource aggregations.
Or, as we summarized it in today's order,

the Commission found that it has jurisdiction to decide which
entities may participate in wholesale markets, which means that a
[relevant electric retail regulatory authority (RERRA)] cannot
broadly prohibit the participation in RTO/ISO markets of all
distributed energy resources or of all distributed energy resource
aggregators, as doing so would intrude upon the Commission's
statutory authority to ensure that wholesale electricity markets
produce just and reasonable rates.\4\
---------------------------------------------------------------------------

    \4\ Participation of Distributed Energy Res. Aggregations in
Mkts. Operated by Reg'l Transmission Orgs. & Indep. Sys. Operators,
Order No. 2222-A, 174 FERC ] 61,197, at P 6 (2021).

    4. The Commission's assertion of authority over ``RERRAs,''
including ``states,'' includes electricity sales by qualifying
facilities even if the qualifying facility is the sole entity in a
distributed energy resource aggregation, which, by the by, strikes me
as loading the term ``aggregation'' with quite a bit more weight than
it can reasonably bear.\5\
---------------------------------------------------------------------------

    \5\ See Order No. 2222, 172 FERC ] 61,247 at P 186.
---------------------------------------------------------------------------

    5. As if to intentionally muddy the waters, we then ``clarify'' on
rehearing that ``we decline to exercise our jurisdiction over the
interconnections of distributed energy resources'' that also are
qualifying facilities that participate in a distributed energy resource
aggregation.\6\ This also is true even if the qualifying facility is
the sole entity in a distributed energy resource aggregation.\7\ We
decline this latter exercise of our authority ``to avoid a significant
increase in the number of distribution-level [qualifying facility (QF)]
interconnections subject to the Commission's jurisdiction, which . . .
could create uncertainty and potentially impose an overwhelming burden
on RTOs/ISOs.'' \8\ We also cite the ``confluence of local, state, and
federal authorities over QF distributed energy resource
interconnections.'' \9\
---------------------------------------------------------------------------

    \6\ Order No. 2222-A, 174 FERC ] 61,197 at P 47.
    \7\ See id. PP 42-47.
    \8\ Id. P 47.
    \9\ Id.
---------------------------------------------------------------------------

    6. I agree wholeheartedly with every word of that. And these are
the exact same excellent reasons to decline to exercise any authority
we may have over distributed energy resource aggregations in the first
place. It is difficult to square these two outcomes. Either we have
jurisdiction over ``aggregations'' of QF power that allows us to
prevent the states from prohibiting QFs from selling in the RTO
markets, or we do not. But once we have asserted that we do have such
jurisdiction over aggregators selling power generated by QFs
interconnected at the distribution level, it is odd indeed to then
disclaim jurisdiction over the QF's interconnections. These are the
kinds of inconsistent determinations that inevitably arise when the
Commission goes too far in exercising its discretion to assert its
jurisdiction absent a principled basis. This inconsistency counsels
strongly for prudent, deliberate action before the Commission usurps
the states' already diminishing power.
    7. My point is not that I want the Commission to exercise
jurisdiction over QF interconnections at the distribution level, but
that I prefer that the Commission stay out of the way when it can--as
it certainly can here--and let the states exercise their own authority
to the maximum extent possible over distribution systems and retail
sales. A free enterprise market system might also develop and do a
better job than the Commission at efficiently allocating resources to
the development of distributed energy resources. I prefer that free-
market, local approach over drawing arbitrary lines between Commission
and ``RERRA'' authority, such as over the sales but not the
interconnections of QFs participating--even as the sole entity--in
distributed energy resource aggregations.
    8. We saw the same jurisdictional inconsistencies when it came to
demand response. The Commission previously required (some assert,
``allowed'') wholesale demand response programs to permit states to opt
out.\10\ In Order No. 2222, the Commission worked itself into fits to
assert jurisdiction over distributed energy resource aggregations,
which include many demand response resources, without detracting from
the state opt-out the Commission previously required (or ``allowed'')
for wholesale demand response programs.\11\ Today we issue a Notice of
Inquiry aimed at eliminating the state opt-out for demand response.\12\
While one may see this as an admirable first, if small, step toward
consistency, it would have been better, and consistent from the outset,
if the Commission simply honored the states and their decision whether
or not to participate in wholesale programs.
---------------------------------------------------------------------------

    \10\ See Wholesale Competition in Regions with Organized Elec.
Mkts., Order No. 719, 125 FERC ] 61,071, at P 154 (2008), order on
reh'g, Order No. 719-A, 128 FERC ] 61,059, at P 60, reh'g denied,
Order No. 719-B, 129 FERC ] 61,252 (2009) .
    \11\ See Order No. 2222, 172 FERC ] 61,247 at P 145; see also
id. at PP 41-43, 118.
    \12\ See Participation of Aggregators of Retail Demand Response
Customers in Mkts. Operated by Reg'l Transmission Orgs. and Indep.
Sys. Operators, 174 FERC ] 61,198 (2021).
---------------------------------------------------------------------------

    9. But the inconsistency is not cabined merely to this genus of
Commission-created wholesale program--no, it is seen in nearly all the

Commission's treatment of our jurisdictional markets. The same
Commission that asserts jurisdiction over distribution resources and
demand response, seemingly to ``protect'' the wholesale markets,
enthusiastically permits the states to suppress wholesale capacity
market prices through renewable subsidy programs. We issue such an
order today in a ruling that--inexplicably--holds that an expansive
Virginia tax break that overwhelmingly targets new solar resources is
not a state subsidy under PJM's minimum offer price rule because other
types of pollution controls also qualify for the relief.\13\ The notion
that the Commission acts to protect wholesale markets when it deprives
the states of their authority over local concerns that may affect those
markets cannot be squared with our simultaneous decisions granting the
states broad latitude to distort the same markets.
---------------------------------------------------------------------------

    \13\ See Hollow Road Solar LLC, 174 FERC ] 61,200 (2021).
---------------------------------------------------------------------------

    10. As a final thought, I would simply issue a warning. The
Commission's longstanding policy has been to promote the development of
RTOs and ISOs.\14\ As the march of federal overreach into the retail
and distribution operations of RTO participants proceeds apace, it
becomes increasingly difficult to imagine why any utility that has not
already joined an RTO would even consider joining or forming a new one.
Assertion of jurisdiction, especially when exercised inconsistently and
in tension with the statute, will do nothing to encourage the
development of our markets.
---------------------------------------------------------------------------

    \14\ See, e.g., Reg'l Transmission Orgs., Order No. 2000, FERC
Stats. & Regs. ] 31,089 (1999) (cross-referenced at 89 FERC ]
61,285), order on reh'g, Order No. 2000-A, FERC Stats. & Regs. ]
31,092 (2000) (cross-referenced at 90 FERC ] 61,201), aff'd sub nom.
Pub. Util. Dist. No. 1 of Snohomish Cty. v. FERC, 272 F.3d 607 (D.C.
Cir. 2001); Order No. 719, 125 FERC ] 61,071 at P 1 (``National
policy has been, and continues to be, to foster competition in
wholesale electric power markets. This policy was embraced in the
Energy Policy Act of 2005 . . . and is reflected in Commission
policy and practice.'') (citation omitted).
---------------------------------------------------------------------------

    11. In sum, I would decline to exercise our jurisdiction over
distributed energy resource aggregations, including both the sales and
interconnections of qualifying facilities participating in a
distributed energy resource aggregation, whether the sole resource in
the aggregation or not.
    For these reasons, I respectfully dissent.

James P. Danly,
Commissioner.

Department of Energy

Federal Energy Regulatory Commission

Participation of Distributed Energy Resource Aggregations in Markets
Operated by Regional Transmission Organizations and Independent System
Operators; Docket No. RM18-9-002

CHRISTIE, Commissioner, dissenting:

    1. Today the majority doubles down on siding with commercial
interests seeking entry into the RTO/ISO markets and against the states
and other authorities \1\ whose job is to defend the public, not
private, interest.\2\ By doing so, the majority also sides against the
consumers who for years to come will almost surely pay billions of
dollars for grid expenditures likely to be rate-based in the name of
``Order 2222 compliance.'' \3\
---------------------------------------------------------------------------

    \1\ Other Relevant Electric Retail Regulatory Authorities
(RERRAs), as referenced in both Orders No. 2222 and 2222-A, include
municipal and public-power authorities, and electric co-operatives,
all of whom face costly operational compliance challenges. See,
e.g., November 6, 2019 Reply Comments of the National Rural Electric
Cooperative Association (NRECA) at 3-6, February 13, 2017 Comments
of American Public Power Association (APPA) and NRECA at 22; see
also April 17, 2019 Supplemental Comments of APPA and NRECA at 2-3,
5-6.
    \2\ See also June 26, 2018 Comments of the National Association
of Regulatory Utility Commissioners (NARUC) at 3-4 (``State
commissions, like FERC, are required to act in the public interest.
The limited opt-out provision envisions a scenario in which an
entity that is solely motivated by its commercial interests makes a
unilateral decision about its participation before the State
commission can determine whether this distribution asset should
participate in that market, which puts profits before State
responsibilities. FERC should not eschew cooperative federalism and
attempt to give control over resource adequacy and other crucial
State decisions to a commercial stakeholder instead of FERC's
longstanding partners in energy regulation, State commissions.'')
    \3\ Technically speaking, Order No. 2222-A is issued today in
response to requests for rehearing of Order No. 2222, approved by
the Commission last September, when I was not a member. It keeps all
the worst aspects of Order No. 2222 largely intact; the relatively
minor changes it does make, render Order No. 2222 even worse in its
infringement on state policies and potential costly impact on
consumers.
---------------------------------------------------------------------------

    2. It is indeed ironic that at the same time we hear many,
including some members of this Commission, demanding that FERC
`respect' state public policies in capacity markets instead of imposing
MOPR-type rules (and I have agreed with trying to accommodate state
policies in RTO markets), this order goes in the exact opposite
direction. So apparently `respect' for state public policies only
applies when states are doing what some want.
    3. Sadly, instead of making the states, municipal and public-power
authorities and electric co-operatives truly equal partners in managing
the timing and conditions of deployment of behind-the-meter DERs in
ways that are sensitive to local needs and challenges--both technical
and economic--today's order denies them any meaningful control by
prohibiting any opt-out or opt-in options except in relatively tiny
circumstances. This order--and its predecessor--intentionally seize
from the states and other authorities their historic authority to
balance the competing interests of deploying new technologies while
maintaining grid reliability and protecting consumers from unaffordable
costs.
    4. A rapid concentration of behind-the-meter aggregated DERs at
various locations on the local grid will inevitably require costly
upgrades to a distribution grid that has largely been engineered to
deliver power from the substation to end-user retail customers. Meeting
the technological challenges of this re-engineering of the local grid
are not insuperable but there are substantial costs and we all know
these costs will ultimately be imposed on retail consumers. States,
public-power authorities and co-operatives are far better positioned to
manage these costs and competing interests in their own areas of
responsibility than FERC.\4\
---------------------------------------------------------------------------

    \4\ While Order No. 2222-A ostensibly leaves state regulators in
charge of interconnection, that apparent authority is merely an
illusion if state regulators are blocked from the fundamental
decision whether interconnection for purposes of entry by
aggregators into RTO markets is worth the costs to all consumers of
the system upgrades necessary to protect reliability. Even more
practically, this order invites endless litigation as commercial
interests seeking entry into RTO markets challenge state
interconnection policies as illegal barriers to entry and use
litigation as a weapon against the state regulators, public-power
authorities and co-operatives, which are limited in the resources
they have available to fight such litigation. See, e.g., Order No.
2222-A at P 83 (``Consistent with the goals of Order No. 2222, the
Commission will evaluate on compliance whether an RTO's/ISO's
proposal delineates a role for RERRAs that would result in unjust
and unreasonable limits on the participation of distributed energy
resource aggregators in wholesale markets.'' (footnote omitted))
(emphasis added).
---------------------------------------------------------------------------

    5. Order No. 2222-A is not ``cooperative federalism,'' \5\ but its
opposite. It undermines the overarching policy framework that Congress
incorporated into the Federal Power Act decades ago: Federal regulation
of wholesale rates and the bulk power system; state regulation of
retail rates and the local distribution grid. Any argument that
allowing state policies to determine the entry of aggregated DERS into
capacity or other markets will result in a `checkerboard' or
`patchwork' of different policies, is an argument against state
authority itself. The

existence of fifty states by definition means a patchwork of 50 state
retail regulatory structures, but that goes with the territory in our
constitutional structure and is entirely consistent with the Federal
Power Act's basic division of federal and state authority. This panoply
of diverse state policies is exactly what Justice Brandeis celebrated
when he recognized states as laboratories of democracy.\6\
---------------------------------------------------------------------------

    \5\ FERC v. Elec. Power Supply Ass'n, 136 S. Ct. 760, 780
(2016).
    \6\ New State Ice Co. v. Liebman, 52 S. Ct. 371, 386-87 (1932)
(Brandeis, J. dissenting).
---------------------------------------------------------------------------

    6. Unfortunately this order is a missed opportunity. It could have
been a constructive move in the development and deployment of behind-
the-meter DERs. For at least the next several years the regime set up
should have been made fully ``opt out'' for all load-serving utilities,
including state-regulated, municipals and co-operatives, which this
Commission clearly has the authority to do.\7\ Providing such
flexibility to the states and other RERRAs would allow them to manage
the deployment of behind-the-meter DERs in ways necessary to meet their
own unique challenges.
---------------------------------------------------------------------------

    \7\ The Commission recognizes in today's order that even if it
possesses jurisdiction, it may provide opt-outs and opt-ins to the
RERRAs. Order at P 34 (in addressing the small utility opt-in, the
Commission noted that ``[a] RERRA that elects not to opt in under
either Order No. 719 or Order No. 2222 does not intrude on the
Commission's exclusive authority over practices that directly affect
wholesale rates because the Commission chose to provide such an opt-
in and expressly codified this opt-in in the Commission's
regulations.'' (footnote omitted)). To my point: Even if the
Commission believes it has exclusive jurisdiction, the Commission
has the discretion to provide an opt-out or an opt-in. See id.
---------------------------------------------------------------------------

    7. In addition, at a time when there has been discussion about how
to incentivize states to require or allow their utilities to enter
RTOs/ISOs, I note that if the cost of entering an RTO/ISO is forfeiting
a big chunk of the state's authority to balance protecting its
consumers with the costs of new technology deployments and associated
grid upgrades, the incentive for states to approve RTO membership just
took a nosedive in value with the approval of this order. Combined with
the NOI obviously designed to remove or severely restrict the current
opt-out provisions in Order Nos. 719 and 719-A on today's agenda, these
two orders may not only deter states currently outside RTOs from
participation, but may well cause states in RTOs/ISOs to reconsider
whether their consumers' interests are best served by continued
participation.
    8. Let me be clear: Encouraging the development of DERs is a good
thing; eviscerating the states' historic authority in the name of
encouraging DER development is not. On the contrary, it is the states
and other local authorities that are far better positioned than FERC to
manage successfully the development and deployment of DERs in ways that
serve reliability needs, that protect consumers from inflated costs,
and that are far more sustainable in the long run.
    For these reasons, I respectfully dissent.

Mark C. Christie,
Commissioner.

[FR Doc. 2021-06089 Filed 3-29-21; 8:45 am]
BILLING CODE 6717-01-P