PJM Interconnection Inc.’s (PJM) new “Focused” Minimum Offer Price Rule (MOPR) went into effect on September 29, 2021, by operation of Section 205 of the Federal Power Act (FPA), because the Federal Energy Regulatory Commission (FERC) was divided two (Chairman Glick and Commissioner Clements) against two (Commissioners Danly and Christie) as to the lawfulness of PJM’s proposed tariff change and, consequently, no order was issued by FERC in response to PJM’s filing.
In October, the Commissioners issued statements, required under Section 205(g) of the FPA, explaining their views with respect to PJM’s Focused MOPR.
On July 30, 2021, PJM filed revisions to its Open Access Transmission Tariff (Tariff) to reform the application of its MOPR. Under PJM’s Tariff filing, starting with the 2023/2024 Delivery Year, PJM will replace the “Expanded MOPR” approved by FERC in 2019, with a Focused MOPR that applies to all generation resource types, and no longer mitigates all forms of state subsidies, but allows capacity market sellers to reflect all state support in their offers, except for Conditioned State Support. Under the Focused MOPR:
While in his statement, Commissioner Christie agreed that PJM’s Expanded MOPR “should be replaced or significantly modified,” he also said that he would have voted to reject PJM’s proposal because “it fails to meet even the minimum standard required by Section 205.” Commissioner Christie further stated that he would have initiated a proceeding under Section 206 of the FPA, proposing that PJM formulate a replacement for the current MOPR based on three broad principles: “(1) a state may designate specific or categorical resources as ‘public policy resources’ and such designated resources will be funded through a mechanism chosen by the state outside of the capacity market without forcing the state or its regulated utilities to take full Fixed Resource Requirement status under current rules; (2) load and reserve requirements associated with the capacity of the designated public-policy resources would be removed from the capacity market; and (3) non-sponsoring state consumers would not be forced to pay for another state’s designated public-policy resources.”
In their lengthy joint Statement, Chairman Glick and Commissioner Clements stated that they would have voted to approve PJM’s Focus MOPR because, in their view, “it is just and reasonable and not unduly discriminatory and preferential, consistent with the requirements of Section 205 of the [FPA].” They further stated that the Focused MOPR “rights the wrongs created by” the Expanded MOPR as, among other things, it “abandons [FERC’s] deeply misguided campaign to ‘nullify’ the effects of legitimate state policies.”
In his statement, Commissioner Danly said that he voted to reject PJM’s Focused MOPR provisions because they are “structured so as to ensure that it is virtually certain that the MOPR will never be applied to any generation resource” and, therefore, are “so deliberately ineffectual that their approval violates [FERC’s] statutory duty to ensure that PJM’s capacity market produces just and reasonable rates.” In Commissioner Danly’s view, “the Focused MOPR will allow state subsidies to suppress capacity prices, depriving need dispatchable generation of the revenue required to remain in service.”
Under Section 205(g) of the FPA, the MOPR Notice is considered to be an order issued by FERC accepting PJM’s Tariff change for purposes of seeking rehearing. On October 5, PJM Power Producers Group filed an “Emergency Request for Rehearing” of the MOPR Notice, arguing that it is unlawful under the FPA. Additional requests for rehearing were filed on October 28, 2021, by Vistra Corp. and Dynegy Marketing and Trade, LLC, Old Dominion Electric Cooperative, the Pennsylvania Public Utility Commission and the Public Utilities Commission of Ohio, and the Electric Power Supply Association.
FERC has not yet acted on the requests for rehearing. Under Section 205(g) of the FPA, if FERC fails to act on the merits of a request for rehearing within 30 days of the date of the request for rehearing because the Commissioners are divided two against two, as a result of vacancy, incapacity or recusal, or if FERC lacks a quorum, the person who filed the request for rehearing may seek judicial review.
 President Biden has nominated Willie L. Phillips, Chairman of the Public Service Commission of the District of Columbia, to be the fifth FERC Commissioner, which nomination is pending in the U.S. Senate.
 PJM Interconnection, L.L.C., Notice of Filing Taking Effect by Operation of Law, Docket No. ER21-2582-000 (Sept. 29, 2021)(the “MOPR Notice”).
 Under Section 205(d) of the FPA, unless FERC orders otherwise, a public utility may not make any change in rates except after sixty days’ notice to FERC and to the public. Under Section 205(g) of the FPA, if FERC permits the 60-day period established in Section 205(d) to expire without issuing an order accepting or denying the change because the Commissioners are divided two against two as to the lawfulness of the change, as a result of vacancy, incapacity or recusal, or if FERC lacks a quorum, the failure to issue an order is considered to be an order issued by FERC accepting the change for purposes of seeking rehearing, and each Commissioner is required to add to the record a written statement explaining the views of the Commissioner with respect to the change.
 PJM Interconnection L.L.C., Statement of Commissioner Christie, Docket No. ER21-2582-000 (Oct. 19, 2021), PJM Interconnection, L.L.C., Statement of Chairman Glick and Commissioner Clements, Docket No. ER21-2582-000 (Oct. 19, 2021), and PJM Interconnection, L.L.C., Statement of James P. Danly, Docket No. ER21-2582-000 (Oct. 27, 2021).
 PJM Interconnection, L.L.C., Revisions to Application of Minimum Offer Price Rule, Docket No. ER21-2582-000 (filed July 30, 2021).
 PJM Interconnection, L.L.C., 169 FERC ¶ 61,239 (2019), order on reh’g, 171 FERC ¶ 61,035, order on reh’g, 173 FERC ¶ 61,061 (2020), appeals pending, Ill. Com. Comm’n v. FERC, Nos. 20-1645, et al. (7th Cir. Apr. 20, 2020). PJM’s Expanded MOPR applies to new natural gas-fired generation resources and generation resources that receive or are entitled to receive any form of State Subsidy, subject to certain exceptions and exemptions. PJM opened its 2022/2023 Base Residual Auction on May 19, 2021, under the Expanded MOPR.
 PJM’s capacity market is called the Reliability Pricing Model, or RPM.
 Christie Statement at P 2.
 Christie Statement at P 5. Section 205(a) of the FPA requires that “[a]ll rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of [FERC] . . . shall be just and reasonable. . . .” 16 U.S.C . § 824d(a).
 Christie Statement at P 6. Section 206(a) of the FPA requires FERC to determine the just and reasonable rate to be charged in the future if, after a hearing held on its own motion or in response to a complaint, it finds that any rate charged by any public utility for any transmission or sale subject to FERC’s jurisdiction is unjust, unreasonable, unduly discriminatory or preferential. 16 U.S.C. § 824e(a).
 Glick and Clements Statement at P 1.
 Glick and Clements Statement at PP 2-3.
 Danly Statement at P 38 (emphasis omitted).
 Danly Statement at P 67.