ER26-3380-001 · 2026-10-29 · Joint Consumer Advocates (DE, DC, IL CUB, IL AG, MD, NJ)
Request for Rehearing of the Joint Consumer Advocates (DE, DC, IL CUB, IL AG, MD, NJ) of the September 29, 2026 backstop order
Back to sections and commentaryPDF page 1
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
PJM Interconnection, L.L.C.
Docket No. ER26-3380-000
REQUEST FOR REHEARING OF THE JOINT CONSUMER ADVOCATES
Pursuant to section 313 of the Federal Power Act (FPA)1 and Rule 713 of the
Federal Energy Regulatory Commission’s (Commission or FERC) Rules of Practice and
Procedure,2 the Delaware Division of the Public Advocate, District of Columbia Office of
People’s Counsel, Illinois Citizens Utility Board, Office of the Illinois Attorney General,
Maryland Office of the People’s Counsel, and New Jersey Division of Rate Counsel
(collectively, Joint Consumer Advocates) respectfully request rehearing of PJM
Interconnection, L.L.C., 196 FERC ¶ 61,245 (2026) (RBP Order or Order).
PJM Interconnection, L.L.C.’s (PJM) underlying Reliability Backstop Procurement
(RBP) proposal is meant to enable the procurement of sufficient “new capacity to address
significant resource adequacy challenges primarily driven by an influx of large loads.”3
The proposal, however, is fundamentally flawed because it permits the unmitigated
exercise of seller-side market power and its design seems guaranteed to ensure that PJM
procures more resources than are necessary, at costs higher than are warranted.4
Notwithstanding the Commission’s concerns with several aspects of the proposal, the
1 16 U.S.C. § 825l.
2 18 C.F.R. § 385.713.
3 RBP Order P 1.
4 See, e.g., Protest, Motion to Reject, and Alternative Request for the Imposition of Conditions of Joint
Consumer Advocates at 5-7 (Aug. 21, 2026), eLibrary No. 20260821-5183 (JCA Protest).
PDF page 2
- 2 -
Commission accepted without alteration many deeply flawed components of the proposed
RBP framework. In doing so, the Commission erred in numerous respects and failed to
meet its statutory obligation to protect PJM’s already over-burdened ratepayers from unjust
and unreasonable charges.
First. The Order accepts RBP without requiring reasonable market power screens
or mitigation,5 while acknowledging (1) that the RBP’s pay-as-bid structure makes it
“theoretically less likely [that sellers will] offer near their marginal costs,”6 and (2) PJM’s
admission that sellers are instead more likely to offer the expected clearing price.7 In doing
so, the Order ignores over 50 years of judicial and Commission precedent that permits the
use of market-based transactions to set just and reasonable rates under the FPA only where
there will likely be fair competition based upon marginal cost bids and adequate mitigation
of seller-side market power. The Order assumes without evidence that mitigation measures
are unnecessary because: (1) the exercise of market power will be averted if sufficient
resources choose to participate in the RBP and drive down prices, and (2) the inclusion of
a proposed megawatt (MW)-weighted average-price cap will “discipline[] costs.”8 But, as
shown below and as set forth in the JCA Protest, these assertions are legally insufficient,
factually unsupported, and at odds with the record evidence.
Second. The Order accepts a price cap of $555/MW-day, on a MW-weighted
average basis, finding, without reasoned explanation, “that using the $555/MW-day price
5 RBP Order P 75.
6 Id.
7 PJM, Reliability Backstop Procurement to Address Resource Adequacy Concerns Stemming from New
Load Adjustments, Transmittal at 71 & n.184 (July 31, 2026), eLibrary No. 20260731-5214 (PJM Filing)
(quoting id., Attach. C, Affidavit of Ms. Danielle Croop ¶ 33 (Croop Aff.)).
8 RBP Order P 98.
PDF page 3
- 3 -
cap for the 2028/2029 [Base Residual Auction (BRA)] . . . is a reasonable proxy of load’s
maximum willingness to pay for RBP capacity.”9 The Order ignores Joint Consumer
Advocates’ arguments demonstrating that the BRA is not analogous to the RBP and that a
$555/MW-day average price cap is unjust and unreasonable in the RBP context:
•
The BRA is a single-clearing-price auction that structurally incentivizes
suppliers to offer capacity at the supplier’s marginal cost. In that context, a
market price cap is a second-line protection against unjust and unreasonable
prices. In the RBP pay-as-bid structure, the incentive to offer at marginal
cost is missing, and the market average price cap affords bidders the ability
to exercise market power by gaming their bids around the price cap. And
whatever prices are set in the RBP will apply for a much longer period. It is
essential to ensure that any RBP price cap is set at an appropriate level to
ensure just and reasonable rates.
•
The BRA sets capacity auction clearing prices for commitment periods of a
single year, offering little long-term price certainty. In contrast, the RBP
sets prices for terms up to 15 years. As both PJM and FERC acknowledge,
greater price certainty reduces supplier risk and costs.10 RBP’s greater
revenue certainty therefore argues for a lower price cap in the long-term
RBP than the cap that applies in the annual, single-year BRAs.
•
The $555/MW-day is borrowed from Point 1 of the Variable Resource
Requirement (VRR) curve that would have applied in the BRA for the
2028/2029 Delivery Year but for PJM’s request and the Commission’s
approval to apply a temporary price collar with a lower cap. While Point 1
of the VRR is a reference cost grounded in the estimated levelized Cost of
New Entry (CONE) for a combustion turbine (CT) reference resource, the
RBP has no reference resource or VRR curve and there is no evidence that
a $555/MW-day price cap will reflect the production costs of the resources
that the RBP will procure.
•
The RBP proposal borrowed a BRA price cap that was not in effect for the
2028/2029 Delivery Year because it was replaced by price collar with a
lower cap. As the Order acknowledges, that cap—accepted by the
Commission as just and reasonable—was just $325/MW-day.11 The Order
fails to explain how it also could be just and reasonable to accept an RBP
9 Id. P 74.
10 See id. P 76 (“As PJM explains, long contract terms create revenue certainty for RBP Resources and
generally can reduce financial and development risk and may improve financing opportunities through
lower capital costs or more favorable financing terms.”).
11 Id. P 13.
PDF page 4
- 4 -
price cap that is 70% higher and will be applied to commitment periods up
to 15 times longer than was the case for the 2028/2029 BRA.
Third. The RBP Order accepts without explanation the requirement that resources
procured through the RBP be subject to a 15-year commitment despite PJM’s admission
that a resource procurement “of at least five years is capacity that will address the reliability
shortfall.”12 The Order acknowledges but fails to address Joint Consumer Advocates’
argument that it is “unjust and unreasonable to charge ratepayers for the acquisition of
years of capacity that is not needed to address the reliability shortfall and serves no cost-
efficiency or other economic purpose.”13 The Order’s acceptance of RBP’s 15-year
procurement terms could unjustly and unreasonably saddle captive ratepayers with some
$13 billion in excessive and unnecessary RBP costs.
Fourth. Finally, the RBP Order is arbitrary and capricious because it fails to engage
arguments that RBP’s lack of locational constraints renders it unjust and unreasonable. The
Order finds that “the volume of capacity that PJM will procure through the RBP auction—
up to 6,831 MW—is relatively small compared with total existing supply in PJM (149
[gigawatts (GW)]), so even if RBP Resources are not located in the exact same Locational
Deliverability Areas [(LDAs)] as new loads, the effect of any locational constraints should
be limited.”14 But downplaying the capacity volumes, in this context, cannot be squared
with the Order’s premise that a BRA shortfall of the same magnitude is a dire reliability
crisis.15 Nor does the Order explain why the absence of locational constraints in the RBP
is immaterial when (1) the Commission’s acceptance of the BRA structure was predicated
12 PJM Filing, Transmittal at 39.
13 RBP Order P 63 & n.90 (citing JCA Protest at 16).
14 Id. P 97.
15 Id. PP 3, 5.
PDF page 5
- 5 -
upon the inclusion of locational constraints; and (2) history shows that zonal capacity price
separation can increase costs to ratepayers by hundreds of millions of dollars. The RBP
resources selected without regard to location may not serve the reliability needs of the
zones where load growth is expected. And under RBP, those resources will participate in
the BRA as price takers and will thereby diminish the effect of the BRA’s locational price
signals for up to 15 years. The Commission cannot dismiss the concerns of Joint Consumer
Advocates (and others) that the RBP’s lack of locational constraints risks burdening
ratepayers with additional capacity, transmission and energy costs that could otherwise be
avoided based on the unsubstantiated and vague contention that such costs will be limited.16
For the above reasons, and as explained in greater detail in Part II of this filing,
below, Joint Consumer Advocates respectfully request that the Commission (1) grant
rehearing of the RBP Order; (2) find unjust and unreasonable the four elements of the RBP
framework identified herein by Joint Consumer Advocates; and (3) direct PJM to
incorporate changes to those elements in any subsequent FPA section 20517 filing PJM
proposes.
I.
STATEMENT OF ISSUES AND SPECIFICATION OF ERRORS
In accordance with Commission Rules of Practice and Procedure 713(c)(1) and
(c)(2),18 the Joint Consumer Advocates provide the following enumerated statement of
issues and specification of errors, including citations to representative Commission and
court precedent on which they rely:
1. The RBP Order errs as a matter of law and is arbitrary and capricious and not based in
substantial evidence in accepting a market-based rate auction structure that exceeds the
16 JCA Protest at 29.
17 16 U.S.C. § 824d.
18 18 C.F.R. §§ 385.713(c)(1)-(2).
PDF page 6
- 6 -
Commission’s statutory authority and is unjust and unreasonable because it permits the
unmitigated exercise of seller side market power. PJM has admitted, and the Order
finds, that pursuant to the RBP’s pay-as-bid structure, sellers are more likely to offer
the expected clearing price than their marginal costs. Accordingly, the RBP
procurement is unlikely to produce competition between sellers based upon their
marginal costs of production and will result instead in unjust and unreasonable rates
that reflect the exercise of seller-side market power and resource offers that game the
RBP’s market price cap. The Commission seeks to defend RBP based upon the number
of potential sellers, but a large number of uncompetitive offers is not the same as
competition. Without incentives for sellers to offer at prices approximating their costs,
there is no reason to expect this auction structure to yield a just and reasonable rate that
approximates what would be produced by fair competition based on the marginal
production costs of the resources bidding into the market.19
2. The RBP Order errs as a matter of law and is arbitrary and capricious and not based in
substantial evidence by accepting a market-based price cap of $555/MW-day absent
evidence that this cap is just and reasonable for the long-term product being procured
and appropriately reflects the financing and other costs minus the expected revenue
streams of resources that will provide capacity in response to RBP (not BRA) price
signals. The RBP Order fails to provide a reasoned explanation based on the record
evidence for accepting an average-weighted $555/MW-day price cap. Instead, it
arbitrarily and capriciously relies upon the market price cap at which resources would
have cleared in the 2028/2029 BRA (but for the imposition of a price collar), even
though the BRA and RBP auction designs are fundamentally dissimilar in numerous
material respects.20
3. The RBP Order errs as a matter of law and is arbitrary and capricious in failing to
respond to Joint Consumer Advocates’ objection that it is unjust and unreasonable to
require ratepayers to pay for 15-year procurements when there is uncontroverted record
evidence that 5-year procurements are sufficient to meet PJM’s needs and RBP’s
purpose of satisfying a near-term resource adequacy shortfall. RBP’s acquisition of 15-
year capacity commitments is unjust and unreasonable because it may increase
ratepayer acquisition costs by as much as $13 billion for no justifiable purpose and
without any commensurate consumer benefit.21
19 5 U.S.C. § 706(2); 16 U.S.C. § 824d; FPC v. Texaco Inc., 417 U.S. 380, 400 (1974); Gulf States Utils. Co.
v. FPC, 411 U.S. 747, 758-59 (1973); Elizabethtown Gas Co. v. FERC, 10 F.3d 866, 870 (D.C. Cir. 1993);
Tejas Power Corp. v. FERC, 908 F.2d 998, 1004 (D.C. Cir. 1990); NCAA v. Bd. of Regents of the Univ. of
Okla., 468 U.S. 85, 109 n.38 (1984); see also Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 27 n.46
(1984).
20 5 U.S.C. § 706(2); 16 U.S.C. § 824d; La. Intrastate Gas Corp. v. FERC, 962 F.2d 37, 44 (D.C. Cir. 1992);
Mich. Wis. Pipe Line Co. v. Fed. Power Comm’n, 520 F.2d 84, 89 (D.C. Cir. 1975); Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Elizabethtown Gas Co., 10 F.3d
866 at 870.
21 5 U.S.C. § 706(2); 16 U.S.C. § 824d; State Farm, 463 U.S. 29; TransCanada Power Mktg. Ltd. v. FERC,
811 F.3d 1, 12 (D.C. Cir. 2015); Constellation Mystic Power, LLC v. FERC, 45 F.4th 1028, 1058 (D.C. Cir.
2022); Citadel FNGE Ltd. v. FERC, 77 F.4th 842, 856 (D.C. Cir. 2023).
PDF page 7
- 7 -
4. The RBP Order errs as a matter of law and is arbitrary and capricious and is unjust and
unreasonable in accepting an RBP procurement structure that does not incorporate
locational constraints for offering resources. This constitutes an impermissible
departure from the Commission’s approval of the BRA (which required such
constraints), is not reasoned decision making, and is likely to result in excessive
capacity costs due to the non-deliverability of the resources to areas of need, related
and unnecessary increases in energy and transmission costs, and the acquisition of
resources not suited to meet the region’s reliability needs.22
II.
REQUEST FOR REHEARING
A.
The Commission’s approval of RBP exceeds its authority to rely
on competition to set just and reasonable market-based rates
because RBP permits and incents the exercise of seller-side market
power.
The RBP Order finds that PJM’s “pay-as-bid”23 auction “process for selecting RBP
Resources . . . [is] just and reasonable.”24 The Order accepts this pay-as-bid approach
despite RBP’s “lack of direct market power screens or mitigation.”25 The Commission’s
determination is unsustainable because the RBP’s pay-as-bid resource selection process
permits—and will likely result in—the unmitigated exercise of seller-side market power.
In “a pay-as-bid procurement [such as RBP] each selected resource is compensated
based on its individual offer rather than a market-clearing price established by the marginal
resource.”26 As proposed, RBP nowhere requires sellers to bid their own production costs
and nothing prevents them from “offer[ing] the expected clearing price” of $555/MW-
22 5 U.S.C. § 706(2); 16 U.S.C. § 824e; Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 212-13 (2016);
State Farm, 463 U.S. 29; PJM Interconnection L.L.C., 117 FERC ¶ 61,331, P 68 (2006) (RPM Order),
granting reh’g in part, 119 FERC ¶ 61,318, reh’g denied, 121 FERC ¶ 61,173 (2007), pet. for review denied
sub nom., Pub. Serv. Elec. & Gas Co. v. FERC, 324 Fed. Appx. 1 (2009); PJM Interconnection, L.L.C., 197
FERC ¶ 61,019, P 109 (2026); Citadel FNGE Ltd, 77 F.4th at 856.
23 RBP Order P 57; see also Croop Aff. ¶ 6.
24 RBP Order P 74.
25 Id. P 98. See also PJM Filing, Transmittal at 66 (“[n]o direct market power screens or mitigation are being
proposed for the RBP”).
26 PJM Filing, Transmittal at 68 & n.171 (quoting Croop Aff. ¶ 32).
PDF page 8
- 8 -
day.27 Indeed, PJM’s own supporting witness concedes that, “[i]n a pay-as-bid approach,
unlike a uniform clearing price construct where sellers are expected to offer a marginal
cost, sellers are more likely to offer the expected clearing price.”28 The academic and
regulatory literature is to like effect: “pay-as-bid auctions create the incentive for all
suppliers to bid the expected market-clearing price, rather than submitting bids reflecting
each facility’s individual marginal costs.”29 Tellingly, the Order agrees: “as both PJM and
protesters note, sellers are theoretically less likely to offer near their marginal costs in a
pay-as-bid auction.”30
The Commission’s approval of RBP violates basic tenets governing the use of
competitive procurement to set just and reasonable rates under the FPA. The Supreme
Court has held that “the Commission lacks the authority to place exclusive reliance on
market prices,”31 explaining that the “prevailing price in the marketplace cannot be the
final measure of ‘just and reasonable’ rates mandated by the [FPA].”32 The Supreme Court
has also found that the “directives contained in [sections] 205 [and] 206,” to ensure the
justness and reasonableness of any sale of electric energy for resale in interstate commerce,
27 Id. at 71 & n.184 (quoting Croop Aff. ¶ 33).
28 Id. (emphasis added). As the Order explains PJM intends to run the RBP procurement mechanism with a
“levelized procurement cost of all selected RBP Sell Offers not [to] exceed a maximum willingness to pay
of $555/MW-day, on a MW-weighted average basis over all delivery years of the RBP.” RBP Order P 56;
see also Croop Aff. ¶ 6.
29 Susan Tierney, Ph.D., Todd Schatzki, Ph.D. and Rana Mukerji, Uniform-Pricing versus Pay-as-Bid in
Wholesale Electricity Markets: Does it Make a Difference? at 18, Analysis Group (Mar. 2008) (original
emphasis),
https://www.nyiso.com/documents/20142/2268609/uniformpricing_v_payasbid_tierneyschatzkimukerji_20
08.pdf/7b93c886-e3ce-82cc-2dfc-b36ae96efa21; see also Electricity market design, European Commission
(last visited Oct. 20, 2026) (“In the pay-as-bid model, producers (including cheap renewables) would simply
bid at the price they expect the market to clear, not at zero or at their generation costs.”),
https://energy.ec.europa.eu/topics/markets-and-consumers/electricity-market-design_en.
30 RBP Order P 75.
31 FPC v. Texaco Inc., 417 U.S. at 400.
32 Id. at 397.
PDF page 9
- 9 -
include the “responsibility to consider . . . the anticompetitive effects of regulated aspects
of interstate utility operations.”33 Accordingly, and as the D.C. Circuit has explained, it is
only “when there is a competitive market [that] [the Commission] may rely upon market-
based prices in lieu of cost-of-service regulation to assure a ‘just and reasonable’ result.”34
In other words, market-based procurement is not an end in itself, but is permissible only in
circumstances that make it “rational to assume” that competition will produce a price “close
to marginal cost, such that the seller makes only a normal return on its investment.”35
The Order does not identify, nor does the record contain, supporting evidence
making it reasonable to assume that the resulting RBP procurement prices will be the result
of true price competition or will reflect the marginal cost of the resources to be procured.
The Order cites no judicial or Commission precedent in support of its approval of RBP as
a pay-as-bid auction36 where sellers “are . . . likely to offer the expected clearing price” as
opposed to their marginal cost.37 The Order does not address Joint Consumer Advocates’
objection that the RBP is an unlawful market-based rate when measured against the
standards of Texaco, Elizabethtown, and their progeny.38 While the Order dismisses these
objections to RBP as “theoretical,” it is beyond purview that sound economic theory
33 Gulf States Utils. Co. v. FPC, 411 U.S. at 758-59.
34 Elizabethtown Gas Co., 10 F.3d at 870.
35 Id. (quoting Tejas Power Corp., 908 F.2d at 1004). See also PJM, Revisions to Reliability Pricing Model,
Transmittal Letter at 74 & n.225, PJM Interconnection, L.L.C., Docket No. ER25-682 (Dec. 9, 2024),
eLibrary No. 20241209-5207 (“The Commission uses a market-based approach to wholesale electric
regulation, reasoning that, in a ‘competitive market, where neither buyer nor seller has significant market
power, it is rational to assume that the terms of their voluntary exchange are reasonable, and specifically to
infer that price is close to marginal cost, such that the seller makes only a normal return on its investment.’”
(quoting Tejas Power Corp., 908 F.2d at 1004)).
36 RBP Order P 75.
37 PJM Filing, Transmittal at 71 (quoting Croop Aff. ¶ 33).
38 Cf. RBP Order P 75 with JCA Protest at 17-25.
PDF page 10
- 10 -
predictive of anticompetitive behavior is centrally relevant to the Commission’s exercise
of its ratemaking authority to ensure just and reasonable and not unduly discriminatory
rates.39 The Order fails to demonstrate that RBP will be a fair and competitive procurement
process free of the exercise of seller-side market power.40
RBP’s shortcomings are manifest when compared against PJM’s standard auction
capacity procurement mechanism, the BRA. In contrast to the RBP, “the objective of [the
BRA is] to procure the least-cost, competitively-priced combination of resources necessary
to meet the region’s reliability objectives.”41 The Commission has found the BRA design
to be just and reasonable because it is intended to ensure competition and mitigate seller-
side market power by myriad means.42 The BRA includes must-offer resource obligations,
market seller resource offer caps, a market price cap, and oversight of bids/bidding by the
Independent Market Monitor (IMM), designed to discipline seller-side market power.43 A
central premise of the design is that capacity sellers are expected to bid their own marginal
costs. In accepting the BRA construct and its single clearing price model, the Commission
39 See, e.g., Transmission Pol’y Study Grp. v. FERC, 225 F.3d 667, 689 (D.C. Cir. 2000), aff’d sub nom.,
N.Y. v. FERC, 535 U.S. 1 (2002).
40 RBP Order P 75.
41 N.J. Bd. of Pub. Utils. v. FERC, 744 F.3d 74, 101 (3d Cir. 2014).
42 See RPM Order P 76.
43 The forward-looking BRA was the product of a settlement with “design features [intended to] discourage
the exercise of market power and market manipulation generally. Specific mitigation rules and increased
competition from new entry are the most important design elements in this regard.” Id. P 6. It must be
emphasized that Joint Consumer Advocates do not concede that the Reliability Pricing Model (RPM) is at
present competitive or just and reasonable. As a subset of the Joint Consumer Advocates have shown in their
pending complaint in FERC Docket No. EL25-18-000, there is inadequate new entry to mitigate the market
power of incumbent resources and inadequate measures to mitigate that market power. Among other things,
demand-side resources should be subject to a must-offer obligation to avoid the exercise of physical and
economic withholding. RBP fails to provide even the less-than-acceptable protections in the current
RPM/BRA structure.
PDF page 11
- 11 -
found that “under this model, the generator has the proper incentive to bid the lowest price
that covers its marginal cost.”44
The RBP includes none of the BRA’s approved mitigation measures. In something
of an understatement, the Order acknowledges that RBP “lack[s] . . . direct market power
screens or mitigation.”45 In fact, there is nothing in the approved design that requires RBP
sellers to bid their own production costs and nothing that prevents them from “offer[ing]
the expected clearing price.”46 A seller’s ability to bid successfully unconstrained by its
competitors’ cost of production is a paradigmatic example of the exercise of seller-side
market power.47 Here, every resource eligible to offer into the RBP can bid to raise prices
to the $555/MW-day average-price cap regardless of its marginal cost or that of its
competitors. In short, resources bidding into the RBP will be engaged in a gaming strategy
rather than price competition.
The Order proffers a series of assertions purporting to show that the RBP construct
is just and reasonable and “the exercise of market power is unlikely.”48 None are
convincing.
44 RPM Order P 141 n.101 (quoting 113 FERC ¶ 61,278, P 43); see also Croop Aff. ¶ 33 (in a “uniform
clearing price construct” such as the BRA “sellers are expected to offer [at their] marginal cost”).
45 RBP Order P 98. See also PJM Filing, Transmittal at 66 (“[n]o direct market power screens or mitigation
are being proposed for the RBP”).
46 PJM Filing, Transmittal at 71 (quoting Croop Aff. ¶ 33).
47 A seller that can bid the market price rather than its own marginal cost of production possesses “[m]arket
power [because it has] the ability to raise prices above those that would be charged in a competitive
market.” NCAA v. Bd. of Regents, 468 U.S. at 109 n.38; see also Jefferson Parish Hosp. Dist. No. 2, 466
U.S. at 27 n.46 (“As an economic matter, market power exists whenever prices can be raised above levels
that would be charged in a competitive market.”); William M. Landes & Richard A. Posner, Market Power
in Antitrust Cases, 94 Harv. L. Rev. 937, 939 (1981) (“A simple economic meaning of the term ‘market
power’ is the ability to set price above marginal cost.”). The Commission’s position is to like effect. A
“resource[] [that can] increase prices in a specific area . . . [has] the ability to exercise market power.”
FERC Office of Energy Policy and Innovation, Energy Primer A Handbook for Energy Market Basics at 72
(Dec. 2023), https://www.ferc.gov/media/energy-primer-handbook-energy-market-basics.
48 RBP Order P 98. See also id. P 75.
PDF page 12
- 12 -
First, the Order dismisses the “theoretical drawback” of sellers offering the
expected clearing price as opposed to their marginal costs of production based upon “the
Charles River Associates Survey Results indicating strong seller interest in the RBP
auction.”49 Even if true, this is a legally insufficient response. The Supreme Court has held
that Commission cannot rely upon competition alone as the basis for finding the RBP just
and reasonable.50 That is particularly true here, where the design of the “market” facilitates
uncompetitive conduct.
The Order’s dismissal of market power concerns rests entirely upon a single
assertion in PJM’s transmittal filing that “the exercise of market power is unlikely if even
a portion of the more than 130 GW of supply identified in the Charles River Associates
Survey Results decides to participate and drive down prices.”51 But this is pure surmise
and is contradicted by PJM’s own statement two pages later that bidders are “more likely
to offer the expected clearing price.”52 A collection of uncompetitive offers, no matter how
numerous, does not constitute competition capable of producing just and reasonable prices.
Moreover, any supposition that the number of potential suppliers will drive down
offer prices, because suppliers will want to make sure their offers clear, ignores other
49 Id. P 75. The Charles River Associates (CRA) Survey Results (RBP Order P 11 & n.17) refers to a seven-
page slide deck summarizing the results of CRA’s request for information (RFI) concerning PJM’s proposed
reliability backstop procurement. Charles River Associates, PJM Reliability Backstop RFI Summary (May
27,
2026)
(CRA
RFI
Summary),
https://www.pjm.com/-/media/DotCom/committees-groups/cifp-
rbp/2026/20260527/20260527-informational-only---reliability-backstop-rfi-summary---charles-river-
associates.pdf.
50 FPC v. Texaco Inc., 417 U.S. at 400; accord Elizabethtown Gas Co., 10 F.3d at 870. PJM admits that
RBP’s design leaves it powerless to protect against the exercise of seller-side market power. “Given offers
will likely have less variation and information underlying offers it can be difficult and ineffective to
determine offers exhorting market power.” PJM Filing, Transmittal at 71 (quoting Croop Aff. ¶ 33). But this
is no defense where the “difficult[y]” PJM faces is a consequence of its having proposed an inherently anti-
competitive procurement structure.
51 See RBP Order P 98. See also PJM Filing, Transmittal at 69.
52 PJM Filing, Transmittal at 71.
PDF page 13
- 13 -
aspects of the RBP auction structure. The RBP, as proposed, does not clear resources
strictly in offer price order. Rather, it prioritizes offers for resources that can interconnect
and become commercially operational quickly—a significantly more limited set of
resources.53 According to the CRA presentation, most potential supply resources are still
in the early permitting stages and are targeting commercial operation dates in the early
2030s.54 Only about 80 projects had anticipated commercial operation dates from 2026
through 2029, compared to more than 260 from 2030 through 2033.55 So, even if these
forecasts are correct, they demonstrate that resources that can be built quickly will be in
short supply. And because the RBP includes no resource offer caps, suppliers may offer
those resources at prices well above $555/MW-day and still be confident of clearing if
other resources offer at prices below $555/MW-day.
The Order also ignores other record evidence that undermines reliance on the CRA
RFI data to claim that the RBP will function as a competitive solicitation. One of PJM’s
witnesses alleged that the RFI’s identification of a “large set of potential supply to
participate in the RBP . . . allows the RBP to function more like a competitive
solicitation.”56 The phrase “more like” is an implicit concession that the RBP will not be a
53 The set is even more limited than it otherwise would be because the RBP Order unreasonably accepts
PJM’s disqualification of resources—such as demand resources—that could come on line quickly but may
not be able to commit to remain operational through the 2042/2043 delivery year. See RBP Order P 32
(“Demand Resources and [Distributed Energy Resources] Aggregators without identified sites and a 15-
year agreement in place cannot be RBP Resources.”).
54 CRA RFI Summary at slide 6; see also RBP Order P 94 (“[Joint Consumer Advocates] states that only
about 80 of the 397 projects identified in the Charles River Associates Survey Results claim an ability to
achieve commercial operation by the 2028/2029 delivery year and only 3% of all projects are under
construction.”).
55 Id.
56 Croop Aff. ¶ 35 (emphasis added). The witness fails to explain why she believes there will be a large set
of potential bidders in the RBP. The RBP will secure resources by order of delivery year (and then cost)
with priority beginning in the 2028/2029 Delivery Year. PJM Filing, Transmittal at 75. Only about 80 of
the 397 projects identified by CRA claim an ability to achieve commercial operation by this date and only
PDF page 14
- 14 -
price-competitive solicitation. Regardless of whether RBP attracts many bidders or few,
the record provides no support for the Order’s supposition that these will be competitive
bids. The record evidence points in one direction only. Whatever resources can fill the
immediate need, those with marginal costs less than $555/MW-day will have every
incentive to bid somewhere around the expected clearing price as opposed to their marginal
costs. 57 According to the PJM IMM, the “RBP’s use of a pay as bid approach coupled with
the failure to include market power mitigation will result in the exercise of market
power.”58
Second, the Order contends that “PJM’s proposed average-price cap of $555/MW-
day further disciplines costs by increasing the risk that high offers do not clear.”59 Far from
being a mitigation measure, the $555/MW-day average-price cap is integral to the ability
of RBP bidders to game the procurement with offers targeted at the price cap and thereby
exercise seller-side market power. The average-price cap permits offers at—or above—
that price, and in no way guarantees price competition among resources whose marginal
costs are below that price. Indeed, the Order concedes that sellers are “less likely to offer
near their marginal costs in a pay-as-bid auction than in a single-price auction.”60
As explained in the next section, the Order also fails to show that the $555/MW-
day “maximum willingness to pay” benchmark is itself just and reasonable or will lead to
3% of all projects are under construction. CRA RFI Summary at 6. And the eligibility of those projects to
bid into the RBP is unknown, as is the accuracy of the information provided to CRA.
57 PJM Filing, Transmittal at 71 (quoting Croop Aff. ¶ 33).
58 Protest of the Independent Market Monitor for PJM at 25 (Aug. 21, 2026), eLibrary No. 20260821-5317
(IMM Protest).
59 RBP Order P 98. See also id. P 75.
60 Id. P 75.
PDF page 15
- 15 -
just and reasonable auction prices. What the Commission must—but fails to—show is that
there is a meaningful relationship between PJM’s proposed $555/MW-day average-price
cap and the actual costs of the resources that will be procured. “[T]he prevailing price in
the marketplace cannot be the final measure of ‘just and reasonable’ rates mandated by the
[FPA].”61 The Order makes no showing that the RBP as approved, including the
$555/MW-day average-price cap, will create meaningful cost-based price competition
between and among offering resources.62 PJM itself admits that this is unlikely, as it is in
the economic self-interest of bidders to offer somewhere around the expected clearing
price.63
In summary, the Commission’s approval of RBP exceeds its statutory authority to
approve market-based rates for wholesale sales of capacity. RBP leaves consumers at the
mercy of suppliers who, unconstrained by resource price competition or any other
meaningful mitigation measures, have every incentive and opportunity to bid as close to
the price cap as possible. And bidders will be operating in an admittedly supply-constrained
environment, subject only to a wholly arbitrary “willingness to pay” provision at an
average (and potentially higher) $555/MW-day capacity price untethered to any selected
resource’s actual cost minus its energy and ancillary services revenues. On the instant
record, the Order’s approval of RBP exceeds the Commission’s authority under the FPA
to authorize market-based rate transactions. RBP is demonstrably unjust and unreasonable,
61 FPC v. Texaco, 417 U.S. at 397.
62 See Elizabethtown Gas Co., 10 F.3d at 870 (it is only “when there is a competitive market [that] [the
Commission] may rely upon market-based prices”).
63 PJM Filing, Transmittal at 71 (quoting Croop Aff. ¶ 33).
PDF page 16
- 16 -
contrary to controlling precedent, an invitation for the abuse of seller market power, and a
burdening of ratepayers with billions in unjust capacity charges.
B.
The Order provides no reasoned explanation for approving
PJM’s proposed $555/MW-day price cap.
The RBP Order asserts that “in establishing the value for the maximum willingness
to pay in the RBP, PJM reasonably relied on the value of the RPM price cap that the
Commission accepted in January and reaffirmed in July.”64 “[T]here is no question the
Commission may attach precedential, and even controlling weight to principles developed
in one proceeding and then apply them under appropriate circumstances in a stare decisis
manner.”65 But application of precedent is warranted only if “the factual composition of
the case to which the principle is being applied bear[s] something more than a modicum of
similarity to the case from which the principle derives.”66 There is no “modicum of
similarity” between PJM’s BRA and RBP. Accordingly, the Commission’s reliance on
PJM’s borrowing of the recent BRA market price cap for purposes of RBP is unjustified
and inadequately reasoned. Because the Order provides no other explanation for its
acceptance of the price cap it fails to “articulate a satisfactory explanation for its action,
including a ‘rational connection between the facts found and the choice made.’”67
PJM proposed the $555/MW-day average-price cap as just and reasonable because
it corresponds to the “uncollared price cap based on Point 1 of the VRR curve for the
64 RBP Order P 74.
65 La. Intrastate Gas Corp. v. FERC, 962 F.2d at 44 (alteration in original) (quoting Mich. Wis. Pipe Line
Co., 520 F.2d at 89).
66 Id. (alteration in original) (quoting Mich. Wis. Pipe Line Co., 520 F.2d at 89); see also Me. Pub. Serv.
Co. v. FERC, 964 F.2d 5, 9 (D.C. Cir. 1992).
67 State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
PDF page 17
- 17 -
2028/2029 Delivery Year BRA.”68 PJM asserted that the “willingness to pay for a 15-year
commitment should not exceed the amount that load would be willing to pay for a single-
year commitment under the RPM framework.”69 The Order agrees and finds that this price
cap represents a proper balance of resource acquisition needs and ratepayers’ willingness
to pay.70
But in fact, as Joint Consumer Advocates argued in their Protest, the willingness to
pay for a 15-year commitment—and the price that resources should be willing to accept, if
guaranteed for 15 years—should be substantially less than the corresponding amounts for
a one-year commitment.71 That is true as a general matter, as 15-year price certainty
reduces supplier risk and eases financing.72 But it is particularly true where the reliability
need is concentrated in the early part of the period, when the one-year commitment would
occur. In that context, the one-year commitment reflects a scarcity price that simply should
not be expected to apply across the full 15-year term. The Order nowhere addresses Joint
Consumer Advocates’ argument nor explains why a willingness to pay for a one-year
commitment when scarcity is greatest should be commensurate with the willingness to pay
for a 15-year commitment that may extend well beyond the end of any supply crisis.
Additionally, the BRA and RBP price caps are fundamentally different. As it is
used in the BRA structure, Point 1 of the VRR curve for the 2028/2029 Delivery Year is a
68 PJM Filing, Transmittal at 62.
69 Id. at 64.
70 RBP Order P 74.
71 JCA Protest at 25.
72 RBP Order P 76 (“As PJM explains, long contract terms create revenue certainty for RBP Resources and
generally can reduce financial and development risk and may improve financing opportunities through
lower capital costs or more favorable financing terms.”).
PDF page 18
- 18 -
hard cap. Load would never under any outcome pay more than the $555/MW-day fixed
price cap. And it is a fail-safe measure employed in the context of a single-price-auction
that incentivizes resources to offer prices close to their marginal costs. In contrast, as used
in the RBP, the $555/MW-day price is likely harmful to ratepayers because it allows sellers
to exercise market power and bid the cap price as opposed to their marginal cost of
production. And it is a “soft” price cap that binds only on average, meaning that ratepayers
are subject to paying a selected resource’s “as bid” offer price even if it exceeds $555/MW-
day and no matter by how much it exceeds the resource’s marginal costs. Moreover, it is
plausible that ratepayers may pay more than $555/MW-day for RBP-acquired capacity,
even on average. This is because the RBP’s actual $/MW-day average-price cap will
increase to the extent any resource or combination of resources that bid less than
$555/MW-day fail to enter commercial operation or cease operation prior to the end of
their RBP commitment term.
As Joint Consumer Advocates explained, the possibility that ratepayers may pay
more than an average acquisition price of $555/MW-day is a matter of simple mathematics
and can be shown through the following example.73 Assume, for simplification purposes,
that the RBP procures a total of 5,000 MW at an average price of $555/MW-day. Assume
further that 1,000 MW of load has bid in at a price of $400/MW-day: a price higher than
the 2028/2029 Delivery Year $325/MW-day price collar but sufficiently below the
$555/MW-day average price to facilitate being selected. Assume further that the selected
low-price load does not enter commercial operation. The loss of this load would cause the
73 JCA Protest at 26-27.
PDF page 19
- 19 -
actual RBP average price to increase to $593.75/MW-day.74 This outcome is not
implausible; PJM recognizes that RBP committed resources may fail to achieve
commercial operation for sundry legitimate reasons including the lack of necessary
Network Upgrades.75 Over the 15-year RBP commitment term, the price increase in this
example results in roughly $850 million in gross costs beyond what “load would be willing
to pay” as measured against PJM’s own standard.76 Again, the Order nowhere to comes to
grips with Joint Consumer Advocates’ showing that the BRA’s hard price cap is
fundamentally different and more ratepayer protective than the RBP’s soft price cap.
The Commission’s approval of PJM’s borrowing of Point 1 of the VRR curve is
likewise inapposite because it is a reference cost grounded in the estimated CONE for a
CT, and is the market price cap in the BRA where bidders are expected to offer at their
marginal cost of production.77 By comparison, the RBP has no reference resource or VRR
curve, nor is it anticipated that bidders will bid their cost of production.78 Unlike the BRA,
74 An RBP acquisition of $555/MW-day multiplied by 5,000 MW equals $2,775,000 per day in capacity
charges. Removing 1,000 MW of committed resources at $400/day results in $2,375,000 per day in capacity
charges ($2,775,000 minus $400,000), now spread over 4,000 MW of resources. This results in a
$593.75/MW-day average price: an increase of $38.75/MW-day over the soft cap of $555/MW-day.
75 PJM Filing, Attach. D, Affidavit of Ms. Gwen Kelly ¶¶ 10-11 (Due to a variety of RBP project development
risks, “PJM concluded that resources seeking RBP commitments present risks that a committed resource may
fail to achieve commercial operation or experience delays in reaching commercial operation.”); see also PJM
Filing, Transmittal at 60 (excusing from RBP shortfall charges RBP resources that fail to meet their
commercial operation dates solely because of Network Upgrade issues).
76 While in some circumstances there may be charges imposed on resources that fail to achieve commercial
operation, those charges are limited, and such shortfall charge amounts are unlikely to overcome the cost
increase described here.
77 “PJM states that the choice of a CT plant as the Reference Resource is consistent with criteria that PJM
has used in previous Periodic Reviews, including: (1) feasibility to build; (2) whether the resource is an
economic source of incremental capacity; and (3) whether the resource’s Net CONE can be accurately
estimated. [The Commission] find[s] that PJM reasonably supports its conclusion that a CT plant meets these
criteria because it is feasible to build and offers an economically viable source of incremental capacity.” PJM
Interconnection, L.L.C., 194 FERC ¶ 61,049, P 16 (footnote omitted), on reh’g, 196 FERC ¶ 61,007 (2026).
78 PJM Filing, Transmittal at 71 (quoting Croop Aff. ¶ 33).
PDF page 20
- 20 -
PJM will not undertake to ascertain whether any RBP offer reflects the resource’s cost of
production.79 A review of PJM’s proposed gating criteria confirms that PJM’s offer review
will be limited to a “demonstrat[ion] that the proposed resource will be successfully
completed and able to provide capacity.”80
The Order’s sole justification for the RBP’s $555/MW-day price cap is that “PJM
reasonably relied on the value of the RPM price cap that the Commission accepted” for the
2028/2029 BRA.81 But that reliance is not reasonable. There is nothing reasonable—let
alone consistent with record evidence—about plucking a figure from the BRA construct
and applying it to the dissimilar context of the RBP. The Order fails to show any rational
connection between the 2028/2029 BRA price cap and its application to the RBP, including
that a $555/MW-day price bears any meaningful relationship to the marginal costs of
production of the resources RBP will procure.82 Worse, the Order takes from the BRA
construct a price cap that was not even made effective for the BRA itself. The Order does
not grapple with the Commission’s own finding that a $325/MW-day price cap is just and
reasonable, much less explain why the RBP price cap should be 70% higher despite RBP
providing a more than a decade of additional price certainty beyond what the BRA offers.
As the Order itself recognizes, long-term revenue certainty reduces supplier risk and
financing costs.83 While the implication of that (correct) assertion is obvious, the Order
does not come to grips with the corollary that any cost-based price cap should be lower (or
79 Id. at 66 (“No direct market power screens or mitigation are being proposed for the RBP.”).
80 Id. at 71.
81 RBP Order P 74.
82 Elizabethtown Gas Co., 10 F.3d 866 at 870.
83 RBP Order P 76.
PDF page 21
- 21 -
at the very least no higher) in the longer-term RBP than the cap actually applied in the far
shorter-term BRA.
C.
The Order is arbitrary and capricious in failing to address why it
requires 15-year RBP resource commitments when PJM admits
that 5-year contracts eliminate the need for RBP procurement.
An agency’s action is arbitrary and capricious if it “entirely fail[s] to consider an
important aspect of the problem” before it or fails to establish a reasonable connection
between the decisions made and the facts found.84 That is the case here. The problem to be
addressed by the RBP is a near-term capacity shortfall. The Order points to what it
describes as “grave resource adequacy concerns” based on the last two BRAs, for the
2027/2028 and 2028/2029 Delivery Years, having cleared 5% less capacity than the PJM
target reserve margin.85 The RBP is intended to make up this shortfall as soon as possible,
not to address future capacity procurement concerns, and therefore prioritizes the clearing
of resources based on how quickly they can reach commercial operation.86 And consistent
with this focus on near-term resource adequacy, PJM contemplates that bilateral capacity
procurement with a contract term of just five years will eliminate the need for RBP
procurement and will justify reducing the RBP Target by the amount procured bilaterally.87
Despite the near-term nature of the reliability need and an absence of evidence that
the BRA will need RBP supplementation in the long term,88 the Order nonetheless accepts
84 State Farm, 463 U.S. at 43.
85 RBP Order PP 5, 13, 29-30.
86 Id. P 61 (“PJM explains that, in selecting resources from the offer stack, it will first look to RBP
Resources expected to reach commercial operation in the 2028/2029 delivery year,” followed by “resources
offered with an expected commercial operation date in the 2029/2030 delivery year, and will continue
iteratively, up to and including the 2032/2033 delivery year, until the set of offers selected meets the Final
RBP Target.”).
87 Id. P 125.
88 The Order notes that “RBP is a one-time procurement.” Id. P 1. No additional RBP procurements are
proposed nor has the Commission set the issue of possible additional kindred procurements for hearing or
PDF page 22
- 22 -
PJM’s proposal to require a lengthy minimum RBP commitment term—up to 15 years
depending on the resource’s commercial operations date. The Order approves requiring
RBP resources to agree to commitments through the 2042/2043 Delivery Year.89 This
produces two unnecessary, adverse consequences. First, it disqualifies resources that could
attain commercial operation quickly but may not be able to commit to such a long
commitment period. By disqualifying these resources, the Order arbitrarily shrinks the pool
of resources that can compete to satisfy the near-term resource adequacy need to which
RBP is meant to respond. Second, the unsupported minimum term requirement forces
ratepayers to pay supra-competitive RBP prices for an unnecessarily long time, further
burdening ratepayers that are already paying enormous BRA capacity costs.
The Order acknowledges Joint Consumer Advocates’ argument that RBP is unjust
and unreasonable because “PJM’s assertion that a five-year contract is sufficient to satisfy
the RBP’s short-term reliability need cannot be squared with a proposal requiring 15-year
commitments to meet the same need.”90 But it does not meaningfully respond to that
objection, and instead finds the RBP’s 15-year procurement term eligibility requirements
just and reasonable.91 Thus, the Order fails to come to grips with the material evidentiary
contradiction at the heart of RBP. Although the Order has set PJM’s Load Adjustment
process (which includes bilateral offset capacity) for hearing, it does not address that PJM’s
suggested PJM make an FPA section 205 filing to address that issue. Id. P 3. The Commission has sought
additional briefing or a further PJM section 205 filing only to address: (1) the proposed municipal and co-
operative opt out provision, id. P 152; (2) PJM’s proposed cost allocation, including its reliance on Load
Adjustments for that purpose, id. PP 156-57; (3) the assignment of RBP costs to exiting TOs, id. P 179; and
(4) PJM’s proposed buyer-side collateral requirements, id. P 206.
89 Id. P 50.
90 Id. P 40.
91 Id. P 48.
PDF page 23
- 23 -
as-filed proposal undercuts the notion that 15 years of payments are needed to address the
shortfall.92 The proposal is express that Load-Serving Entities can fulfill their share of the
RBP capacity obligation outside of the auction by procuring 5-year bilateral contracts.
Proposed Tariff, Attachment DD, section 18.2(c) explains that “Evidence of Qualifying
RBP Offset [Unforced Capacity (UCAP)] MW” can include “[s]igned bilateral contracts
. . . for at least five Delivery Years with a commercial operation date prior to the start of
the 2032/2033 Delivery Year.” In its Transmittal Letter, PJM calls a five-year term
“balanced,”93 explaining:94
Capacity with a bilateral contract of at least five years is
capacity that will address the reliability shortfall and is not
transitory. Furthermore, a five-year term is not so lengthy as
to undermine the flexibility needed for commercial
contracting or to pose a significant barrier to eligibility for
Qualifying RBP Offset UCAP MW, in recognition of the
fact that bilateral agreements may not need to be longer than
five years to develop new capacity.
In accepting PJM’s proposed 15-year RBP term, the Order ignores and has no answer for
PJM’s own determination that procurements “of at least five years is capacity that will
address the reliability shortfall.”95
The Order itself makes no independent determination that 15-year RBP
procurement terms are necessary to redress PJM’s near-term resource adequacy shortfall.
Indeed, PJM does not contend as much. PJM only supports this facet of the proposal by
pointing to the January 16, 2026, Statement of Principles Regarding PJM that was signed
earlier this year by federal officials on behalf of the White House National Energy
92 Id. PP 150-56.
93 PJM Filing, Transmittal at 39.
94 Id. at 39-40.
95 Id. at 39.
PDF page 24
- 24 -
Dominance Council and the governors of all thirteen PJM states (but not the Mayor of the
District of Columbia), referencing the document’s call to “[p]rovide 15-year price certainty
for new capacity resources.”96 PJM offers no analysis comparing the ratepayer cost of a
15-year term against shorter alternatives. And the CRA RFI survey information PJM relies
upon shows that there are resources willing to agree to shorter terms. Roughly 1/5 (21%)
of the supply-side response projects would agree to terms of 10 years or shorter, and
another 13% of respondents were “flexible” as to term.97 Though Joint Consumer
Advocates identified all of these issues in their protest, the RBP Order addresses none of
them in accepting PJM’s proposal.98
It is beyond question that requiring ratepayers to pay for 15-year procurements
when PJM has admitted that five-year procurements are sufficient to meet its resource
adequacy needs is a material issue. The amount of RBP charges for PJM’s proposed
procurement total of 6,831 MWs at a rate of $555/MW-day x 365 days x 15 years would
be $20,756,847,375. That same procurement for a term of five years would be some
$13 billion less, $6,918,949,125. Given the magnitude of ratepayer charges at issue, the
Commission cannot, in approving 15-year procurement terms, simply airbrush away PJM’s
admission that five-year procurements are adequate to meet its reliability needs for
purposes of RBP.
96 Id. at 48 (quoting National Energy Dominance Council, Statement of Principles Regarding PJM at 1
(Jan. 16, 2026) (Statement of Principles), https://www.energy.gov/documents/statement-principles-
regarding-pjm).
97 CRA RFI Summary at 5.
98 JCA Protest at 14-16.
PDF page 25
- 25 -
It is no answer to say that the lengthy minimum term is justified in exchange for
the revenue certainty that RBP will provide.99 If a shorter term were permitted, the period
of revenue certainty would be commensurately shorter too. The minimum term
requirement is the independent variable. The period of revenue certainty is a function of
the RBP term, not the other way around. The Order offers no basis for concluding that a
15-year minimum term is necessary to meet the reliability need, as even PJM, the
proposal’s proponent, admits that a shorter term will meet the same need, and in a
“balanced” fashion.
It is unjust and unreasonable to charge ratepayers for the acquisition of 10 years of
capacity that is not needed to “address the reliability shortfall” and serves no
cost-efficiency or other economic purpose. In Citadel FNGE Ltd. v. FERC, the D.C. Circuit
explained that the “application of [a PJM auction rule] was unjust and unreasonable not
just because of how much it increased the wholesale rate, but because it caused that increase
for no justifiable purpose” and “without any commensurate [consumer] benefit.”100 That
“comfortably fits the definition of unjust and unreasonable.”101 Where a price increase
“serv[es] no good purpose,” the absence of a reasoned justification for it makes it “unjust
and unreasonable in its own right.”102 The Order acknowledges Joint Consumer
Advocates’ reliance upon Citadel in objecting to 15-year RBP procurement terms based
99 RBP Order P 50.
100 Citadel FNGE Ltd., 77 F.4th at 856.
101 Id.
102 Id. at 857.
PDF page 26
- 26 -
upon PJM’s concession that five-year resource acquisitions are sufficient but fails to
explain why 15-year terms are necessary or provide any ratepayer benefit.103
“It is well established that the Commission must ‘respond meaningfully to the
arguments raised before it.’”104 In accepting PJM’s proposed 15-year RBP procurement
terms while ignoring Joint Consumer Advocates’ objection that the length of these terms
is overly long and unnecessary based upon PJM’s own admission, the Order is arbitrary
and capricious.
D.
The RBP Order errs by failing to require that the RBP
incorporate locational constraints.
While PJM “recognizes there are locational considerations at large for resource
adequacy, and these constraints are modeled in the Reliability Pricing Model[,]”105 RBP
includes no locational procurement signal.106 The Order nonetheless “find[s] that the
proposal’s lack of locational constraints does not render PJM’s overall proposal unjust and
unreasonable.”107 The RBP Order dismisses Joint Consumer Advocates’ (and others’)108
objections that the absence of locational criteria for RBP poses unjustified cost risks for
ratepayers by pointing to the amount of capacity to be procured through RBP:109
Specifically, the volume of capacity that PJM will procure
through the RBP auction—up to 6,831 MW—is relatively
103 RBP Order P 63 & n.90 (citing JCA Protest at 16).
104 TransCanada Power Mktg. Ltd., 811 F.3d at 12 (quoting Pub. Serv. Comm'n v. FERC, 397 F.3d 1004,
1008 (D.C. Cir. 2005)); Constellation Mystic, 45 F.4th at 1058 (the Commission “entirely failed to address
[petitioner’s] argument,” and the “failure to respond meaningfully . . . renders its decision arbitrary and
capricious.” (internal quotations and citation omitted)).
105 Croop Aff. ¶ 8.
106 Id. ¶ 7.
107 RBP Order P 97.
108 See, e.g., IMM Protest at 7-8, 11; see also RBP Order P 92 (summarizing objections to lack of locational
constraints).
109 RBP Order P 97.
PDF page 27
- 27 -
small compared with total existing supply in PJM (149 GW),
so even if RBP Resources are not located in the exact same
Locational Deliverability Areas as new loads, the effect of
any locational constraints should be limited.
That is a strange argument, to say the least, when the same “relatively small” shortfall is
the justification for implementing the RBP procurement—and its commitment of
ratepayers to 15 years of excessive prices—in the first place. The Order makes no effort to
grapple with the contradiction.
Moreover, the Order’s conclusion that the absence of locational constraints will
have “limited” effect is unwarranted speculation that fails to respond meaningfully to the
concern raised by Joint Consumer Advocates that RBP’s lack of locational constraints risks
burdening ratepayers with additional new transmission and energy costs (if the large load’s
arrival on the grid creates congestion) that could otherwise be avoided.110 Significantly,
the RBP Order does not deny Joint Consumer Advocates’ concern—instead, it merely
supposes that any additional burden would be minimal. But that is no answer. Even
assuming, arguendo, that the Commission’s supposition proves accurate, a design
component does not become just and reasonable because the unjustified burden placed on
ratepayers is “limited.”
In any event, there is no basis for assuming that any such effect will be small. If
RBP Resources cannot reach the LDAs with new large loads, price separation is possible
(if not likely), in which case ratepayers would be burdened with potentially hundreds of
millions of dollars in increased capacity costs as well as additional new transmission and
energy costs that could be avoided or ameliorated through the use of a locational
110 JCA Protest at 29.
PDF page 28
- 28 -
procurement signal.111 In the 2024/2025 BRA, price separation in the Delmarva Power and
Light Zone resulted in “PJM spend[ing] an additional $182.8 million to procure just 1.9
per cent more capacity.”112
The Commission knows that the absence of locational considerations for purposes
of resource acquisition can result in otherwise avoidable adverse rate and reliability
consequences. In approving the current RPM construct, the Commission found “that the
locational pricing phase-in provisions of the settlement as proposed are just and
reasonable.” These BRA locational pricing provisions “address[ed] the Commission’s
concerns that appropriate price signals are available to provide incentives to construct
facilities necessary for regional reliability by assuring that the market value of resources
used to meet the capacity requirements reflect actual deliverability and availability of the
capacity resource within the specific region relying on that resource.”113 Yet the RBP Order
will nullify the very locational price signals that the Commission has found important to
the BRA. RBP resources will participate in the BRA as price takers. Consequently, the
roughly seven GW of non-locationally-procured RBP capacity will displace a
corresponding amount of BRA capacity responding to locational price signals.
In its recent order addressing PJM’s Interim Resource Adequacy Service (IRAS)
proposal the Commission expressed “concern[] that PJM’s proposal does not take into
111 See, e.g., Answer and Motion for Leave to Answer of the Independent Market Monitor for PJM at 27-28
(Sep. 25, 2026), eLibrary No. 20260925-5208 (IMM Answer) (quoted infra).
112 Md. Off. of People’s Couns. v. FERC, 164 F.4th 920, 925 (D.C. Cir. 2026).
113 RPM Order P 68.
PDF page 29
- 29 -
account locational or deliverability considerations for [Bring Your Own New Capacity
(BYONC)] resources.”114
[U]nder PJM’s existing Tariff, PJM identifies LDA
Reliability Requirements, which require sufficient capacity
to be inside or deliverable to the LDA based on transmission
constraints. Under PJM’s proposal, the New Large Load
would not be subject to IRAS, and its load would not be
counted towards the Eligible New Large Load amount for its
[Electric
Distribution
Company
(EDC)]
zone/area,
regardless of transmission constraints between the New
Large Load and the BYONC resource, which could
exacerbate the resource adequacy shortfall in the New Large
Load’s zone.115
The IMM raised these same concerns in this proceeding.116
PJM will continue to conduct [Capacity Emergency Transfer
Objective (CETO)/Capacity Emergency Transfer Limit
(CETL)] analysis for each capacity market auction. If the
RBP results in procuring capacity that cannot be delivered to
the data center load in such a way that the LDA reliability
needs are met, the LDA where the data center is located
would be forced to procure more capacity in the capacity
market auction. If the new capacity is not available, the LDA
with the data center would pay the maximum price for
capacity (shortage pricing).
* * *
Under the RBP Filing, a data center load in [Baltimore Gas
& Electric (BGE)] would be allowed to procure capacity
located in a distant LDA, e.g. [Commonwealth Edison
Company (ComEd)]. BGE, located within the [Southwest
Mid-Atlantic Area Council (SWMAAC)] LDA has been one
of the constrained LDAs in PJM. In this scenario, BGE
LDA’s load would increase without offsetting generation
and without additional transmission capacity to import
power from outside BGE under emergency conditions. In
this scenario, BGE’s reliability requirement would not be
114 197 FERC ¶ 61,019 P 109.
115 Id.
116 IMM Answer at 27-28.
PDF page 30
- 30 -
satisfied and BGE customers would pay the maximum price
for capacity as a result.
Allowing capacity and load to be added without accounting
for locational resource adequacy would also result in higher
energy market prices and increased transmission costs. In the
example, in the BGE LDA with higher load and lack of
offsetting generation and transmission capacity to import
power would result in higher prices in the energy market.
This would trigger transmission upgrades.
The Order wrongly dismisses these concerns in the RBP context even as it treated
parallel concerns as significant to the BRA and as a reason to reject PJM’s IRAS proposal.
The Order’s refusal to require locational procurement constraints in the RBP is thus an
unexplained departure from precedent.117 While the IRAS decision postdates the RBP
Order, the Commission on rehearing must explain why it dismissed the concern in the RBP
context while crediting it in the IRAS context.
The Order gestures at an argument that locational requirements are not needed
because the RBP responds to an aggregate resource adequacy deficiency, not location-
specific needs. According to the Order, “the RBP is designed to address the PJM Region’s
capacity shortfall, such that it is addressing an effectively region-wide problem.”118 But
even assuming arguendo that this is correct, the Order’s failure to impose RBP locational
constraints cannot be reconciled with the inclusion of locational constraints in the modeling
for PJM’s RPM, which is likewise a region-wide procurement to ensure resource adequacy.
Moreover, the Order’s characterization of RBP as responsive to aggregate region-
wide load growth is contrary to PJM’s characterization of its proposal, which makes crystal
117 Encino Motorcars, LLC, 579 U.S. at 212-13.
118 RBP Order P 97.PDF page 31
- 31 -
clear that RBP is intended to address the enormous amount of projected load growth from
new data centers that is outpacing new supply.119
PJM hosts the largest concentration of data center load in the
world.s “PJM’s load forecast predicts peak load growth of
32 gigawatts [(“GW”)] from 2024 to 2030, 30 GW of which
is projected to be from data centers.” Year-over-year, the
shortfall of capacity supply needed to meet demand (plus a
reasonable reserve margin) has grown despite a net increase
of 1,294.4 MW Installed Capacity (“ICAP”) of supply
between the 2027/2028 and 2028/2029 BRA. In other words,
the addition of new supply has not kept pace with rapid large
load demand growth, thus giving rise to the significant
tightening of the capacity market in recent years and the
subsequent resource adequacy shortfalls. To mitigate the
potential reliability risks associated with resource adequacy
shortfalls, PJM is proposing this RBP as a one-time,
supplementary mechanism to procure additional supply to
meet the resource adequacy needs of the PJM Region.
And there is nothing mysterious about the locations of this load growth. Everyone knows
where the new data center load has materialized within PJM and where it is projected to
grow. And the RBP, in responding to this new large load growth, is addressing even more
concentrated, location-specific load growth than the BRA generally does. If anything, the
RBP context makes locational considerations more, not less, important, than they are in the
BRA—a reality recognized by PJM’s proposal to allocate RBP costs to zones based on
their large load forecasts.120
The Order’s apparent contention that RBP is necessary to meet diverse aggregate
region-wide load growth cannot be reconciled with its own statements to the contrary and
the record evidence. The Commission accepts RBP, in part, because “PJM’s ordinary
119 PJM Filing, Transmittal at 6-7 (footnotes omitted) (emphasis in original).
120 “The initial allocation of RBP UCAP MW to each Electric Distributor zone/area will be based on Load
Adjustments, as set forth in PJM Table B9b from the 2026 PJM Load Forecast, and each zone/area’s share
of the Initial RBP Target of 6,831.3 MW.” Croop Aff. ¶ 46 (with chart of zonal allocations).
PDF page 32
- 32 -
instrument for procuring sufficient capacity to meet PJM’s reliability requirement, the
RPM, has failed to keep pace with the unprecedented influx of large load into the PJM
region in recent years.”121 In excusing RBP’s lack of locational constraints, the Order
apparently ignores the transparent and compelling evidence that PJM’s resource adequacy
shortfall is driven by new data center load and that load growth is projected to occur in
specific zones within PJM. The Order itself states that “[t]he largest driver of the shortfall
was 5,250 MW of load growth forecast for [the 2027/2028 Delivery Year], nearly 5,100
MW of which was due to data centers.”122 The IMM has found that it is new data center
load that is the causal driver of increased capacity prices within PJM.123
While data center growth has occurred over five or more
years, PJM has failed to address the impact of data centers
on the PJM Capacity Market over the last four capacity
auctions. PJM has made its RBP Filing only under direct
pressure from the Commission and the White House and the
PJM governors, among others. It is clear that the current
situation and the current tariff in PJM are untenable and
therefore unjust and unreasonable. The addition of data
center load has resulted in adding $29.4 billion to the cost of
capacity, higher energy costs, higher transmission costs, and
a significant degradation of system reliability.
The White House’s National Energy Dominance Council’s Statement of Principles
Regarding PJM likewise points to new data center load as the causal driver of PJM’s
resource adequacy needs and provides that “PJM should allocate the cost of any new
capacity procured through the aforementioned Reliability Backstop Auction to load serving
121 RBP Order P 29.
122 Id. P 5.
123 IMM Protest at 5.
PDF page 33
- 33 -
entities (LSEs) with new data centers that have not self-procured new capacity or agreed
to be curtailable.”124
Contrary to the Order’s determination that the resource adequacy problem is
region-wide, PJM has provided uncontroverted record evidence of the zones where new
large loads are projected.125 Indeed, the Order recognizes the zonal nature of the problem
in observing that126
it may be just and reasonable for PJM to allocate RBP costs
based on updated load forecast information. PJM could base
the RBP allocation on the difference between the actual load
for 2026/2027 delivery year in each Electric Distributor
zone/area with the most recent 2028/2029 delivery year load
forecast for each Electric Distributor zone/area.
Finally, the Order seeks to defend the absence of locational constraints based on
the “reasonabl[e] assum[ption] that RBP Resources will include anticipated Network
Upgrade costs in their RBP Sell Offers.”127 This assumption is unfounded and stands
reality on its head. Because RBP has no locational constraints, offering resources can bid
regardless of where they are located and, in doing so, seek to avoid Network Upgrade
costs—without regard to whether siting in that location will materially aid PJM in serving
new large loads. Indeed, it is in the economic self-interest of offering resources to do so.
Plainly, the Commission seeks to have PJM pay generators regardless of where they are
located, with no assurance that these resources will meet the resource adequacy needs of
LDAs with forecasted new large loads, while knowing that the failure to impose locational
124 Statement of Principles at 1.
125 Croop Aff. ¶ 46 (with chart of zonal allocations).
126 RBP Order P 159.
127 Id. P 97.
PDF page 34
- 34 -
constraints is likely to increase unnecessarily ratepayer capacity, energy, and transmission
capacity costs.
CONCLUSION
WHEREFORE, for the foregoing reasons, Joint Consumer Advocates respectfully
request that the Commission: (1) grant rehearing of the RBP Order; (2) find unjust and
unreasonable the four elements of the RBP framework identified herein by Joint Consumer
Advocates; and (3) direct PJM to incorporate changes to those elements in any subsequent
FPA section 205 filing PJM proposes.
Respectfully Submitted,
/s/ Susan L. Satter
/s/ Scott H. Strauss
Susan L. Satter
Chief, Public Utilities Bureau
Scott Metzger
Public Utilities Policy Counsel
Kimberly B. Janas
Counsel to the Attorney General
ILLINOIS ATTORNEY GENERAL’S OFFICE
115 South LaSalle Street, 25th Floor
Chicago, IL 60603
susan.satter@ilag.gov
Counsel for the Office of the Illinois
Attorney General
Scott H. Strauss
Peter J. Hopkins
Jeffrey A. Schwarz
Lauren L. Springett
SPIEGEL & MCDIARMID LLP
1818 N Street, NW, 8th Floor
Washington, DC 20036
scott.strauss@spiegelmcd.com
Counsel for Delaware Division of the
Public Advocate, District of Columbia
Office of People’s Counsel, Illinois Citizens
Utility Board, Maryland Office of People’s
Counsel and New Jersey Division of Rate
Counsel
October 29, 2026
PDF page 35
CERTIFICATE OF SERVICE
I hereby certify that I have this day caused the foregoing document to be served
upon each person designated on the official service list compiled by the Secretary in this
proceeding.
Dated on this 29th day of October, 2026
/s/ Lauren L. Springett
Lauren L. Springett
Law Offices of:
SPIEGEL & MCDIARMID LLP
1818 N Street, NW
8th Floor
Washington, DC 20036
(202) 879-4000