On December 17, 2021, FERC affirmed a Public Utility Regulatory Policies Act of 1978 (“PURPA”) qualifying facility (“QF”) self-certification for the Shields Valley Solar Facility (“Shields Valley”), a hybrid solar and battery project relying on inverters to limit its net power production capacity. In doing so, FERC reiterated its finding in its Broadview Solar rehearing order that a QF owner can use MW net output at the point of interconnection, taking into account inverter losses and other components to produce electricity, in determining whether a facility meets the 80 MW statutory maximum for QF status. Commissioner James Danly wrote separately in dissent explaining his view that Shields Valley plainly exceeds the statutory capacity limit for a QF. Continue Reading FERC Affirms QF Self-Certification for a Hybrid Solar and Battery Project, Prompting Dissent from Commissioner Danly
On January 5, 2022, FERC denied a motion of the Andrew Kittell Estate (“Kittell Estate”) to drop FERC’s enforcement action against GreenHat Energy, LLC (“GreenHat”) because of an October 1, 2021 revelation that FERC’s decisional staff had improperly communicated with FERC enforcement litigation staff (“Email Exchange”) regarding the GreenHat enforcement proceeding, potentially violating FERC’s Separation of Functions regulations (“January 5 Order”). In the January 5 Order, however, FERC abstained from deciding whether the Email Exchange violated Commission regulations, finding that “the conduct at issue here would not warrant the extraordinary remedy of dismissal,” which sparked a dissent from Commissioner Danly, who “would have explicitly found that the email exchange . . . was inappropriate, ordered the two attorneys barred from all future involvement in this matter, and directed Commission staff to conduct a robust, public investigation with findings to be set forth in a later Commission order.” Continue Reading FERC Denies Motion to Drop Enforcement Action in GreenHat Proceeding, Sparking Dissent from Commissioner Danly
Law360 announced today that Troutman Pepper’s Energy practice was selected as “Practice Group of the Year” for 2021.
With nearly 900 nominations submitted to Law360, we are honored to be nationally recognized for our accomplishments in the energy industry and beyond. Clients rely on our team to resolve critical matters as they arise—from FERC regulation and litigation, to energy transactions, we work closely with clients to develop innovative solutions to their most pressing business challenges.
To read our full press release, click here.
On December 30, 2021, FERC accepted the Midcontinent Independent System Operator, Inc.’s (“MISO”) revisions to its Generator Interconnection Procedures (“GIP”), which MISO proposed to, among other things: (1) classify fuel type change requests made during the three-phase Definitive Planning Phase (“DPP”) of MISO’s generator interconnection study process as a material modification, and (2) allow interconnection customers to request surplus interconnection service earlier in the interconnection study process. As FERC found, MISO’s proposed changes represented a “reasonable compromise” to allow interconnection customers to request an earlier review of fuel change request through the surplus process, while minimizing disruptions to the formal DPP process posed by fuel type changes. Continue Reading FERC Accepts MISO’s Revisions to its Generator Interconnection Procedures Regarding Fuel Type Changes
On December 22, 2021, FERC issued an order on voluntary remand from the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) directing changes to PJM Interconnection, L.L.C.’s (“PJM’s”) reserve market design. FERC’s December 22 order reverses certain changes it previously ordered in May 2020 (“May 2020 Order”). The December 22 order affirmed FERC’s decision in the May 2020 Order to accept PJM’s proposal to consolidate its Tier 1 and Tier 2 Synchronized Reserve Products. However, the December 22 order required PJM to revert back to its currently-effective Reserve Penalty Factors, two-step Operating Reserve Demand Curve (“ORDC”), and a backward-looking Energy and Ancillary Services (“E&AS”) Offset. FERC directed PJM to apply the backward-looking E&AS Offset to the 2023/24 Base Residual Auction (“BRA”), which was previously scheduled to run in January 2022, notwithstanding any resulting delay to the auction schedule. FERC required PJM to submit a revised BRA schedule on compliance. Commissioner Christie issued a concurring opinion, and Commissioner Danly dissented in part. Continue Reading FERC Reverses Certain Changes to PJM Reserve Market in Voluntary Remand Proceeding
On December 16, 2021, FERC ordered Energy Transfer Partners, L.P. and its subsidiary Rover Pipeline, LLC (“Rover Pipeline”) to explain why it should not pay a $40 million civil penalty for alleged violations of the Natural Gas Act, and the pipeline’s certificate order, during construction of its 711 mile interstate natural gas pipeline.
FERC’s Office of Enforcement report (“OE Report”) concluded that in April 2017, crew members employed by Rover Pipeline’s contractors: 1) included diesel fuel, other toxic substances, and unapproved activities in the drilling mud during its horizontal directional drilling operations; 2) failed to adequately monitor the pipeline right-of-way; and 3) improperly disposed of inadvertently released drilling mud that was contaminated with diesel fuel and hydraulic oil. The OE Report alleges that during the construction of a $6.7 billion pipeline project, Rover Pipeline added the toxic, unapproved fluids to combat drilling difficulties and keep up with progress demands.
Rover Pipeline has 30 days to respond to the order, including seeking a modification to the penalty amount. FERC staff will then have 30 days to reply.
A copy of the show cause order is available here.
On December 16, 2021, the Commission issued its final rule on transmission line ratings that reforms both the pro forma Open Access Transmission Tariff (“OATT”) and the Commission’s corresponding regulations in an effort to improve the accuracy and transparency of transmission line ratings. The Commission stated that this rule will more efficiently utilize the transmission grid and help lower costs for consumers. Continue Reading FERC Issues Final Rule on Transmission Line Ratings
On December 3, 2021, Judge Barbara Rothstein of the U.S. District Court for the Western District of Washington dismissed a suit brought by the Sauk-Suiattle Tribe, finding that the district court lacks jurisdiction over the matter. Continue Reading District Court for Western Dist. of WA Dismisses Tribe’s Suit Against Seattle City Light
On October 21, the Federal Energy Regulatory Commission (Commission or FERC) issued an Order to Show Cause and Notice of Proposed Penalty to Ampersand Cranberry Lake Hydro, LLC (Ampersand). Continue Reading FERC Issues Notice of Proposed Penalty to Ampersand Cranberry Lake Hydro
On October 21, the Department of Energy (DOE)’s National Renewable Energy Laboratory (NREL) issued An Examination of the Hydropower Licensing and Federal Authorization Process, in which it examined the various statutory and regulatory requirements applicable to hydropower projects, and how those requirements protect water quality, fish and wildlife, among other things, they can also add to the time and cost of licensing. The report provides quantitative and qualitative analyses, considers the perspectives of developers and regulators, and addresses various studies on hydropower licensing timelines and costs, both in the United States and in other hydropower-producing countries. The report does not propose specific recommendations, but makes a series of key findings that it suggests can be used by policymakers and regulators to engage in informed discussions with project developers and other hydropower stakeholders. Continue Reading Department of Energy Issues Report on Hydropower Permitting