On August 31, 2021, FERC denied Cross-Sound Cable Company, LLC’s (“Cross-Sound Cable”) application for incentive rate treatment to create a regulatory asset to recover costs incurred between 2016 and 2021 to comply with Interconnection Reliability Operating Limits (“IROL”) Critical Infrastructure Protection (“IROL-CIP”) costs under Schedule 17 of the ISO-New England (“ISO-NE”) Tariff. Continue Reading FERC Denies Cross-Sound Cable Company’s Application for Incentive Rate Treatment to Comply with IROL-CIP Costs

On August 27, 2021, in Oklahoma Gas and Electric Company v. FERC, Case No. 20-1062, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied petitions for review of FERC’s orders involving the Southwest Power Pool, Inc. (“SPP”) process for reimbursing certain of its customers for transmission system upgrades that those customers paid for pursuant to Attachment Z2 of SPP’s Open Access Transmission Tariff (“Tariff”). The D.C. Circuit’s order upheld FERC’s decision to deny retroactive waiver of Section I.7.1 of SPP’s Tariff—which provides that any billing adjustments must be made within one year after the charges were incurred—thus preventing SPP from implementing the Attachment Z2 revenue crediting process retroactively from 2008-2016. The court also upheld FERC’s orders requiring SPP to refund any charges it previously collected for the 2008-2016 period. Basing its decision on the filed rate doctrine, the court concluded that “the filed rate requirements are a formidable obstacle for entities regulated by FERC that wish to obtain retroactive relief from the terms of their tariff.” Continue Reading D.C. Circuit Denies Petitions for Review; Holds that the Filed Rate Doctrine Prevents SPP from Reimbursing Customers for Historical Transmission Upgrade Costs

On September 7, 2021, FERC staff issued a whitepaper to frame discussions ahead of two technical conferences planning to discuss potential ancillary services reforms.  The whitepaper summarizes approaches that RTOs/ISOs are currently evaluating to reform energy and ancillary services markets to address the need for greater operational flexibility, including increasing shortage prices, procuring higher quantities of existing “traditional” ancillary services products (like an operating reserve demand curve), and creating new ancillary services products. Continue Reading FERC Staff Issues Whitepaper on Energy and Ancillary Services Market Reforms Ahead of Technical Conferences

In June 2021, Senators Lisa Murkowski (R-AK) and Maria Cantwell (D-WA) introduced The Maintaining and Enhancing Hydroelectric and River Restoration Act of 2021, which would establish a tax credit for certain investments in dam safety and environmental improvements at qualified dams and separate tax credit to incentivize the removal of obsolete river obstructions, including nonpowered dams. Continue Reading Senators Murkowski and Cantwell Introduce Bipartisan Hydropower Legislation

On July 14, 2021, the City and County of Denver, Colorado, acting through its Board of Water Commissioners (“Denver Water”), filed a Complaint in the United States District Court for the District of Colorado, requesting declaratory and injunctive relief against Boulder County over the County’s alleged efforts to delay and obstruct Denver Water’s expansion of the Gross Reservoir Hydroelectric Project. Continue Reading Denver Water Files Complaint in Federal Court, Seeking Preemption of Boulder County Regulation Due to FERC Hydroelectric Project License

On July 15, 2021, the Federal Energy Regulatory Commission (“Commission” or “FERC”) issued a Final Rule amending its regulations pertaining to: (1) the information required to be filed with a notice of intent to construct a qualifying conduit facility and (2) the licensing requirements applicable to major projects up to 10 megawatts (MW).  The Final Rule was issued to align the Commission’s regulations with changes to the Federal Power Act (“FPA”) that were made as part of the Hydropower Regulatory Efficiency Act (“HREA”) of 2013. Continue Reading FERC Revises Filing Requirements for Certain Small Hydroelectric Facilities

On July 15, 2021, FERC issued an Advance Notice of Proposed Rulemaking (“ANOPR”) to solicit comments on potential reforms for electric regional transmission planning, cost allocation, and generator interconnection processes. Through public comment, the Commission seeks input on how transmission and interconnection planning and cost allocation procedures can be reformed to facilitate additional renewable energy integration and adjust for increasing demands on the grid. Comments on the ANOPR and replies to Comments are due 75 days and 105 days, respectively, after the ANOPR’s publication in the Federal Register. Following these filings, the Commission may consider whether to issue a formal Notice of Proposed Rulemaking, which would precede any final rule on these issues. Continue Reading FERC Issues Advance Notice of Proposed Rulemaking on Potential Reforms for Electric Transmission Planning, Cost Allocation, and Generator Interconnection Processes

On July 9, 2021, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied in part and granted in part a petition for review of FERC’s orders accepting revisions to PJM Interconnection, L.L.C.’s (“PJM”) Forward Capacity Market (“FCM”). The Petition was filed by the Delaware Division of the Public Advocate, Maryland Office of the People’s Counsel, and the Office of the People’s Counsel for the District of Columbia (“Petitioners”). The Court upheld FERC’s use of a Combustion Turbine (“CT”) plant as the Reference Resource in approving the net Cost of New Entry (“net CONE”) calculation, and found that FERC’s approval of a 10 percent adder on Reference Resource’s assumed energy market offer was arbitrary and capricious. The Court remanded the case for proceedings consistent with its decision on the 10 percent adder. Continue Reading D.C. Circuit Upholds Use of Combustion Turbine as Reference Resource in PJM Capacity Market, Finds 10% Net CONE Adder Arbitrary and Capricious

On June 24, 2021, FERC formally issued a public report that outlined its plan to establish the Office of Public Participation (OPP).  The report stated that the OPP’s mission is to assist the public in learning about and participating in FERC proceedings, and that FERC aims to have the OPP at full operating capacity by fiscal year (FY) 2024. Continue Reading FERC Formally Outlines Office of Public Participation for FERC Proceedings