On November 17, 2022, FERC granted a petition for declaratory order (“Petition”) filed by Ameresco, Inc. (“Ameresco”) and its subsidiaries (collectively with Ameresco, “the Ameresco Companies”) requesting exemption from certain “books and records” requirements under the Commission’s Public Utility Holding Company Act of 2005 (“PUHCA”) regulations because its ownership of certain grid-charged battery storage subsidiaries might otherwise have caused Ameresco to lose its automatic “books and records” exemption under PUHCA. FERC granted the Petition, notwithstanding the fact that some of the storage subsidiaries would not otherwise qualify for the non-traditional utility “books and records” exemption, because the “Ameresco Companies’ books, accounts, memoranda, and other records are not relevant to the jurisdictional rates of Ameresco Companies.”

In its Petition, Ameresco explained that the Ameresco Companies have previously been entitled to an automatic exemption from PUHCA because they were holding companies solely with respect to electric utility companies that are qualifying facilities (“QFs”), exempt wholesale generators (“EWGs”), and/or foreign utility companies (“FUCOs”) under PUHCA. Ameresco further explained that it will no longer qualify for the automatic exemption because the Ameresco Companies intend to develop, own, and operate grid-charged battery storage systems that may not satisfy the fossil fuel use restrictions for QFs or will not qualify for EWG status because they will engage exclusively in retail power sales. Further, holding companies of battery storage systems selling exclusively at retail would not qualify for the Commission’s “non-traditional utility” exemption because it is only available when the non-traditional utility is Commission-jurisdictional. In other words, given that the grid-charging nature of the storage resources precluded QF status, and their retail-only use-case precluded EWG, FUCO and “non-traditional utility” status, Ameresco and its subsidiaries would fail to qualify for PUHCA’s narrow regulatory exemptions, thereby subjecting them to PUHCA’s books and records requirements. Accordingly, Ameresco filed the Petition requesting that the Commission find that the storage resources fall within the category of “non-traditional utilities” such that Ameresco and its subsidiaries could remain exempt from these PUHCA requirements.

FERC granted the Petition, finding that the grid-charging battery storage systems “meet the criteria for non-traditional utilities” because none of the Ameresco Companies have captive customers, owns Commission-jurisdictional transmission facilities, or provides transmission services. Accordingly, FERC found that “Ameresco and its current and future subsidiaries are holding companies solely with respect to QFs, EWGs, FUCOs, and non-traditional utilities . . . and thus are exempt” from the Commission’s “books and records” PUHCA regulations.

A copy of the order can be found here.