2022 was an active year for the hydropower industry, and as 2023 begins, it’s appropriate to review last year’s highlights and forecast the anticipated trends to continue this year.
February 2023
FERC Affirms Burden of Persuasion Rests on Proponents of Transmission Asset Classifications under FERC’s Seven-Factor Test, Notwithstanding Tariff Classifications
By Steven G. Boughton & Russell Kooistra on
Posted in FERC Practice
On January 19, 2023, FERC established that a facility’s classification as transmission or distribution under criteria established in the Southwest Power Pool, Inc.’s (“SPP”) Open Access Transmission Tariff (“Tariff”) can be overcome in a challenge at the Commission if the protestors provide sufficient evidence to call into question the classification under the Tariff criteria. FERC found that once protestors present evidence that the facilities are distribution under FERC’s seven-factor test, the burden of proof shifts back to the filing transmission provider and transmission owner seeking a specific classification under Section 205 of the Federal Power Act to demonstrate its proposed classification under FERC’s seven-factor test. FERC found that GridLiance High Plains, LLC (“GridLiance”), as the applicable transmission owner, failed to carry this burden to demonstrate its facilities at issue were transmission facilities after such a challenge.