On November 30, 2023, the Commission denied the Minnesota Municipal Power Agency’s (“MMPA”) complaint alleging that Northern Natural Gas Company (“Northern”) violated the Natural Gas Act (“NGA”) by refusing to execute an interconnection agreement for MMPA’s planned renewable natural gas (“RNG”) facility in Elk River, Minnesota (“Elk River Project”). The Commission denied MMPA’s complaint without prejudice because the complaint was unripe since Northern has yet to act on MMPA’s interconnection request.
PJM Files Capacity Market Overhaul for Resource Adequacy and Grid Reliability
On October 13, 2023, PJM Interconnection, L.L.C. (“PJM”) submitted two filings with FERC proposing revisions to its Open Access Transmission Tariff (“Tariff”) and its “Reliability Assurance Agreement” (“RAA”) designed to improve resource adequacy and grid reliability. PJM requested the Commission to accept both filings concurrently, with an effective date of December 12, 2023, so that PJM may implement the proposed reforms for the upcoming Base Residual Auction (“BRA”) associated with the 2025/2026 Delivery Year.
FERC Accepts ISO-NE’s Proposal to Treat Electric Storage Facilities as Transmission-Only Assets
On October 19, 2023, FERC accepted ISO New England Inc.’s (“ISO-NE”) proposal to allow electric storage facilities to be planned and operated as transmission-only assets (“SATOAs”) to address system needs identified in the regional system planning process. FERC determined that the ISO-NE’s proposal established a just and reasonable framework for electric storage resources to be considered a transmission asset for regional planning purposes and thus be eligible for cost-based rate recovery.
FERC Accepts Tennessee Gas Pipeline’s New PowerServe Rate Schedule and Authorizes Capacity Lease Agreement with Kinder Morgan
On September 29, 2023, FERC approved Tennessee Gas Pipeline Company, L.L.C.’s (“TGP”) proposal to lease intrastate capacity from Kinder Morgan Texas Pipeline LLC (“Kinder Morgan”) to offer a new hourly transportation “PowerServe” service. According to the parties’ joint application, PowerServe will offer increased flexibility to shippers serving gas-fired power generation facilities that backstop renewable energy sources. Commissioner Danly concurred in part and dissented in part with a separate statement that has not been issued at the time of this article.
After Initiating Credit Risk Show Cause Proceedings in 2022, FERC Finds that CAISO’s, ISO-NE’s, and NYISO’s Tariffs Remain Just and Reasonable but Directs Further Briefing on SPP’s
On September 21, 2023, the Commission issued separate orders on show cause proceedings finding that the existing tariffs of the California Independent System Operator Corporation (“CAISO”), ISO New England Inc. (“ISO-NE”), and the New York Independent System Operator, Inc. (“NYISO”) remain just and reasonable as to their collateral requirements for financial transmission rights (“FTR”) market participants. On the contrary, the Commission continued to find that Southwest Power Pool, Inc.’s (“SPP”) tariff appears to be unjust, unreasonable, and unduly discriminatory and therefore directed further briefing on a list of specific questions or for SPP to explain what changes to its tariff it believes would remedy the concerns identified by the Commission, within 60 days of the order.
Mountain Valley Pipeline To Resume Construction After Supreme Court Vacates Fourth Circuit’s Order Halting Construction
On July 27, 2023, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fourth Circuit’s decision to grant the Wilderness Society’s motions to stay of construction on the Mountain Valley Pipeline (“MVP”) pending that court’s review of the Forest Service’s amended Forest Management Plan. The Supreme Court’s order grants MVP’s emergency application to vacate the Fourth Circuit’s stay orders and permits MVP to resume construction on the pipeline.
State Attorneys General Argue BlackRock is Violating its FERC Blanket Authorization
A group of 17 states, through their Attorneys General (“State AGs”), filed a motion (“Motion”) on May 10, 2023, requesting that the Commission audit and investigate whether BlackRock is acting as an “activist” investor, thereby violating Section 203 of the Federal Power Act (“FPA”) and the Commission’s latest reauthorizations for BlackRock to acquire public utility securities. The Motion comes shortly after Commissioners Danly and Christie issued a joint statement regarding a different investment company, Vanguard Group, Inc. (“Vanguard”), questioning whether Vanguard’s “enormous accumulation” of utility assets may enable it to exercise “profound control” over those utilities.
FERC Addresses Social Cost of Carbon and Environmental Justice Analysis on Remand
On remand from the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), FERC reaffirmed that Rio Grande LNG, LLC’s proposed liquified natural gas (“LNG”) terminal project (“Rio Grande LNG Terminal”) was not inconsistent with the public interest, and that the Rio Bravo Pipeline Company, LLC’s proposed pipeline project (“Rio Bravo Pipeline Project”), as amended, was required by the public convenience and necessity. In doing so, FERC addressed a variety of highly-contested issues, including whether it must apply the social cost of carbon and expand its prior environmental justice analysis. Chairman Phillips concurred, and Commissioner Clements dissented from FERC’s decision.
FERC Partially Accepts ISO-NE Order No. 2222 Compliance Filing, but Expresses Concern that Proposal Could Create Undue Barrier to DERs
On March 1, 2023, FERC partially approved ISO New England’s (“ISO-NE”) proposed tariff revisions in compliance with Order No. 2222, which removed barriers to the participation of distributed energy resource (“DER”) aggregations in the capacity, energy, and ancillary services markets operated by Regional Transmission Organizations and Independent System Operators (“RTO/ISO”). In the order, FERC directed ISO-NE to revise its proposal regarding small utility opt-in requirements, capacity market participation, information and data requirements, and metering and telemetry system requirements. Commissioner Christie dissented from the order arguing that ISO-NE’s proposed metering and telemetry requirements for DER aggregations are reasonable and should be encouraging RTO/ISOs to adopt rigorous measurement and verification (“M&V”) measures, not undercutting them. Commissioner Danly concurred with a separate statement, expressing how this decision underscores his original concerns with Order No. 2222, namely that FERC is interfering in managing RTO activities that, in his view, should be under state jurisdiction. Commissioner Clements also concurred with a separate statement urging ISO-NE to make its proposal open to all DERs, such as behind-the-meter DERs.
D.C. Circuit Upholds FERC Interpretation of PURPA Size Limitation Based on “Send out” to Point of Interconnection
On February 14, 2023, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) upheld FERC’s March 2021 order granting Broadview Solar, LLC’s (“Broadview”) hybrid solar and battery project qualifying facility (“QF”) status (see March 25, 2021 edition of the WER) based on FERC’s interpretation of the Public Utility Regulatory Policies Act of 1978 (“PURPA”). Specifically, the D.C. Circuit determined, among other things, that FERC’s interpretation that a QF owner can use the MW net output at the point of interconnection in determining whether a facility meets the 80 MW statutory maximum for small power production facility QF status under PURPA was reasonable.