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On September 9, 2020, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing updated regulations that will establish a one-year period for state agencies or other certifying authorities (“Certifying Agencies”) to act on requests for water quality certifications related to sections 3 and 7 of the Natural Gas Act (“NGA”). Under the Clean Water Act (“CWA”), should a Certifying Agency fail to act on such a request within one year, they are deemed to have waived the certification requirements.
Continue Reading FERC Proposes to Modify Water Quality Certification Waiver Period for Natural Gas Projects

On August 28, 2020, FERC issued a supplemental Notice of a Commission-led Technical Conference on state pricing for carbon dioxide emissions, commonly referred to as carbon pricing, in FERC-jurisdictional wholesale electric markets (“Conference”). The Conference is free and will take place online on Wednesday, September 30, 2020 from 9:00 a.m. to 5:30 p.m. EST.

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On July 17, 2020, FERC issued three orders relating to the executed cost-of-service agreement (“Mystic Agreement”) among Constellation Mystic Power, LLC (“Mystic”), Exelon Generation Company, LLC (“Exelon”), and ISO New England Inc. (“ISO-NE”).  The Mystic Agreement provides for cost-of-service compensation to Mystic for the continued operation of two gas-fired generating units.  In the first two orders, FERC addressed requests for rehearing of its 2018 orders accepting the Mystic Agreement (the “July 2018 Order” and the “December 2018 Order”), including its conclusion that Mystic should recover from ratepayers 91% of the operating costs of the Everett Marine Terminal (“Everett”), a non-jurisdictional liquified natural gas import terminal.  In its third order, FERC accepted in part a Mystic compliance filing submitted in response to the December 2018 Order.  Commissioner Glick issued dissents to each of the July 17 orders.  Commissioner Glick concluded that FERC was forcing consumers to pay the full cost of service for Mystic in order to “bail out” Everett, and that each of the orders exceeded FERC’s jurisdiction under the Federal Power Act (“FPA”).

Continue Reading Divided FERC Permits Mystic to Recover Operating Costs of Non-Jurisdictional LNG Terminal

On July 2, 2020, FERC staff issued an order granting an exemption from licensing to the City and County of Denver, Colorado, through its Board of Water Commissioners (“Denver Water”) for its Strontia Springs Hydroelectric Project (“Project”).  Prior to FERC issuing the exemption order, Denver Water held an original minor license for the Project, which is located on the South Platte River in Douglas and Jefferson counties, Colorado.
Continue Reading FERC Issues Federal Power Act “Exemption” in Lieu of Relicensing to Colorado Hydropower Project

Throughout June 2020, a number of legislative proposals poised to impact hydropower resources have been introduced in Congress.  On Monday, June 22, Democratic members of the House of Representatives released H.R. 2, the Moving Forward Act, which aims to encourage investment in infrastructure and includes several provisions on hydropower and dam safety.  On Monday June 29, Congresswoman Cathy McMorris Rodgers (WA-05) introduced the Hydropower Clean Energy Future Act which includes updates to the licensing process for non-federal hydroelectric projects and promotes innovation of new generation technologies that would protect the environment and natural resources while providing additional reliability services to the nation’s electric grid.  Finally, on June 30, Democratic members of the House Select Committee on the Climate Crisis released a Climate Crisis Action Plan, which includes provisions on hydropower and marine energy facilities.
Continue Reading Federal Hydropower Legislative Proposals Introduced on Capitol Hill

On Thursday, July 9, 2020 the Supreme Court, in a 5-4 decision, held that a large swath of northeastern Oklahoma, including most of the city of Tulsa, remains part of the Muscogee (Creek) Reservation and, as a result, that the state lacks jurisdiction to prosecute a major crime involving a tribal member within the reservation. Justice Gorsuch delivered the opinion for the Majority, confirming the durable principle of tribal sovereignty, despite significant efforts throughout history to dismantle tribal reservations and governments.  Chief Justice Roberts filed a dissenting opinion, in which Justices Alito and Kavanaugh joined, and in which Justice Thomas joined, except as to one footnote.  Some analyses have raised the possibility that this decision could have a significant impact on taxation and natural resources management in Indian Country throughout the United States, as discussed more fully below.  However, because the direct holding of the Court is quite narrow, the full impact of this decision remains to be seen. 
Continue Reading Supreme Court Determines that Area in Northeastern Oklahoma Constitutes a Reservation

On June 18, 2020, FERC denied a complaint by Anbaric Development Partners, L.L.C. (“Anbaric”) against PJM Interconnection, L.L.C. (“PJM”) alleging that PJM’s transmission interconnection procedures denied meaningful open access interconnection service to Anbaric’s proposed offshore transmission projects (see December 11, 2019 edition of the WER). FERC’s June 18 order concluded that Anbaric failed to demonstrate that PJM’s transmission interconnection procedures are unjust and unreasonable, or that the requirements for merchant transmission projects are either inconsistent with open access transmission service or unreasonably limit transmission expansion. FERC also highlighted its upcoming technical conference to discuss offshore wind integration in organized markets (see June 24, 2020 edition of the WER). Commissioner Bernard McNamee issued a separate concurring statement in which he highlighted his support for the technical conference.
Continue Reading FERC Denies Complaint Against PJM Over Denial of Interconnection Service to Transmission Projects Seeking to Connect Offshore Wind

On June 18, 2020, FERC issued an order directing New Fortress Energy LLC (“New Fortress Energy”) to show cause, within 30 days, why the liquified natural gas (“LNG”) handling facilities it constructed adjacent to the San Juan Combined Cycle Power Plant in San Juan, Puerto Rico, are not subject to FERC’s jurisdiction under section 3 of the Natural Gas Act (“NGA”).

Continue Reading New Fortress Energy Directed to Show Cause Why Its LNG Facility is Not Subject to FERC Jurisdiction

On May 21, 2020, FERC denied two 2017 complaints alleging that PJM Interconnection, L.L.C.’s (“PJM’s”) capacity procurement rules are unjust and unreasonable as applied to seasonal resources. FERC concluded complainants failed to show that PJM’s single annual capacity product is unjust and unreasonable, and rejected arguments that the rules discriminate against seasonal resources. Commissioner Richard Glick filed a separate concurring statement.
Continue Reading FERC Denies Complaints Against PJM’s Seasonal Resource Participation Rules

On May 19, 2020 President Trump issued an Executive Order directing federal agencies to “combat the economic consequences of COVID-19” by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”
Continue Reading President Trump Issues Executive Order Directing Regulatory Relief to Support Economic Recovery from COVID-19