Photo of Elizabeth McCormick

On November 17, 2022, FERC issued three orders intended to address the reliability impacts of the rapid integration of inverter-based resources (“IBRs”), including solar, wind, fuel cell, and battery storage resources, on the Bulk-Power System (“BPS”). Specifically, in the first proceeding, FERC directed the North American Electric Reliability Corporation (“NERC”) to develop a plan to register the entities that own and operate IBRs so that NERC may monitor their compliance with NERC’s Reliability Standards. In the second proceeding, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to direct NERC to develop new or modified Reliability Standards that address reliability gaps related to IBRs. Lastly, in the final proceeding, FERC approved revisions to two of NERC’s Reliability Standards.

Continue Reading FERC Issues Proposals Regarding Inverter-Based Resources to Improve Grid Reliability

On October 25, 2022, FERC declined to act on a petition for enforcement against California’s rules for solar installations implemented pursuant to the Public Utility Regulatory Policies Act (“PURPA”). As a result, ongoing federal litigation against the California rules will continue.

Continue Reading FERC Declines to Act on California Rooftop Solar PURPA Petition

On October 20, 2022, FERC issued orders in two separate proceedings that clarified how investor company appointments to public utility boards of directors can trigger additional FERC regulatory scrutiny. Specifically, in the first proceeding, FERC determined that such appointments established an “affiliate” relationship under FERC’s rules, while in the second proceeding, FERC determined that the appointments effectuated a “change in control” over the public utility that required prior FERC approval under Section 203 of the Federal Power Act (“FPA”).

Continue Reading FERC Elaborates on How Board Membership Impacts “Affiliation” Determination Under FERC’s Rules

On September 30, the U.S. Court of Appeals for the Tenth Circuit issued an opinion in Save the Colorado, et al. v. Spellmon. The case arose from various conservation group challenges to the U.S. Army Corps of Engineers (Corps) and U.S. Fish and Wildlife Service’s (Service) decision to grant the city and county of Denver, acting through its Board of Water Commissioners (Denver Water or municipality), a discharge permit to expand the reservoir of its Gross Reservoir Hydroelectric Project, which is licensed by the Federal Energy Regulatory Commission (FERC or Commission). The central issue revolved around whether the U.S. courts of appeals have exclusive jurisdiction over challenges to non-FERC decisions arising under statutes related to the development of hydropower projects under the Federal Power Act (FPA). The Tenth Circuit ultimately held that petitions against orders by non-FERC agencies do not warrant exclusive jurisdiction in the U.S. courts of appeals.

Continue Reading Tenth Circuit Resolves Jurisdictional Dispute, Finds FPA Jurisdictional Limit Does Not Apply to Non-FERC Agency Orders

On September 9, the U.S. Department of Energy (DOE) announced that it would distribute $13.5 million to incentivize hydroelectric generation in the United States. The financial support is part of the Hydroelectric Production Incentive Program, which provides funding for electricity generated and sold from dams and other water infrastructure projects that will add to or expand hydropower generation.

Continue Reading DOE Announces $13.5M Distribution to Hydroelectric Facilities Through the Hydroelectric Production Incentive Program

On September 21, Senator Joe Manchin (D-WV), Chairman of the Senate Energy and Natural Resources Committee, released the text of the Energy Independence and Security Act of 2022 (Act). This comprehensive Act was set to be included in the upcoming Continuing Resolution; however, on September 27, Manchin pulled the Act from the Continuing Resolution given bipartisan opposition. The Act sought to improve energy production in the United States by accelerating agency review of certain energy projects and modernizing permitting laws.

Continue Reading Senator Manchin’s Permitting Reform Bill Pulled From the Continuing Resolution

On August 30, 2022, the U.S. Court of Appeals for the Fifth Circuit issued an order in NextEra Energy Capital Holdings, Inc. v. Lake, a case raising dormant Commerce Clause challenges to a 2019 Texas law that bans new entrants from building transmission lines that are part of a multistate electricity grid.  The majority reversed the lower court’s Rule 12(b)(6) dismissal of NextEra’s petition, thereby allowing the case to proceed to trial in district court.
Continue Reading 5th Circuit Holds that Texas Law Permitting Blocking of Competitive Transmission Owners from Building New Lines Violates the Commerce Clause

On August 30, FERC plans to hold a virtual workshop to discuss how members of the public (including customers and consumer advocates) can better participate in hydroelectric proceedings. The workshop is part of Commission’s increased focus on stakeholder engagement and environmental justice.

Continue Reading FERC Focuses on Public Participation in Hydroelectric Proceedings

As we previously reported, the Infrastructure Investment and Jobs Act, also known as the Bipartisan Infrastructure Law (BIL), which President Biden signed into law on November 15, 2021, included over $900 million in waterpower incentives for new and existing hydropower, pumped storage, and marine energy. Specifically, the BIL provided additional funding for the existing incentive programs established by Sections 242 and 243 of the Energy Policy Act of 2005 (EPAct 2005) and created a new incentive program to maintain and enhance hydroelectricity through improvements to grid resiliency, dam safety, and the environment under Section 247 of EPAct 2005.

Continue Reading Department of Energy Issues Request for Information on Hydropower Funding Provisions

On July 28, 2022, FERC proposed a new “duty of candor” rule that would broadly apply to “all entities communicating with the Commission or other specified organizations related to a matter subject to the jurisdiction of the Commission.” According to the Commission, the Notice of Proposed Rulemaking (“NOPR”) is intended to capture the types of communications that may not have been included in the Commission’s existing communication rules and policies, some of which have an existing duty of candor standard.

Continue Reading FERC Proposes a New, Broader Duty of Candor Rule