On August 22, 2019, FERC dismissed as premature Alternative Transmission Inc.’s (“ATI”) petition for declaratory order (“Petition”) asking FERC to declare that ATI’s alternative transmission facilities and services are subject to FERC’s jurisdiction and that ATI, as the owner and operator of the facilities, will be a public utility under the Federal Power Act (“FPA”).
FERC Approves First-Ever Determination on Early-Action Investment Credit Under Section 36 of the Federal Power Act
On August 9, 2019, the Federal Energy Regulatory Commission (“FERC”) ruled that hundreds of millions of dollars of ongoing and future investments by Chelan County Public Utility District (“Chelan PUD”) in the Rock Island Hydroelectric Project qualified as early-action investments under the new section 36(c) of the Federal Power Act (“FPA”). Accordingly, FERC will consider these significant investments when the Rock Island Project undergoes relicensing of its FERC license prior to the 2028 expiration of the license.
FERC Establishes New LNG Division, Opens Regional Office in Houston
On July 23, 2019, FERC Chairman Neil Chatterjee announced that the Commission is establishing a new Division of LNG Facility Review & Inspection (“DLNG”), within its Office of Energy Projects, to handle the growing number of complex applications to site, build, and operate liquified natural gas export terminals. Prior to
FERC Grants Partial Clarification of Final Rule on Interlocking Directorates
On July 18, 2019, FERC issued an order denying in part and granting in part a request for clarification or rehearing of Order No. 856, which revised its regulations relating to interlocking officers and directors. FERC provided additional clarification and explanation, but declined to make any further revisions or to allow rehearing.
FERC Rejects MISO Tariff Revisions Regarding Cost Allocation for Regional and Local Economic Transmission Projects
On June 24, 2019, FERC rejected the Midcontinent Independent System Operator, Inc.’s (“MISO”) and the MISO Transmission Owners’ (collectively, “Filing Parties”) tariff revisions regarding cost allocation for regional and local economic transmission projects, finding that the cost allocation methodology related to the Filing Parties’ newly proposed Local Economic Project category was inconsistent with the cost-causation principle. FERC rejected the Filing Parties’ filing as a whole based on the above finding, however FERC did provide guidance on other portions of the filing, stating that it did not find such other aspects of the filing to be unjust and unreasonable.
FERC Approves New NERC Cyber Security Reliability Standard
On June 20, 2019, FERC issued a letter order granting its approval of the North American Electric Reliability Corporation’s (“NERC”) proposed Reliability Standard CIP-008-06 which broadens the mandatory reporting of cyber security incidents.
FERC Permits MISO to Share Market Participant Information with Federal Agencies in Response to “Cyber Exigencies”
On June 20, 2019, FERC approved revisions to the Midcontinent Independent System Operator, Inc.’s (“MISO”) Tariff which permit MISO to share, without notice to its market participants, confidential information with federal cybersecurity authorities in response to detected cyber intrusions or weaknesses in electric utility infrastructure that have the potential to compromise reliability and call for immediate action. FERC concluded that MISO’s proposal allows for greater information sharing with the appropriate federal agencies before a potential cybersecurity threat becomes an emergency, and appropriately maintains the confidentiality of the information at issue.
California Bankruptcy Judge Rules FERC Lacks Jurisdiction Over Abrogation of PG&E’s Wholesale Power Agreements
On June 7, 2019, Judge Dennis Montali of the U.S. Bankruptcy Court of the Northern District of California San Francisco Division found that FERC’s finding that it had concurrent jurisdiction with the U.S. bankruptcy court over wholesale power agreements was “unenforceable in bankruptcy court and of no force on the parties before it.” Judge Montali further noted that if necessary, the U.S. bankruptcy court will “enjoin FERC from perpetuating its attempt to exercise power it wholly lacks.” At issue, on review by the bankruptcy court, was whether, pursuant to 28 U.S.C. 2201, the bankruptcy court has exclusive jurisdiction over Pacific Gas & Electric Company’s and Pacific Gas & Electric Corporation’s (collectively “Debtors”) right to reject a power purchase agreement (“PPA”) under Section 365 of the Bankruptcy Code, and whether FERC has concurrent jurisdiction to grant or deny PG&E’s rejection of any PPAs.
FERC Issues Pilot Project License to Alaska Hydrokinetic Project
On May 23, 2019, FERC issued a 10-year pilot license to the Igiugig Village Council (“Igiugig Village”) to construct, operate, and maintain its 70-kilowatt hydrokinetic project located on the Kvichak River near the town of Igiugig, Alaska (“Igiugig Project”). The Igiugig Project will enable to Igiugig Village to test new hydrokinetic technology to power the Igiugig Village.
DOE Announces a New Round of Hydroelectric Incentive Funding
On May 21, 2019, the U.S. Department of Energy (“DOE”) announced that its Hydroelectric Production Incentive Program is offering $6.6 million in new funding for projects that would add hydropower generating capabilities to existing dams throughout the U.S. Qualified facilities will be selected for funding based on the number of kilowatt hours generated in calendar year 2018.