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On April 19, 2023, FERC announced it would hold a forum to discuss the PJM Interconnection, L.L.C. (“PJM”) capacity market. The Commissioner-led forum is scheduled for Thursday, June 15, 2023. There will be three panels to discuss the current state of the PJM capacity market, potential improvements, and related proposals to address resource adequacy.Continue Reading FERC to Convene Forum on PJM Capacity Market

On March 16, 2023, FERC granted a petition declaring that, should it issue orders pursuant to Sections 210 and 211 of the Federal Power Act (“FPA”), which would be required for a prospective project to interconnect Puerto Rico’s transmission system to the U.S. mainland bulk electric system, such orders would “not render Puerto Rico’s electric utilities ‘public utilities’ under section 201(e) of the FPA. However, FERC reserved the right to make a fact-specific determination at the time any application for such interconnection is sought and further affirmed that, regardless of “public utility” status, FERC would retain jurisdiction over Puerto Rico’s electric utilities pursuant to sections 210, 211, 211A, 212, and 215 of the FPA.Continue Reading FERC Confirms that Orders Under Sections 210 and 211 of the Federal Power Act Would Not Generally Confer “Public Utility” Jurisdiction over Puerto Rico’s Electric Utilities

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.Continue Reading FERC Partially Accepts ISO-NE Order No. 2222 Compliance Filing, but Expresses Concern that Proposal Could Create Undue Barrier to DERs

On February 10, 2023, FERC approved the Western Resource Adequacy Program (“WRAP”) proposed by the Western Power Pool (“WPP”). The voluntary program commits participants to demonstrate prior to a given Winter or Summer season that they have sufficient capacity to meet a required planning reserve margin and have reserved 75% of the transmission to deliver that capacity to load. The WRAP also allows those who are short on capacity to call on the excess capacity of other participants during critical periods. The Southwest Power Pool, Inc. will run the operations of the program, which became effective January 1, 2023, under the oversight of WPP.Continue Reading FERC Approves Regional Resource Adequacy Program in the Western Interconnection

On October 6, the Fourteenth Court of Appeals of Houston, Texas issued an opinion in San Jacinto River Authority v. Gonzalez, et al., a case involving claims by 85 residents against the San Jacinto River Authority (“Authority”), the governmental entity that maintains Lake Conroe and the Lake Conroe Dam, for releasing water from Lake Conroe and allegedly flooding their homes. The court found that the residents failed to prove causation because residents’ homes would have flooded even if the Authority had not released any water.Continue Reading Texas Court Finds Lack of Causation in Takings Case Arising from Spills at Texas Dam During Hurricane Harvey

On October 21, 2022, the U.S. Department of Energy (“DOE”) announced three new funding opportunities to support research and development projects for hydropower infrastructure in the United States.  The funding totals $28 million and is part of the Bipartisan Infrastructure Law’s efforts to advance hydropower as a clean energy source.  DOE explains that the funding will support the expansion of: (1) “low-impact hydropower,” such as retrofits for dams that do not currently produce power and existing pumped storage hydropower facilities, (2) the development of new pumped storage hydropower facilities, and (3) engagement with “key voices” on issues including fleet modernization, sustainability, and environmental impacts.Continue Reading DOE Announces $28 Million Funding to Support Hydroelectric Programs

On December 20, 2022, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) in Waterkeepers Chesapeake, et al. v. FERC vacated a FERC order approving the relicensing of the Conowingo Dam because FERC did not have the authority to issue the license under section 401 of the Clean Water Act (“CWA”).  Specifically, the court found that FERC may only issue a license if the state issues a water quality certification for the dam or waives its right to do so. Here, the court emphasized that when the Maryland Department of Environment (“Department”) rescinded its water quality certification for the project subject to a settlement agreement, the recission did not constitute a waiver, and thus FERC did not have the authority to issue the dam’s new license under the act. Continue Reading D.C. Circuit Vacates FERC Order Approving the Conowingo Dam’s Federal License Renewal

On December 30, 2022, the U.S. Court of Appeals for the 9th Circuit (“9th Circuit”) affirmed a lower court’s denial of the Sauk-Suiattle Indian Tribe’s (“Tribe”) motion to remand to state court and its dismissal of the Tribe’s action against the City of Seattle (“City”) for lack of subject matter jurisdiction.  The case concerns Gorge Dam, which is located on the Skagit River in Washington and is one of three dams that make up the City’s Skagit River Hydroelectric Project (“Skagit River Project” or “Project”).Continue Reading U.S. Court of Appeals for the 9th Circuit Affirms Lower Court’s Dismissal of Tribe’s Case Against City of Seattle

On January 19, 2023, the Commission issued a final rule that directs the North American Electric Reliability Corporation (“NERC”) to develop and submit reliability standards for monitoring high and medium impact bulk electric systems with high-speed internet connections. The Commission stated that the new reliability standards would assist entities in monitoring network traffic inside the bulk electric systems and detecting unauthorized activity inside those systems.Continue Reading FERC Directs NERC to Develop Internal Network Security Monitoring for High and Medium Impact Bulk Electric System Cyber Systems