Photo of Elizabeth McCormick

On May 4, 2023, the Senate Energy and Natural Resources Committee hosted all four FERC Commissioners for an oversight hearing to focus on reliability in the face of (1) cyber-attacks, (2) coal and natural gas plant retirements, (3) severe weather, and (4) subsidies, climate policies, and market signals that encourage more intermittent resources to come online.

On March 3, 2023, the House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Energy, Climate Change, and Grid Security Subcommittee Chair Jeff Duncan (R-SC) sent a letter to Acting FERC Chairman Willie Phillips and Commissioners asking the Commission to respond to a series of questions related to FERC’s authority as it relates to two policy statements issued in February 2022 and a Notice of Proposed Rulemaking (“NOPR”) issued in December 2022. The two policy statements concern Greenhouse Gas (“GHG”) emissions of natural gas infrastructure projects (see February 18, 2022 Troutman Pepper Insights; February 23, 2022 edition of the WER). The NOPR would require applicants proposing to build electric transmission infrastructure to prepare Environmental Justice Public Engagement Plans.

On April 21, 2023, the President Biden issued an “Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All.” The new Executive Order provides that “each [federal] agency should make achieving environmental justice part of its mission.” To that end, it provides that agencies shall:

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.

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.

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.

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.

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.

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.