On April 18, 2019, FERC issued Order No. 858, revising its regulations to conform with the America’s Water Infrastructure Act (“AWIA”), which added sections 34 and 35 to the Federal Power Act (“FPA”) authorizing FERC to issue or amend licenses for: (1) qualifying facilities at an existing nonpowered dams (section 34); and (2) closed-loop pumped storage projects (section 35).  In conformance with AWIA, Order No. 858 establishes an expedited hydropower licensing process for projects covered by newly-added FPA sections 34 and 35. 
Continue Reading FERC Establishes Expedited Hydropower Licensing Process

On April 10, 2019, President Donald Trump issued two Executive Orders promoting new energy infrastructure by removing regulatory barriers and revising the Presidential permitting process.  Both Executive Orders aim to streamline the regulatory processes for building new energy infrastructure projects.
Continue Reading President Trump Issues Executive Orders on Infrastructure

On April 2, 2019, FERC affirmed its decision that the New York Department of Environmental Conversation (“NY DEC”) waived its authority to issue or deny a Clean Water Act (“CWA”) section 401 water quality permit application filed by National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (collectively, “National Fuel”) by failing to act on the application within one year of receipt.  Specifically, FERC held that an agreement between NY DEC and National Fuel to alter the receipt date of the application did not extend the CWA’s statutory one-year deadline for NY DEC to act on the application.
Continue Reading FERC Affirms Finding That New York Waived CWA Authority over Pipeline Permit

On March 26, 2019, FERC accepted, subject to condition, AMP Transmission, LLC’s (“AMP”) proposed formula rate template and implementation protocols (collectively, “Formula Rate”) to recover a revenue requirement based on a cash-flow method for AMP’s integrated transmission facilities located in the PJM Interconnection, L.L.C. (“PJM”) region.  As a minor condition of acceptance, FERC directed AMP to revise on compliance its Formula Rate to enable AMP to use it in PJM transmission zones that require different rate years, as opposed to only in zones whose rate year is based on the calendar year.
Continue Reading FERC Permits Transmission-Only Public Power Entity to Use Same Formula Rate for Future Transmission Projects in Different PJM Zones Based on Cash-Flow Method

On March 21, 2019, FERC issued a Notice of Inquiry (“NOI”) seeking information regarding whether and how to revise its policy for determining the rate of return on equity (“ROE”) used in setting rates charged by jurisdictional public utilities.  The NOI also seeks comment on whether any changes to the Commission’s ROE policies for public utilities should be applied to interstate natural gas and oil pipelines.  Specifically, the NOI requests information in eight areas:  (1) the role of FERC’s base ROE in investment decision-making and what objectives should guide the Commission’s approach; (2) whether uniform application of FERC’s base ROE policy across the electric, interstate natural gas pipeline and oil pipeline industries is appropriate and advisable; (3) performance of the discounted cash flow (“DCF”) model; (4) proxy groups; (5) the choice of financial model(s) used; (6) the mismatch between market-based ROE determinations and book-value rate base; (7) how FERC determines whether an existing ROE is unjust and unreasonable under the first prong of Federal Power Act section 206; and (8) model mechanics and implementation.
Continue Reading FERC Issues Notice of Inquiry on ROE Policy

On February 28, 2019, FERC denied the Coalition of Midwest Power Producers, Inc.’s (“Power Producers”) complaint alleging that Midcontinent Independent System Operator, Inc. (“MISO”) violated its tariff (“OATT”) by not requiring all capacity resources to be deliverable up to their installed capacity levels (“Complaint”).  FERC concluded that MISO reasonably implemented its OATT provisions regarding capacity resources.
Continue Reading FERC Denies Complaint Alleging MISO Failure to Require Capacity Resources to Deliver Up to Installed Capacity Levels

On February 21, 2019, FERC took “a new approach” to its approval of pending FERC-jurisdictional liquefied natural gas (“LNG”) projects by calculating the direct greenhouse gas (“GHG”) emissions from the operation of the project facilities and comparing those emissions to the national level.  FERC’s approach was a step toward ultimately approving a proposed LNG project that was previously pulled from FERC’s December 2018 open meeting.  Notwithstanding FERC’s approval, Commissioner Cheryl LaFleur reiterated her concern that while FERC’s disclosure of national comparison data is only the first step, “the Commission has not identified a framework for making a significance determination” based on GHG emissions.  Meanwhile, Commissioner Richard Glick dissented, arguing that FERC’s GHG analysis fails to meet the requirements of both the Natural Gas Act (“NGA”) and the National Environmental Policy Act (“NEPA”), both of which require that FERC consider climate change implications in some manner.  Separately, FERC approved two smaller gas pipeline projects, with Commissioner LaFleur issuing separate concurrences, and Commissioner Glick issuing separate dissents, in each.   
Continue Reading FERC’s New Approach to Measuring National GHG Emissions Leads to LNG Facility Approval

On February 22, 2019, FERC issued a final rule (“Order No. 857”) conforming FERC’s regulations to the America’s Water Infrastructure Act (“AWIA”), which amended sections of the Federal Power Act (“FPA”) pertaining to preliminary permits, qualifying conduit hydropower facilities, and start for payment of annual charges. 
Continue Reading FERC Finalizes Rule Implementing AWIA Hydro Project Reforms

On February 4, 2019, FERC issued a notice that its staff and the Department of Energy (“DOE”) will co-host a technical conference on Security Investments for Energy Infrastructure.  The technical conference will broadly address two main topics. 
Continue Reading FERC, DOE Announce Technical Conference on Security Investments for Energy Infrastructure

In orders issued on January 25 and 28, 2019, FERC concluded that the Commission and the bankruptcy courts have concurrent jurisdiction to review and address the disposition of FERC-jurisdictional contracts sought to be rejected through bankruptcy and, therefore, a party to a FERC-jurisdictional wholesale power agreement must first obtain approval from both FERC and the bankruptcy court to modify the filed rate and reject the filed wholesale power contract, respectively.  FERC made its determination in response to two separate petitions (“Petitions”) filed by NextEra Energy, Inc. and NextEra Energy Partners, L.P. (collectively, “NextEra”) and Exelon Corporation (“Exelon”), individually, against Pacific Gas and Electric Company (“PG&E”).  In those Petitions, NextEra and Exelon asked FERC to clarify its authority regarding the prospect of PG&E seeking to reject or amend FERC-jurisdictional wholesale power agreements in its anticipated bankruptcy proceeding.  On January 29, 2019, PG&E submitted its anticipated bankruptcy filing in the U.S. Bankruptcy Court for the Northern District of California.   
Continue Reading FERC Claims Concurrent Jurisdiction Over Wholesale Power Agreements in PG&E Bankruptcy Dispute