On February 10, 2020, FERC filed its Rehearing En Banc Brief (“Brief”) regarding opposition to FERC’s authorization of the construction of Transcontinental Gas Pipe Line Company, LLC’s (“Transco”) proposed Atlantic Sunrise Project (“Project”)—an interstate pipeline designed to supply enough natural gas to meet the daily needs of more than 7 million American homes. The United States Court of Appeals for the District of Columbia (“D.C. Circuit”) issued an opinion on August 2, 2019, upholding FERC’s decision to conditionally approve the Project. However, on September 16, 2019, Hilltop Hollow Limited Partnership, Hilltop Hollow Limited Partnership, LLC, and Stephen D. Hoffman (“Petitioners”) petitioned the court for rehearing of the court’s opinion en banc. The Petitioner’s main challenge was FERC’s usage of tolling orders, which allows FERC to delay rehearing after granting a pipeline certificate, as impermissible under the Natural Gas Act (“NGA”) and the Due Process Clause of the Fifth Amendment. The court granted that petition and vacated the underlying judgment in a December 5, 2019 order (see December 11, 2019 WER).
Continue Reading FERC Defends Use of Tolling Orders Before the DC Circuit En Banc

On January 27, 2020, FERC petitioned the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) for rehearing en banc of that court’s split (2-1) decision finding that the bankruptcy court’s concurrent jurisdiction is paramount, and that therefore, FERC-jurisdictional power purchase agreements may be rejected in bankruptcy without FERC review (see December 19, 2019 edition of the WER for a detailed analysis of the majority’s opinion and Judge Richard Allen Griffin’s opinion dissenting in part). This case is important because different courts have come to opposite conclusions over whether a debtor must obtain FERC authorization before it effects rejection in bankruptcy of a FERC-jurisdictional contract. This issue is also pending before the Ninth Circuit in proceedings associated with Pacific Gas & Electric’s ongoing bankruptcy proceeding.
Continue Reading FERC Seeks Sixth Circuit Rehearing En Banc Regarding Its Role in Bankruptcy Proceedings

At FERC’s monthly meeting held on January 23, 2020, Commissioner Bernard L. McNamee announced he will not seek reappointment as commissioner after his current term ends on June 30, 2020. Commissioner McNamee indicated that he will serve through the end of his term or later, if needed to help maintain a quorum at FERC in 2020.

Continue Reading Commissioner McNamee Announces He Will Not Seek Reappointment

On January 9, 2020, FERC rejected Constellation Mystic Power, LLC’s (“Mystic”) proposed amendment to its cost-of-service agreement (“Mystic Agreement”) with ISO New England Inc. (“ISO-NE”) that would have provided Mystic the option to unilaterally retire Mystic Generating Station units 8 and 9 (“Mystic Generators”).  FERC found that giving Mystic the option to retire the Mystic Generators early would pose an unacceptable risk to reliability.  Commissioner Glick concurred in part and dissented in part.
Continue Reading FERC Rejects Proposed Unilateral Termination Amendment Related to Mystic Generators

On December 20, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) denied petitions for review of a series of FERC orders that exempted certain North Carolina transmission customers of Virginia Electric and Power Company (“Dominion”) from the incremental costs to underground certain transmission lines in the Virginia portion of the Dominion’s service territory.  The challenges were brought by certain Virginia transmission customers of Dominion Energy, which sought to overturn FERC’s determination that only Dominion’s Virginia wholesale customers, not its North Carolina customers, should bear the costs of undergrounding three transmission line upgrade projects.
Continue Reading D.C. Circuit Affirms FERC Undergrounding Decision

On December 6, 2019, a bipartisan group of ten U.S. Senators wrote to FERC Chairman Neil Chatterjee asking for assurances that FERC fully appreciates the threat posed to the nation’s energy infrastructure by the use of equipment manufactured by Huawei Technologies Co., Ltd. (“Huawei”).  The letter praised FERC’s creation of a new cybersecurity division and expressed hope that the new division’s first objective would be defending the nation’s infrastructure against threats posed by the use of Huawei’s equipment.
Continue Reading Bipartisan Group of Senators Seek FERC Assurances Regarding Huawei Equipment Threat

On November 18, 2019, Anbaric Development Partners, LLC (“Anbaric”) filed a complaint against PJM Interconnection, L.L.C. (“PJM”) alleging that PJM’s transmission interconnection procedures deny meaningful open access interconnection service to merchant transmission projects designed to connect remote generation resources, including offshore wind generation, to the PJM transmission system (“Transmission Platform Projects”). Anbaric requested that FERC: find that the PJM Tariff is unjust, unreasonable and unduly discriminatory or preferential because it does not provide Transmission Platform Projects the opportunity to obtain material interconnection rights; direct that Transmission Platform Projects be given the opportunity to obtain material interconnection rights; and order PJM to modify its Tariff to include a new category of Transmission Platform Projects to connect remote renewable generation facilities to the PJM Transmission System. Anbaric also requested that any order from FERC apply to all of Anbaric’s projects with positions in PJM’s interconnection queue as of the date of its complaint.
Continue Reading Complaint Challenges PJM’s Denial of Interconnection Service to Transmission Projects Seeking to Connect Offshore Wind

On November 21, 2019, FERC’s Office of Enforcement (“OE”) released its thirteenth annual Report on Enforcement (“Report”) to provide an update about its activities during the last fiscal year (i.e., 12-months ending September 30, 2019; hereinafter “FY2019”). The Report provides an overview of, and statistics reflecting, the activities of OE’s Divisions of Investigations (“DOI”), Division of Audits and Accounting (“DAA”), Division of Analytics and Surveillance (“DAS”), and Division of Energy Market Oversight (“DEMO”).
Continue Reading FERC Issues 2019 Report on Enforcement

On November 5 and 6, 2019, FERC staff held a two-day workshop at its headquarters in Washington, DC on technologies that increase the capacity, efficiency, or reliability of transmission facilities.  Panelists and FERC staff discussed technologies that are currently used in transmission planning and operations, challenges associated with the deployment of grid-enhancing technologies, and regulatory actions that might promote increased adoption of these technologies going forward. A formal notice requesting written comments will soon be issued. 
Continue Reading FERC Holds Workshop on Grid-Enhancing Technologies, Seeks Comment

On October 17, 2019, FERC issued its 2019-2020 Winter Energy Market Assessment (“Assessment”), which is a summary of staff’s expectations about market preparedness, including a high‐level assessment of the risks and challenges anticipated in the coming winter operating season. In its 2019-2020 Assessment, FERC highlighted that: 1) the National Oceanic and Atmospheric Administration (“NOAA”) forecasts a warmer than average winter; 2) natural gas storage levels are expected to be average going into the winter; 3) natural gas futures prices are lower than last winter; 4) a diverse and changing generation resource mix will maintain electric reliability this winter; and 5) expected winter reserve margins exceed reference levels in all regions.

Continue Reading FERC Issues 2019-2020 Winter Energy Market Assessment