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On December 19, 2023, FERC issued a Notice of Inquiry (“NOI”) to examine whether and how to revise its policy on providing blanket authorizations for holding companies, including investment companies, to acquire securities in electric utilities and their upstream owners pursuant to section 203(a)(2) of the Federal Power Act (“FPA”). Specifically, the Commission is soliciting comment on what constitutes control of a public utility in evaluating holding companies’ requests for authorization and what factors it should consider when evaluating control. Commissioner Mark Christie concurred with a separate statement, stating that FERC should examine whether investment companies are truly acting as passive investors in electric utilities and whether FERC’s blanket authorization practices are still sufficient to protect the interests of the electric utilities’ customers.

On November 16, 2023, the U.S. Department of Energy (“DOE”) issued a Notice of Proposed Rulemaking (“NOPR”) to update its National Environmental Policy Act (“NEPA”) implementing regulations to add a categorical exclusion for specific energy storage systems and revising categorical exclusions for upgrading and rebuilding transmission lines and solar photovoltaic (“PV”) systems. Comments on the NOPR are due January 2, 2024.

On September 21, 2023, the Commission found that J.P. Morgan Investment Management Inc. (“J.P. Morgan Investment”) is an affiliate of Mankato Energy Center, LLC and Mankato Energy Center II, LLC (“Mankato Companies”) through their upstream owner, IIF US Holding 2 LP (“IIF US Holding 2”) because there is liable to be an absence of arm’s-length bargaining in transactions between Mankato Companies and J.P. Morgan Investment.  In doing so, FERC considered, among other things, the power delegated by IIF US Holding 2 to J.P. Morgan Investment, which serves as IIF US Holding 2’s investment advisor.  Commissioner Danly concurred in the result in a separate statement, and Chairman Willie Phillips concurred in a separate statement.

On July 13, 2023, FERC on rehearing set aside its prior order that had accepted Southwest Power Pool, Inc.’s (“SPP”) proposal to establish a case-by-case process to allocate, on a regional, postage-stamp basis, all of the costs of a transmission facility with a voltage level between 100 kV and 300 kV (“Byway facility”).  In setting aside its prior approval, FERC found that SPP’s Proposal granted the SPP Board too much discretion in allocating the costs of Byway facilities. Commissioners Mark Christie and James Danly each concurred with separate statements.  FERC’s rejection marked the second time SPP’s proposal failed to obtain Commission approval.

On May 11, 2023, FERC notified Mankato Energy Center, LLC and Mankato Energy Center II, LLC (“Mankato Companies”) that it will release certain privileged information included in the initial brief that Mankato Companies submitted in an ongoing proceeding section 206 of the Federal Power Act (“FPA”) to determine whether Mankato companies and J.P. Morgan Investment Management, Inc. (“J.P. Morgan Investment”) are affiliated for purposes of the FPA.  FERC reasoned that disclosing certain privileged information is necessary to carry out the Commission’s jurisdictional responsibilities in evaluating whether the Mankato Companies’ upstream ownership raises market power concerns.  Commissioner Danly dissented in a separate statement, arguing that FERC could instead release a redacted order.

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 found that Commonwealth Edison Company’s (“ComEd”) formula rate protocols under the PJM Interconnection, L.L.C. (“PJM”) Open Access Transmission Tariff (“OATT”) appear to be unjust and unreasonable and therefore directed ComEd to show cause as to why its formula rate protocols are just and reasonable or explain what changes to its formula rate protocols would remedy FERC’s concerns relating to the scope of participation, transparency, and challenge procedures.

On February 16, 2023, FERC approved two new extreme cold weather Reliability Standards—EOP-011-3 (Emergency Operations) and EOP-012-1 (Extreme Cold Weather Preparedness and Operations)—filed by the North American Electric Reliability Corporation (“NERC”) and aimed at implementing the recommendations resulting from a joint inquiry into the circumstances surrounding Winter Storm Uri. However, FERC also directed modifications to EOP-012-1 to address what FERC characterized as concerns over the Standard’s applicability, ambiguity, lack of objective measures and deadlines, and prolonged, indefinite compliance periods. The new Reliability Standards constitute the first phase of NERC’s effort to implement the recommendations resulting from the joint inquiry into the 2021 winter storm. NERC stated that it will address the remaining recommendations in the second phase of the project.