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Russell Kooistra counsels an array of energy companies on various issues related to natural gas and electricity markets. Russell uses his in-depth knowledge of Federal Energy Regulatory Commission (FERC) policy and regulations to advise clients on complex regulatory matters.

On June 29, 2021, the Supreme Court of the United States ruled that a certificate of public convenience and necessity issued by FERC under section 7 of the Natural Gas Act (“NGA”) authorizes a private company to exercise eminent domain to condemn state-owned property.  In particular, the opinion holds that states cannot claim sovereign immunity from condemnation lawsuits filed by certificated pipelines against the state in order to take public land to construct, own, and operate an interstate gas pipeline project.    
Continue Reading Supreme Court Rules that PennEast, Gas Pipelines May Condemn State-Owned Land

On June 17, 2021, FERC set aside its previous decision in Order No. 2222-A that allowed state regulatory authorities to prohibit demand response resources from participating in distributed energy resource (“DER”) aggregations in wholesale energy markets when the DER aggregation contains only demand response resources. As a result, upon the effective date of Order No. 2222-B, state regulatory authorities will be able to prohibit demand response resources from participating in all wholesale DER aggregations. However, FERC also stated that it will further consider the issue in the Notice of Inquiry (“NOI”) proceeding established in Order No. 2222-A to consider whether to revise its regulations to remove the demand response opt-out established in Order Nos. 719 and 719-A. FERC also extended the comment period in the NOI proceeding to ensure an adequate opportunity for interested parties to comment on these issues. Finally, Order No. 2222-B clarified the appropriate restrictions to avoid double counting of services and the compensation of demand response resources that participate in DER aggregations. Commissioners Neil Chatterjee and James Danly wrote separate concurring opinions; Commissioner Mark Christie concurred in part and dissented in part.
Continue Reading FERC Issues Order No. 2222-B, Setting Demand Response Opt-Out for Further Consideration

On May 20, 2021, FERC issued a Show Cause Order directing GreenHat Energy, LLC (“GreenHat”) and its owners to show why they did not violate the Federal Power Act, FERC’s regulations, the PJM Interconnection, L.L.C. (“PJM”) Tariff, and the PJM Operating Agreement by manipulating PJM’s Financial Transmission Rights (“FTR”) market, generating $13 million in unjust profits and imposing $179 million in losses on PJM members. FERC also directed GreenHat and its owners to file an answer with FERC within 30 days showing why they should not be required to disgorge $13 million in unjust profits, plus interest, and to pay civil penalties totaling $229 million. FERC’s order is accompanied by a report from FERC’s Office of Enforcement (“OE Report”). Commissioner James Danly issued a separate concurring statement.
Continue Reading FERC Issues Show Cause Order Directing GreenHat Energy to Respond to Market Manipulation Claims

On May 4, 2021, FERC issued Order No. 871-B, clarifying that the rule established in Order No. 871, which precludes FERC from authorizing natural gas pipeline companies to proceed with construction of approved pipeline projects, only applies until the earlier of either (a) the date that a qualifying rehearing request is no longer pending before FERC or (b) 90 days following the date that a qualifying request for rehearing may be deemed denied by operation of law. FERC also limited the application of this rule to requests for rehearing that raise issues reflecting opposition to project construction, operation, or need. Finally, FERC announced a general policy to stay Natural Gas Act (“NGA”) section 7 certificate orders during the rehearing period and pending resolution of any timely requests for rehearing. Commissioner James Danly dissented, arguing that the need for Order No. 871 is obviated by further developments on appeal of FERC’s practice of indefinite tolling orders before the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) and that presumptively staying pipeline project construction is contrary to the NGA and is “bad policy.” Commissioner Mark Christie concurred with Order No. 871-B.

Continue Reading FERC Revises Policy on Authorizing Pipelines to Commence Construction Pending Requests for Rehearing of Certificate Orders

On March 24, 2021, FERC modified a December 17, 2020 order (“December Order”) while reaching the same overall result, allowing construction to recommence for a portion of the Mountain Valley Pipeline, LLC (“Mountain Valley”) project located near Jefferson National Forest in Virginia. FERC determined that the Environmental Conditions in Mountain Valley’s certificate order did not preclude FERC from permitting Mountain Valley to resume construction on portions of its pipeline, even though certain federal authorizations that were vacated on appeal are still pending, and also reaffirmed that completing the construction would be preferable to temporary mitigation efforts. Chairman Richard Glick and Commissioner Allison Clements dissented, arguing that FERC cannot authorize Mountain Valley to resume construction while federal authorizations remain outstanding.
Continue Reading Mountain Valley Pipeline Construction to Resume over Opposition from Chairman Glick and Commissioner Clements

On January 20, 2021, President Joseph Biden issued Executive Order No. 13990 (“Executive Order”), which, among other things, suspended Executive Order 13920, “Securing the United States Bulk-Power System” (“Executive Order 13920”) until April 20, 2021 and directed all executive departments and agencies to review and take action to address all actions taken during former-President Donald Trump’s tenure in office that conflict with President Biden’s stated goals of improving public health, environmental protection, reducing greenhouse gas emissions, bolstering resilience to the impacts of climate change, and confronting the climate crisis.
Continue Reading President Biden Suspends Bulk Power System Executive Order; Directs Agencies to Address Public Health- and Climate-Related Rules

On January 21, 2021, President Biden named Richard Glick as the new FERC Chairman. Chairman Glick joined FERC as a Commissioner in 2017. He previously served as general counsel to the Democrats on the Senate Energy and Natural Resources Committee and as Vice President of Government Affairs for Iberdrola’s renewable energy, electric and gas utility,

On January 4, 2021, Mark C. Christie was sworn in as FERC’s newest Commissioner. The Senate previously confirmed the nomination of Commissioner Christie, along with the nomination of now-current-Commissioner Allison Clements, in a late night voice vote on November 30, 2020 (see December 8, 2020 edition of the WER). With the swearing in of Commissioner Christie, FERC now has a full five-member Commission with three Republicans (Chairman Danly and Commissioners Chatterjee and Christie) and two Democrats (Commissioners Clements and Glick).
Continue Reading Mark C. Christie Sworn in as FERC Commissioner

On November 30, 2020, in a late night voice vote, the U.S. Senate confirmed the nominations of Mark Christie and Allison Clements as FERC Commissioners. Once they are sworn in as Commissioners, the bipartisan pairing will fill the remaining two seats on the five-member Commission, with Christie occupying the seat last held by former Commissioner Bernard McNamee for a term ending on June 30, 2025 and Clements occupying the seat last held by Commissioner Cheryl LaFleur for a term ending on June 30, 2024.
Continue Reading Senate Confirms Christie and Clements to Fill Remaining Commission Seats

On November 19, 2020, FERC upheld its March 2018 order addressing ISO New England, Inc.’s (“ISO-NE”) Competitive Auctions with Sponsored Policy Resources (“CASPR”) proposal to integrate certain state-supported resources into its capacity market (see March 20, 2018 edition of the WER). FERC’s November 19 order upheld its prior conclusion that the CASPR program is a just and reasonable modification to ISO-NE’s Forward Capacity Market (“FCM”) design that appropriately balances consumer as well as supplier interests. In a separate dissenting opinion, Commissioner Richard Glick concluded that the CASPR program has not shown to be an effective means of accommodating state public policies in the FCM.
Continue Reading FERC Upholds ISO-NE CASPR Program on Rehearing