Photo of Russell Kooistra

Russell Kooistra

Subscribe to Russell Kooistra's Posts

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.

Contact: Read more about Russell Kooistra

On February 16, 2023, FERC addressed arguments raised on rehearing of its August 31, 2022, order accepting Midcontinent Independent System Operator, Inc.’s (“MISO”) proposal to establish a seasonal resource adequacy construct with availability-based resource accreditation (“August 2022 Order”). In doing so, FERC continued to find that MISO’s proposed transition from an annual planning resource auction to an independent auction to meet seasonal requirements is just and reasonable.…

Continue Reading On Rehearing, FERC Accepts MISO’s Seasonal Resource Adequacy Construct

On February 14, 2023, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) upheld FERC’s March 2021 order granting Broadview Solar, LLC’s (“Broadview”) hybrid solar and battery project qualifying facility (“QF”) status (see March 25, 2021 edition of the WER) based on FERC’s interpretation of the Public Utility Regulatory Policies Act of 1978 (“PURPA”). Specifically, the D.C. Circuit determined, among other things, that FERC’s interpretation that a QF owner can use the MW net output at the point of interconnection in determining whether a facility meets the 80 MW statutory maximum for small power production facility QF status under PURPA was reasonable.…

Continue Reading D.C. Circuit Upholds FERC Interpretation of PURPA Size Limitation Based on “Send out” to Point of Interconnection

On January 19, 2023, FERC established that a facility’s classification as transmission or distribution under criteria established in the Southwest Power Pool, Inc.’s (“SPP”) Open Access Transmission Tariff (“Tariff”) can be overcome in a challenge at the Commission if the protestors provide sufficient evidence to call into question the classification under the Tariff criteria. FERC found that once protestors present evidence that the facilities are distribution under FERC’s seven-factor test, the burden of proof shifts back to the filing transmission provider and transmission owner seeking a specific classification under Section 205 of the Federal Power Act to demonstrate its proposed classification under FERC’s seven-factor test. FERC found that GridLiance High Plains, LLC (“GridLiance”), as the applicable transmission owner, failed to carry this burden to demonstrate its facilities at issue were transmission facilities after such a challenge.…

Continue Reading FERC Affirms Burden of Persuasion Rests on Proponents of Transmission Asset Classifications under FERC’s Seven-Factor Test, Notwithstanding Tariff Classifications

On November 29, 2022, FERC conditionally accepted PJM Interconnection, L.L.C.’s (“PJM”) tariff revisions to transition from a serial first-come, first-served generator interconnection queue process to a first-ready, first-served clustered cycle approach. FERC found that the revisions will help reduce interconnection queue backlogs and delays.…

Continue Reading FERC Conditionally Accepts PJM Interconnection Reforms for a First-Ready, First-Served Clustered Cycle Approach

On October 28, 2022, FERC conditionally accepted Southwest Power Pool, Inc.’s (“SPP”) region-wide transmission cost allocation proposal. The revisions alter Attachment J of SPP’s Open Access Transmission Tariff (“Tariff”) and establish a waiver process through which, on a case-by-case basis, entities may request the costs of a specific transmission facility with a voltage level between 100 kV and 300 kV (“Byway Facility”) to be fully allocated to the SPP region on a postage-stamp basis—i.e., pursuant to a uniform regional rate. Commissioners James Danly and Mark Christie each dissented, respectively arguing that the revisions provide SPP too much discretion to allocate Byway Facilities on a regionwide basis and that the record did not show strong consensus among SPP states for the change in cost allocation.…

Continue Reading FERC Accepts SPP Region-Wide Transmission Cost Allocation Proposal

On August 26, 2022, Commissioner James Danly issued a statement in the FERC docket addressing PJM Interconnection, L.L.C.’s (“PJM”) replacement, focused Minimum Offer Price Rule (“Focused MOPR”). Commissioner Danly argued that the FERC Solicitor’s Office should not have filed its brief defending the Focused MOPR in the United States Court of Appeals for the Third Circuit (“Third Circuit”), and that doing so violated the Department of Energy Organization Act (“DOE Organization Act”) and the Administrative Procedure Act (“APA”). Following the statement, on September 7, 2022, certain Petitioners in the Third Circuit appeal proceedings filed a motion to strike FERC’s brief. Their motion argues that FERC’s brief should not have been filed because the Commission never voted to accept the Focused MOPR, and that filing the brief violates both the DOE Organization Act and constitutional limitations on the authority of executive officials. The Third Circuit has not yet acted on the motion.
Continue Reading Commissioner Danly Issues Statement Objecting to FERC Brief Defending MOPR in Third Circuit Appeal Proceedings; Third Circuit Petitioners Move to Strike FERC’s Brief

On July 28, 2022, FERC upheld changes to PJM Interconnection, L.L.C.’s (“PJM”) Reserve Market that it first required in a December 2021 order on voluntary remand from the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). FERC’s July 28 order continues to require PJM to: (1) consolidate its Tier 1 and Tier 2 Synchronized Reserve Products; (2) align reserve procurement in the day-ahead and real-time markets by establishing two 10-minute reserve requirements and one 30-minute reserve requirement in each market; (3) revert back to a stepped Operating Reserve Demand Curve (“ORDC”) and $850/MWh Reserve Penalty Factors; and (4) revert to a backward-looking Energy & Ancillary Services (“E&AS”) Offset in the Net Cost of New Entry calculation. The July 28 order also addressed challenges to the December 2021 order on the basis that the motion for voluntary remand was not filed in the D.C. Circuit pursuant to FERC’s tradition of polling the Commissioners for major litigation decisions. The order makes certain clarifications on the Chairman’s role to oversee the executive and administrative operation of FERC, including the direction of litigation. Commissioner James Danly filed a separate dissenting statement.
Continue Reading FERC Upholds PJM Reserve Market Changes, Clarifies Chairman’s Role to Oversee Major Litigation Decisions

On April 27, 2022, members of the PJM Interconnection, L.L.C. (“PJM”) Members Committed voted in favor of a suite of tariff reforms that PJM states will revamp and improve its generator interconnection process. In a press release issued that same day, PJM stated that the changes will create a faster, more efficient interconnection process, allowing PJM to better handle the influx of interconnection requests PJM has seen in recent years and will continue seeing into the future. In a press release dated April 28, 2022, PJM reported that it plans to file the proposal with FERC in May 2022.
Continue Reading PJM Will File Interconnection Queue Reform Proposal at FERC in May 2022

On April 29, 2022, the FERC rejected Midcontinent Independent System Operator Inc.’s (“MISO”) proposed tariff revisions that sought to “extend” MISO Transmission Owners’ option to self-fund transmission upgrades so as to apply to Necessary Upgrades to support the connection of Merchant High Voltage Direct Current (“MHVDC”) transmission into MISO. FERC found that MISO failed to show its proposal was just and reasonable because MISO argued that Network Upgrades and Necessary Upgrades were functionally identical yet only proposed to extend the self-funding option traditionally applied to Network Upgrades without also extending other funding options and protections for customers.
Continue Reading FERC Rejects MISO Proposal for Transmission Owners to Self-fund Necessary Upgrades to Connect Merchant HVDC Lines