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At its May 23, 2024 open meeting, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Proposed Rulemaking (“NOPR”) proposing to establish a one-year “reasonable period of time” for certifying authorities to act on requests for water quality certification under section 401 of the Clean Water Act (“CWA”).  The proposed rule also clarifies that all FERC authorizations “that have the potential to discharge into waters of the United States,” including exemptions from licensing, require either a section 401 water quality certification or waiver thereof.Continue Reading FERC Issues Notice of Proposed Rulemaking to Conform to EPA’s Recent CWA § 401 Rule

On May 13, 2024, the Commission announced two major transmission reform final rules: Building for the Future Through Electric Regional Transmission Planning and Cost Allocation (“Order No. 1920”) and Applications for Permits to Site Interstate Electric Transmission Facilities (“Order No. 1977”). Order No. 1920, which adopts specific requirements for how transmission providers must conduct long-term planning and allocate costs for regional transmission facilities, was the subject of significant debate at today’s meeting and only mustered two votes in support from the three sitting commissioners. The Commission unanimously approved Order No. 1977, which updates the process FERC will use in the limited circumstances in which it must exercise its authority over siting electric transmission lines, as directed by Congress in the Infrastructure Investment and Jobs Act of 2021 (“IIJA”).Continue Reading Divided FERC Announces Much-Anticipated Transmission Rules

On March 21, 2024, the Senate Committee on Energy and Natural Resources held a hearing to consider President Biden’s three recent nominations to the Federal Energy Regulatory Commission (“FERC” or “Commission”): (1) David Rosner for the term expiring June 30, 2027; (2)Lindsay S. See for the term expiring June 30, 2028; and (3)Judy W. Chang for the term expiring June 30, 2029.Rosner is an energy industry analyst at FERC and led efforts related to the Commission’s rulemaking on energy storage resources, electric transmission, offshore wind integration, fuel security, and natural gas-electric coordination. See is the Solicitor General of West Virginia, and manages West Virginia’s civil and criminal appellate dockets, with a focus on regulatory and administrative law matters. Chang is an energy economics and policy analyst and was the former Undersecretary of Energy and Climate Solutions for Massachusetts, where she set policies for the Commonwealth’s energy sector.Continue Reading Senate Committee Considers Three New FERC Nominees

Executive Summary

On March 21, the Federal Energy Regulatory Commission (FERC or the Commission) issued Order No. 2023-A (Final Rule), which reaffirmed aspects of Order No. 2023 — the Commission’s landmark order updating its generator interconnection procedures. As detailed further in this summary, the Commission largely upheld Order No. 2023, including some of the more controversial aspects of the order, such as penalties and the transmission capacity “heat map,” and provided further clarity on other aspects.Continue Reading Troutman Pepper Summary of FERC Order No. 2023-A on Generator Interconnections

At the February 15, 2024, FERC open meeting and in four orders issued the same day, FERC established a new policy governing its issuance of preliminary permits under section 4(f) of the Federal Power Act (“FPA”), pursuant to which it will not issue preliminary permits for projects located on Tribal lands if the Tribe on whose land the project is proposed to be located opposes the permit. FERC explained that this policy change is based on the agency’s commitment to ensuring that Tribal concerns and interests are considered whenever FERC’s actions or decisions have the potential to adversely affect Tribes or Tribal trust resources. To avoid future permit denials, FERC emphasized that potential applicants should fully inform Tribes about proposed projects on their lands before filing the permit application.Continue Reading FERC Establishes New Policy to Reject Hydropower Preliminary Permit Applications Based on Tribal Opposition to Projects Located on Their Tribal Lands

On January 18, 2024, FERC granted a certificate of public convenience and necessity to Transcontinental Gas Pipe Line Company, LLC (“Transco”) to construct and operate the Texas to Louisiana Energy Pathway Project (“Texas to Louisiana Project”), an approximately $91.8 million expansion project designed to provide 364,400 dekatherms per day of firm transportation service to EOG Resources, Inc. (“EOG Resources”). The Texas to Louisiana Project will provide firm transportation service to EOG Resources through a combination of (1) the conversion of Transco’s IT Feeder System to firm transportation service, (2) the turnback of certain firm transportation service by Transco’s existing customers, and (3) the addition of incremental firm transportation service made possible by the construction of a new compressor station and modifications to existing compressor stations in Texas. The Texas to Louisiana Project is fully subscribed by EOG Resources pursuant to a fifteen-year precedent agreement (“Project Precedent Agreement”).Continue Reading FERC Grants Certificate to Transco’s Texas to Louisiana Energy Pathway Project

On December 12, 2023, FERC staff offered information and recommendations to help registered entities (i.e., users, owners, and operators of the bulk electric system) improve their compliance with mandatory Critical Infrastructure Protection (“CIP”) reliability standards and their overall cybersecurity postures (the “Report”).  The recommendations are based on FERC staff’s non-public CIP audits of U.S.-based North American Electric Reliability Corporation (“NERC”) registered entities during Fiscal Year 2023, which included the participation of NERC and the regional entities.  FERC staff found that registered entities generally met the mandatory requirements of the CIP Standards, although potential noncompliance and security risks remained. FERC staff also identified and made recommendations concerning other voluntary best practices that could improve cybersecurity.  FERC staff explained that the CIP standards aim to mitigate cybersecurity and physical security risks to the bulk electric system’s facilities and equipment.  The Commission approved the first set of eight mandatory CIP standards on cybersecurity on January 28, 2008, and has since revised the standards to respond to emerging cybersecurity issues.  FERC began its CIP standards audit program for registered entities in 2016 and has conducted CIP audits each year since.  Continue Reading FERC Staff Issues Report on Lessons Learned from 2023 CIP Audits

On December 1, 2023, the United States Court of Appeals for the Third Circuit (“Third Circuit”) upheld PJM Interconnection, L.L.C.’s (“PJM”) latest minimum offer price rule (the “Focused MOPR”), denying challenges to both the substance of the rule and FERC’s “constructive” approval of the rule, which went into effect after the Commissioners deadlocked two-to-two and failed to issue a timely order accepting or denying the Focused MOPR. The Third Circuit held that a court’s review of FERC’s “action,” whether actual or constructive, proceeds under the same deferential standards in the Federal Power Act (“FPA”) and the Administrative Procedure Act (“APA”), and encompasses the Commissioners’ mandatory statements setting forth their reasoning for approving or denying the filing. On the merits, the Third Circuit held that FERC’s acceptance of PJM’s Focused MOPR policy was not arbitrary and capricious, pointing to arguments laid out in then-Chairman Glick’s and Commissioner Clements’ Joint Statement supporting the Focused MOPR.Continue Reading Third Circuit Upholds FERC’s Approval of PJM’s Focused MOPR

On November 16, 2023, FERC granted Virginia Electric and Power Company d/b/a Dominion Energy Virginia’s (“Dominion”) petition requesting the Commission declare that Dominion’s planned liquefied natural gas (“LNG”) production, storage, and regasification facility (“Back-up Fuel Project” or “Project”) in Greensville County, Virginia would be exempt from the Commission’s jurisdiction under section 7 of the Natural Gas Act (“NGA”). In so doing, FERC determined the Project satisfied the “Hinshaw Exemption” under NGA section 1(c).Continue Reading FERC Finds Dominion LNG Back-up Fuel Project Satisfies Hinshaw Exemption Under the NGA

On September 29, 2023, FERC accepted part of Arizona Public Service Company’s (“APS”) proposed interconnection queue reforms to transition from a first come, first served cluster study process to a first ready, first served cluster study process. Generally, FERC accepted APS’s proposals that would prevent speculative projects from moving through the queue, while rejecting proposals that were not consistent with or superior to the pro forma Large Generator Interconnection Procedures (“LGIP”). APS’s interconnection queue reform proposal was submitted before FERC issued Order No. 2023; the approved reforms do not constitute APS’s Order No. 2023 compliance filing and are based on FERC’s currently effective pro forma LGIP.Continue Reading FERC Partially Accepts Arizona Public Service Company’s Proposed Interconnection Queue Reforms