On January 3, 2023, President Joe Biden named Willie Phillips acting chairman of FERC. Chairman Phillips first joined the Commission in December 2021 after being nominated by President Biden and confirmed by the Senate. His term expires June 30, 2026.
FERC Directs NERC to Develop Internal Network Security Monitoring for High and Medium Impact Bulk Electric System Cyber Systems
On January 19, 2023, the Commission issued a final rule that directs the North American Electric Reliability Corporation (“NERC”) to develop and submit reliability standards for monitoring high and medium impact bulk electric systems with high-speed internet connections. The Commission stated that the new reliability standards would assist entities in monitoring network traffic inside the bulk electric systems and detecting unauthorized activity inside those systems.
FERC Accepts Arizona Public Service Company’s Proposal to Adopt Flowgate ATC Methodology and Denies Its Request to Waive TTC Posting Requirements
On December 15, 2022, FERC issued an order accepting Arizona Public Service Company’s (“APS”) revisions to its Open Access Transmission Tariff (“Tariff”) that would allow APS to begin using the Flowgate Methodology for calculating Available Transfer Capability (“ATC”) instead of its current Rated System Path Methodology. In addition, FERC denied APS’s request to waive the requirement to post its Total Transfer Capability (“TTC”) values on the Open Access Same Time Information System (“OASIS”).
FERC Conditionally Accepts PJM Interconnection Reforms for a First-Ready, First-Served Clustered Cycle Approach
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.
FERC Finds PUHCA Exemptions Appropriate for Holding Company Ownership of Grid-Charging Storage Facilities Selling at Retail
On November 17, 2022, FERC granted a petition for declaratory order (“Petition”) filed by Ameresco, Inc. (“Ameresco”) and its subsidiaries (collectively with Ameresco, “the Ameresco Companies”) requesting exemption from certain “books and records” requirements under the Commission’s Public Utility Holding Company Act of 2005 (“PUHCA”) regulations because its ownership of certain grid-charged battery storage subsidiaries might otherwise have caused Ameresco to lose its automatic “books and records” exemption under PUHCA. FERC granted the Petition, notwithstanding the fact that some of the storage subsidiaries would not otherwise qualify for the non-traditional utility “books and records” exemption, because the “Ameresco Companies’ books, accounts, memoranda, and other records are not relevant to the jurisdictional rates of Ameresco Companies.”
FERC Accepts SPP Region-Wide Transmission Cost Allocation Proposal
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.
FERC Sustains Prior Order Approving Revisions to SPP’s Tariff Establishing Uniform Zonal Planning Criteria
On October 20, 2022, the Federal Energy Regulatory Commission (the “Commission”) issued an order addressing Oklahoma Gas and Electric Company, GridLiance High Plans LLC, and the Indicated SPP Transmission Owners’ (consisting of Evergy Kansas Central, Inc., Evergy Metro, Inc., Evergy Missouri West, Inc., and ITC Great Plains, LLC) (together, the “Petitioners”) requests for rehearing and alternatively request for clarification of the Commission’s June 2022 Order accepting revisions to Southwest Power Pool, Inc.’s (“SPP”) Open Access Transmission Tariff (“Tariff”) (“Rehearing Order”). The Commission denied the Petitioners’ request for rehearing and sustained its June 2022 Order establishing SPP’s uniform Zonal Planning Criteria.
Tenth Circuit Resolves Jurisdictional Dispute, Finds FPA Jurisdictional Limit Does Not Apply to Non-FERC Agency Orders
On September 30, the U.S. Court of Appeals for the Tenth Circuit issued an opinion in Save the Colorado, et al. v. Spellmon. The case arose from various conservation group challenges to the U.S. Army Corps of Engineers (Corps) and U.S. Fish and Wildlife Service’s (Service) decision to grant the city and county of Denver, acting through its Board of Water Commissioners (Denver Water or municipality), a discharge permit to expand the reservoir of its Gross Reservoir Hydroelectric Project, which is licensed by the Federal Energy Regulatory Commission (FERC or Commission). The central issue revolved around whether the U.S. courts of appeals have exclusive jurisdiction over challenges to non-FERC decisions arising under statutes related to the development of hydropower projects under the Federal Power Act (FPA). The Tenth Circuit ultimately held that petitions against orders by non-FERC agencies do not warrant exclusive jurisdiction in the U.S. courts of appeals.
DOE Announces $13.5M Distribution to Hydroelectric Facilities Through the Hydroelectric Production Incentive Program
On September 9, the U.S. Department of Energy (DOE) announced that it would distribute $13.5 million to incentivize hydroelectric generation in the United States. The financial support is part of the Hydroelectric Production Incentive Program, which provides funding for electricity generated and sold from dams and other water infrastructure projects that will add to or expand hydropower generation.
Senator Manchin’s Permitting Reform Bill Pulled From the Continuing Resolution
On September 21, Senator Joe Manchin (D-WV), Chairman of the Senate Energy and Natural Resources Committee, released the text of the Energy Independence and Security Act of 2022 (Act). This comprehensive Act was set to be included in the upcoming Continuing Resolution; however, on September 27, Manchin pulled the Act from the Continuing Resolution given bipartisan opposition. The Act sought to improve energy production in the United States by accelerating agency review of certain energy projects and modernizing permitting laws.