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 March 19, 2021, FERC set aside a September 1, 2020 order (“September Order”) that had upended 40 years’ worth of FERC precedent regarding how to determine the 80MW threshold for small power production qualifying facilities (“QFs”) under the Public Utility Regulatory Policies Act of 1978 (“PURPA”). Specifically, FERC rejected the September Order’s denial of QF status to a hybrid photovoltaic solar and storage facility owned by Broadview Solar LLC (“Broadview”) as a result of the facility’s 160 MW gross capacity, as opposed to the facility’s 80 MW maximum net output or “send out.” After further consideration, FERC explained that it had erred by departing from and overturning its longstanding “send out” precedent. Commissioner Danly dissented, arguing that the September Order correctly applied PURPA in relying on gross power production capacity.
Continue Reading FERC Reverses September 2020 Order, Reinstating Long-Standing “Send Out” Test for Small Power Production QF 80MW Threshold

On February 26, 2021, FERC accepted a proposal from Entergy Services, LLC (“Entergy”) to amend a wholesale rate schedule, the Unit Power Sales Agreement (“UPSA”), subject to refund and set the matter for hearing.  FERC also instituted an investigation under section 206 of the FPA to allow customers to recover refunds associated with any further rate reduction, consolidated various related Entergy proceedings on accumulated deferred income taxes (“ADIT”), set a hearing procedure and held those procedures in abeyance pending the issuance of further FERC orders.
Continue Reading FERC Sets Entergy’s Proposal to Amend the Unit Power Sales Agreement for Hearing to Determine Whether Customers Should Receive a Bigger Rate Decrease

On February 18, 2021, FERC took action in a multi-year dispute over the PJM Interconnection’s capacity market pricing rule known as the Minimum Offer Price Rule (or, “MOPR”) by vacating a single troublesome footnote from its last order, making way for PJM to move ahead with its annual capacity auction after years of delay. The U.S. Court of Appeals for the Seventh Circuit will soon take up a host of appeals of FERC’s decisions on the controversial MOPR.
Continue Reading In PJM MOPR Proceeding, FERC Vacates Footnote Prompting Danly Dissent

On December 21, 2020, FERC modified its previous cost-of-service compensation decisions allowing Constellation Mystic Power, LLC (“Mystic”) to continue operating two gas-fired generation facilities (“Mystic 8 and 9”) fueled exclusively by an affiliate, Everett Marine Terminal (“Everett”), which, like Mystic, is owned by Exelon Generation Company, LLC (“Exelon”). Commissioner Richard Glick dissented, reiterating his belief that FERC has exceeded its jurisdiction to “bail out” the liquified natural gas (“LNG”) import terminal.
Continue Reading FERC Alters Mystic’s Cost-of-Service Agreement; Commissioner Glick Dissents Again

On December 17, 2020, FERC issued an order concluding its review of the index level used to determine annual changes to oil pipeline rate ceilings, establishing an index level of Producer Price Index for Finished Goods plus 0.78% (PPI-FG+0.78%), and also issued a Withdrawal of Proposed Policy Statement on Oil Pipeline Affiliate Contracts, the latter of which drew a dissenting opinion from Commissioner Richard Glick.
Continue Reading FERC Establishes New Oil Index Level and Withdraws Proposed Affiliate Contract Guidance for Oil Pipelines

On November 19, 2020, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing to reform its regulations and pro forma OATT to improve the accuracy and transparency of transmission line ratings. According to FERC, more accurate line ratings will reduce congestion costs and result in substantial cost savings for consumers, whereas inaccurate line ratings may result in unjust and unreasonable rates.
Continue Reading FERC Issues Proposed Rulemaking on Transmission Line Ratings

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 issued Order No. 872-A, an order denying rehearing and clarifying portions of Order No. 872, which revised the regulations implementing the Public Utility Regulatory Policies Act of 1978 (“PURPA”). In Order No. 872-A, FERC affirmed its previous PURPA regulation amendments in Order No. 872, but provided further explanation regarding six key reforms: (1) states’ use of tiered avoided cost pricing; (2) states’ use of variable energy rates in qualifying facility (“QF”) contracts and availability of utility avoided cost data; (3) the role of independent entities overseeing competitive solicitations that set avoided cost rates; (4) the circumstances under which a small power production QF needs to recertify; (5) the application of the rebuttable presumption of separate sites for the purpose of determining the power production capacity of small power production facilities; and (6) the PURPA section 210(m) rebuttable presumption of nondiscriminatory access to markets and accompanying regulatory text.
Continue Reading FERC Denies Rehearing, But Clarifies Various Aspects of the New PURPA Rules