On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), sitting en banc, upset FERC’s long-used practice of granting itself more time to consider requests for rehearing of its orders by issuing “tolling orders.” FERC’s prior use of tolling orders prevented parties from seeking judicial review of a Commission order, but did not stay the effect of that order. The crux of the court’s decision is that the Natural Gas Act (“NGA”) gives FERC four express options to address a request for rehearing, all of which must be taken within thirty days, but deciding only to grant itself more time is not one of those options. The decision marks a sea change in FERC procedure, and raises a host of questions for pending and future proceedings under both the NGA and its companion statute, the Federal Power Act (“FPA”).

On July 2, 2020, FERC Chairman Neil Chatterjee and Commissioner Richard Glick issued a joint statement requesting that Congress pass legislation “providing FERC with a reasonable amount of additional time to act on rehearing requests involving orders under both the Natural Gas Act and the Federal Power Act.”  The statement goes on to say that “any such legislation should make clear that, while rehearing requests are pending, the Commission should be prohibited from issuing a notice to proceed with construction and no entity should be able to begin eminent domain proceedings involving the projects addressed in the orders subject to those rehearing requests.”


Continue Reading In Significant Order on FERC Procedure, En Banc D.C. Circuit Rejects FERC’s Use of Tolling Orders under the Natural Gas Act, Raising Significant Implementation Questions for All Pending and Future Proceedings

In a policy statement issued October 19, 2017, FERC revised its longstanding approach to setting the license terms for hydroelectric projects.  The new policy establishes a default term of 40 years for non-federal projects.  The default term can be shortened or extended in certain identified circumstances.
Continue Reading FERC Issues Policy Statement Extending License Terms for Hydro Projects

On September 29, 2017, United States Department of Energy (“DOE”) Secretary Rick Perry took the unusual step of proposing a rule for final action by the Federal Energy Regulatory Commission (“FERC”).  Secretary Perry’s initiative, a DOE-issued Notice of Proposed Rulemaking (“NOPR”) under section 403 of the Department of Energy Organization Act (“DOE Act”) (42 U.S.C. § 7173), urges FERC to act extremely quickly to enact rules requiring regional transmission organizations and independent system operators (“RTOs/ISOs”) to provide just and reasonable rates for “fuel-secure” generation units (e.g., coal and nuclear units).  See Grid Resiliency Pricing Rule, Docket No. RM17-3-000, at 4–5 (Sept. 29, 2017) (“DOE NOPR”). 
Continue Reading Department of Energy Proposes FERC-Authorized Full Cost Recovery for Certain Nuclear and Coal Power Generation

On November 17, 2016, FERC issued a final rule amending and clarifying its regulations to implement provisions of the Fixing America’s Surface Transportation Act (the “FAST Act”) regarding the designation, protection, and sharing of Critical Energy/Electric Infrastructure Information (“CEII”). In doing so, FERC established criteria and procedures for the designation of CEII, prohibited unauthorized disclosure of CEII, created sanctions for the unauthorized disclosure of CEII by FERC personnel, and permitted the voluntary sharing of CEII among appropriate entities.
Continue Reading FERC Adopts FAST Act Provisions on Critical Infrastructure Information

On November 4, 2016, the U.S. Court of Appeals for the D.C. Circuit (the “D.C. Circuit”) rejected Sierra Club’s arguments that FERC’s environmental review under the National Environmental Policy Act of 1969 (“NEPA”) of Cheniere Energy Inc.’s (“Cheniere”) Corpus Christi, Texas liquefied natural gas (“LNG”) export project (the “Corpus Christi Project”) was inadequate. Notably, the D.C. Circuit held that FERC does not have to address the indirect environmental effects of anticipated exports of LNG in its NEPA review because the U.S. Department of Energy (the “DOE”) has sole authority to approve the export of natural gas.
Continue Reading D.C. Circuit Denies Review, Upholds FERC Approval of Corpus Christi LNG Facility

Donald J. Trump (R) was elected 45th President of the United States yesterday, a development that will likely change the way energy companies interact with regulators and the federal government. Without addressing the political issues associated with the race itself, we provide the following initial thoughts on practical issues regarding FERC associated with a shift in political party control of the Executive Branch, an event that has not affected Washington, D.C. since late 2008/early 2009.

Specifically, FERC currently has three sitting Commissioners, all Democrats. Mr. Trump’s election will permit his administration to dramatically change the make-up of the Commission. He may be able to appoint as many as four new Commissioners in 2017, and will almost certainly appoint a new Chair upon his inauguration. Notably, given the timing of the confirmation process for new FERC Commissioners, the current sitting Commissioners could be in control of FERC through at least April of 2017 assuming none of them resign in the interim. We explain below how these FERC changes will happen and provide a general sense of the timeline for new Commissioners and new leadership to be installed.
Continue Reading Special Update Regarding Presidential Election and Impact on the Federal Energy Regulatory Commission (“FERC”)

Donald J. Trump (R) was elected 45th President of the United States yesterday, a development that will likely change the way energy companies interact with regulators and the federal government. Without addressing the political issues associated with the race itself, we provide the following initial thoughts on practical issues regarding FERC associated with a

On June 17, 2016, FERC declined to exercise primary jurisdiction over an interconnection dispute between Cottonwood Wind Project, LLC (“Cottonwood”) and Nebraska Public Power District (“NPPD”) because FERC determined that the controversy centered on the parties’ actions and that resolution of the case would only affect the parties to the specific agreement at issue. Specifically, FERC explained that the dispute over the interconnection agreement, which was based on FERC’s pro forma Large Generator Interconnection Agreement (“LGIA”), was a contractual dispute that failed to satisfy the factors set out in FERC’s “Arkla” test. As a result, FERC’s order dismissed the complaint brought by Cottonwood against the NPPD, which alleged that certain pre-construction authorizations were required under the parties’ LGIA. FERC’s refusal to assume jurisdiction over the dispute likely means a court will have to resolve the case.
Continue Reading FERC Declines to Exercise Primary Jurisdiction Over Interconnection Dispute