Troutman Pepper Locke

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On December 7, 2015, the U.S. Commodity Futures Trading Commission (“CFTC”) issued an order accepting an Offer of Settlement from Total Gas & Power North America, Inc. (“TGPNA”) and Therese Tran (“Tran”) (together “Respondents”) for their alleged violation of the CFTC’s regulations prohibiting manipulation or attempted manipulation. The CFTC found that TGPNA, through Tran and other traders under Tran’s direction, attempted to manipulate natural gas monthly index settlement prices through physical fixed-price trading during bid-week.

On November 20, 2015, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) rejected the Federal Energy Regulatory Commission’s (“FERC”) holding that Federal Power Act (“FPA”) Section 7(a) limits the municipal preference in original licensing for hydroelectric projects to municipalities located in the vicinity of the water resource to be developed. The D.C. Circuit case, Western Municipal Power Agency v. FERC, No. 14-1153 (issued Nov. 20, 2015), was filed on appeal of FERC orders refusing to grant a municipal preference to Western Minnesota. The D.C. Circuit granted Western Minnesota Municipal Power Agency’s (“Western Minnesota”) petition for review, vacated the Commission’s underlying orders, and remanded the proceeding to FERC.

On November 18, 2015, U.S. Commodity Futures Trading Commission (“CFTC”) Staff issued its Swap Dealer general de minimis exception preliminary report, which provides data analyzing swap dealing activity and seeks comments and additional information on the exception. While the preliminary report does not offer alternatives to the general de minimis exception, CFTC Staff is seeking public comment on issues that include the methodology for calculating dealing activity, the threshold for the de minimis exception, and alternative approaches to the de minimis exception.

On November 24, 2015, FERC issued an order accepting proposed CAISO tariff revisions, closing what has been described by CAISO as a loophole in CAISO’s generator interconnection process. CAISO proposed the corrective tariff revisions to prevent interconnection customers from taking advantage of CAISO’s annual opportunity to decrease the size of queued projects. CAISO expressed concern that queued projects were using this “downsizing” process for the sole purpose of reducing the amount of financial security that an interconnection customer could be required to forfeit upon withdrawal from CAISO’s interconnection queue.

On November 19, 2015, FERC issued an order on remand from the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) finding that, when considered with the other projects involving construction on the 300 Line pipeline, Tennessee Gas Pipeline, L.L.C.’s (“Tennessee”) Northeast Upgrade Project does not result in significant additive or cumulative impacts. FERC originally held that it did not segment its environmental review of the Northeast Upgrade Project from that of the 300 Line Project and that its cumulative impacts analysis was not deficient. However, the D.C. Circuit remanded the additive and cumulative impacts analysis to FERC for further consideration.

On November 19, 2015, FERC granted Dominion Transmission, Inc.’s (“Dominion”) request for a certificate to construct and operate pipeline, compression, regulation equipment, valves, and other facilities in Ohio and Pennsylvania (the “Lebanon West II Project”) pursuant to section 7(c) of the Natural Gas Act. Dominion stated that the proposed Lebanon West II Project will enable it to provide an additional 130,000 dekatherms per day of firm transportation service from Dominion’s Mark West Liberty Bluestone Interconnection in Butler County, Pennsylvania, to the Lebanon-Texas Interconnection with Texas Gas Transmission Corporation in Warrant County, Ohio.

On November 19, 2015, FERC issued an order granting rehearing of its prior June 30, 2015 order accepting and suspending tariff records, subject to refund, filed by Alliance Pipeline L.P. (“Alliance”). In the prior order, FERC had set for hearing, among other issues, Alliance’s proposal to eliminate Authorized Overrun Service (“AOS service”) from its Rate Schedule FT-1. In the rehearing order, FERC held that Alliance could not eliminate AOS service from its Rate Schedule FT-1, because it had entered into negotiated agreements that set specific, negotiated rates for AOS service, and hence removal of AOS service from its tariff would violate these negotiated transportation service agreements without justification. FERC held that the Memphis Clause in each of the negotiated transportation service agreements would permit Alliance to modify tariff provisions of general applicability to all shippers where the Commission determined such modification to be just and reasonable, but did not support modifying, without some further justification, rates or services specifically negotiated over and agreed upon in the negotiated transportation service agreements. On the other hand, FERC directed Alliance to eliminate from the GT&C section of its tariff provisions providing that AOS service would have priority over IT service. FERC held that these provisions were both (1) contrary to its policy that overrun service and IT service should have equal priority and (2) not the subject of specific negotiation and agreement in the negotiated transportation service agreements.

On November 24, 2015, the Commission accepted and suspended proposed amendments to PJM Interconnection L.L.C.’s (“PJM”) Open Access Transmission Tariff (“OATT”) that allocated cost responsibility for two transmission upgrades: the Bergen-Linden Corridor Project, and the Artificial Island Project. In suspending the proposed amendments, the Commission ordered staff to convene a technical conference on whether the use of the solution-based distribution factor (“DFAX”) cost allocation methodology results in rates that are just and reasonable when applied to transmission enhancements and expansions that address reliability violations that are not related to flow on the planned transmission facility, as approved by the Commission in Schedule 12 of the PJM OATT for assigning the costs of transmission upgrades.

On November 17, 2015, the Federal Energy Regulatory Commission (“Commission”) terminated the proceeding in which it was considering a proposed reporting requirement that would have required quarterly reporting of every natural gas transaction within the Commission’s Natural Gas Act jurisdiction that entails physical delivery for the next day or for the next month.  The Commission decided to terminate based on its determination that the proposed reporting requirement is not necessary at this time.

On November 20, 2015, the Commission amended its regulations to permit the sale of primary frequency response service at market-based rates by sellers with market-based rate authority for sales of energy and capacity.  As defined by the Commission, “primary frequency response service” is “a resource standing by to provide autonomous, pre-programmed changes in output to rapidly arrest large changes in frequency until dispatched resources can take over.”  The Commission clarified that sellers can provide primary frequency response service “irrespective of what specific equipment they may choose to use to make such sales.”