Troutman Pepper Locke

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On September 30, 2015, the U.S. District Court for the District of Wyoming (“District Court”) granted motions for preliminary injunction filed by various states, tribes, and industry members (“Petitioners”) seeking to enjoin the Bureau of Land Management (“BLM”) from regulating hydraulic fracturing under its final hydraulic fracturing rule (“Final Rule”).  In granting the preliminary injunction, the District Court held that (1) the petitioners were likely to succeed on the merits because the BLM acted without Congressional authority, the Final Rule was arbitrary and capricious, and the BLM failed to adequately consult with certain Indian tribes; (2) affected states, tribes, and industry members would suffer irreparable harm without the preliminary injunction; and (3) balancing interests between the Petitioners and the BLM and intervening environmental groups favored the Petitioners.

On October 1, 2015 the United States Environmental Protection Agency (“EPA”) adopted a more stringent air quality standard for ground-level ozone emissions that reduces the national standard from 75 parts per billion (“ppb”) to 70 ppb. By promulgating a new ozone standard, EPA says it aims to reduce smog from ground-level emission sources, including power plants, smoke stacks, and automobiles. In conjunction with the new standard, EPA also issued an “Implementation Memo,” which outlines the agency’s plans for addressing various implementation issues under the new standard.

On September 16, 2015, the Commission dismissed a petition filed by the Working group for Investment in Reliable and Economic electric Systems (“WIRES”) in which WIRES requested that the Commission institute a generic proceeding to determine whether the Commission’s discounted cash flow (“DCF”) methodology continues to be the most appropriate method of computing public utility Return on Equity (“ROE”).

On September 21, 2015, FERC Office of Enforcement Staff issued a Notice of Alleged Violations against Total Gas & Power, North America, Inc. (“TGPNA”) and TGPNA’s West Desk traders and supervisors, Therese Nguyen and Aaron Hall.  FERC Staff stated that in a nonpublic investigation, the Office of Enforcement Staff made a preliminary determination that TGPNA and its traders and supervisors violated section 4A of the Natural Gas Act and FERC’s Anti-Manipulation Rule.

On September 22, 2015, President Obama’s Administration announced concurrent actions intended to help achieve certain goals established in the Administration’s 2014 comprehensive plan to modernize infrastructure permitting.  Those actions include an enhanced Federal Infrastructure Permitting Dashboard (“Dashboard”), new guidance establishing metrics for the permitting and review of infrastructure projects, and the first update since 1988 of the Synchronizing Environmental Reviews for Transportation and Other Infrastructure Projects handbook (“Red Book”).

On September 17, 2015, FERC issued a notice of proposed rulemaking (“NOPR”) that seeks to require each regional transmission organization (“RTO”) and independent system operator (“ISO”) to deliver to FERC electronic data on an ongoing basis from their respective market participants that would (1) list their “Connected Entities,” (2) describe the nature of the relationship with each Connected Entity, and (3) identify each market participant using a common alpha-numeric identifier.  Among other reasons, FERC stated that the data would assist FERC in screening and investigating cases involving market manipulation by providing the Office of Enforcement with a more complete view of the relationships between market participants and the incentives underlying their trading activities.

On September 4, 2015, the Northwest Power Pool (“NWPP”) members’ Market Assessment and Coordination Committee (“MC”) submitted a petition for declaratory order, requesting FERC make determinations with respect to four categories of issues associated with the development of the NWPP’s Centrally Cleared Energy Dispatch Market (“CCED Market”). The CCED Market would provide a platform for voluntary 15-minute trading at a single-market clearing price.

On September 17, 2015, the Commission issued a Notice of Proposed Rulemaking (“NOPR”) in which it proposed to amend its regulations to require the North American Electric Reliability Corporation (“NERC”) to provide the Commission and Commission staff with on-going, non-public access to three NERC databases: (i) the Transmission Availability Data System (“TADS”) database; (ii) the Generating Availability Data System (“GADS”) database; and (iii) the protection system misoperations database.  According to the Commission, the proposal is intended to provide the Commission with “information necessary to determine the need for new or modified Reliability Standards and to better understand NERC’s periodic reliability and adequacy assessments.”

On September 17, 2015, the Commission issued a Notice of Proposed Rulemaking (“NOPR”) to address two existing practices that FERC believes result in distorted price signals.  The NOPR proposes to address this problem by: (1) requiring that each organized market align settlement and dispatch intervals by settling real-time energy and operating reserves transactions financially at the same time interval that it dispatches energy and prices operating reserves; and (2) requiring that each organized market trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs.