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On September 4, 2015, the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) remanded a pair of FERC decisions that partially approved two settlement agreements between Idaho Power, its holding company IDACORP (together, “IDACORP”), and the Cities of Tacoma and Seattle, respectively. These settlement agreements arose out of one of the many FERC proceedings stemming from the California Energy Crisis. When FERC partially rejected the settlement agreements, IDACORP petitioned the Ninth Circuit for review, arguing that FERC failed to follow its own precedent and regulations in partially rejecting the agreements. The Ninth Circuit agreed, remanded the proceeding to FERC, and mandated that it issue a decision within sixty days.

On September 1, 2015, the Commission granted Northeast Energy Associates’ (“NEA”) request for a one-time waiver of the timing requirements of section III.13.1.1.2.1 of ISO New England Inc.’s (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”).  The waiver allows consideration of NEA’s New Capacity Show of Interest Form (“Show of Interest Form”) for a 25 MW incremental increase of capacity at NEA’s Bellingham Energy Center (“Bellingham”), even though NEA submitted the requisite interconnection deposit the morning after the deadline set forth in the rules governing ISO-NE’s Forward Capacity Market (“FCM”).

On September 1, 2015, FERC announced that Chairman Norman Bay had named Max Minzner as general counsel to the Commission.  Prior to being named general counsel, Mr. Minzner served as a staff advisor to Chairman Bay.  Prior to joining FERC, Mr. Minzner was a professor at the University of New Mexico School Of Law and the Benjamin N. Cardozo School of Law.  Mr. Minzner is a graduate of Brown University and Yale Law School.

On July 22, 2015, the Commission determined that demand response and energy efficiency resources should be able to participate in two PJM Interconnection LLC (“PJM”) transition auctions created to implement a new capacity product called Capacity Performance Resources.  The Commission found that, while PJM had correctly interpreted the relevant provisions of its Open Access Transmission Tariff (“OATT”) as not allowing non-generation resources like demand response and energy efficiency to participate in the transition auctions, such exclusion was nonetheless unjust, unreasonable, and unduly discriminatory.  The Commission ordered PJM to submit revisions to its OATT, and a revised timeline for both transition auctions, within 15 days of the date of the order.

On July 27, 2015, FERC released its 2015 version of the Energy Primer: A Handbook of Energy Market Basics (“Energy Primer”).  The Energy Primer was developed by staff from the Division of Energy Market Oversight within FERC’s Office of Enforcement.  First released in 2012, the Energy Primer is a manual that provides a broad overview of the physical wholesale markets for natural gas and electricity and energy-related financial markets.  The 2015 release of the Energy Primer provides an update of the changes in the energy industry since its 2012 release.

On July 28, 2012, FERC’s Office of Energy Projects (“OEP”) released a 32-page manual titled “Suggested Best Practices for Industry Outreach Programs to Stakeholders” (“Manual”).  In doing so, OEP states that the purpose of the Manual is to identify best practices for natural gas project developers to “effectively engage stakeholders in the application process for siting, construction and operation of interstate natural gas facilities and LNG terminals.”

On July 16, 2015, FERC’s Office of Enforcement (“Enforcement”) released a “Staff Notice of Alleged Violations” (“Notice”) stating that it had preliminarily determined that Columbia Gas Transmission LLC (“Columbia Gas”) violated Part 4 of the General Terms and Conditions of the pipeline’s FERC Gas Tariff by posting notices of auctions of available firm capacity on the password-protected side of its Electronic Bulletin Board (“EBB”), rather than the public side of the EBB, between January 1, 2010 to May 1, 2013.

On July 17, 2015, the North American Electric Reliability Corporation (“NERC”) submitted a compliance filing with the Commission regarding NERC’s Risk-Based Registration (“RBR”) initiative, including renewed requests for the elimination of the Load-Serving Entity (“LSE”) registration function.  The Commission previously rejected, without prejudice, NERC’s proposal to eliminate the LSE registration function in its March 19, 2015 order (the “March 19 Order”) on NERC’s RBR initiative.

On July 16, 2015, the California Independent System Operator Corporation’s (“CAISO”) Board of Governors approved a new proposal (the “Proposal”) that will allow aggregated distributed energy resources to participate in the California wholesale energy market.  Under the approved framework, distributed energy resources, such as rooftop solar, energy storage, and plug-in electric vehicles, will be allowed to aggregate together to meet CAISO’s 500 kW minimum participation requirement.  CAISO stated that it will continue to develop supporting tariff language for the framework; it intends to submit such language to FERC for approval later this year.

On July 13, 2015, the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) upheld the State of Colorado’s renewable portfolio standard (“RPS”) as valid under the dormant commerce clause.  In doing so, the Tenth Circuit held that the RPS (1) was not a price control statute, (2) did not link prices in Colorado with those paid out of state, and (3) did not discriminate against out-of-state electric generators.  As a result, Colorado may continue to require that 20 percent of all electricity sold to Colorado consumers, regardless of where it is produced, comes from renewable sources.