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On May 23, 2014, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated FERC Order No. 745, “Demand Response Compensation in Organized Wholesale Energy Markets” in its entirety as an ultra vires agency action, explaining that FERC’s rule overstepped its authority, “encroaching on the states’ exclusive jurisdiction to regulate the retail market.”  While the court based its decision on jurisdictional grounds, it said it would have vacated the order on substance also, concluding it was arbitrary and capricious to promulgate rules that over-compensate demand response providers.  The panel was split two to one.

On May 14, 2014, the Interagency Infrastructure Steering Committee released its plan to address permitting for large-scale infrastructure, specifically electric and natural gas projects.  The Plan (titled “Implementation Plan for the Presidential Memorandum on Modernizing Infrastructure Permitting”) is designed to reduce the time needed to permit major projects by: (1) streamlining the permitting process at all levels of government; (2) reducing uncertainty in the application process; and (3) enabling hiring of more Federal agency staff.  The Plan is a result of the 2013 Presidential Memorandum directing the Steering Committee to develop an implementation plan for permitting reforms.

On May 20, 2014, FERC denied proposed changes to the tariff governing the forthcoming ISO New England Inc. (“ISO-NE”) Regulation Market. ISO-NE and the New England Power Pool (“NEPOOL”) Participants Committee (jointly “New England Parties”) are in the final stages of crafting the design for the Regulation Market and anticipated the market being ready to implement as early as May 21, 2014, several months prior to its FERC approved start date of October 2014.

On May 9, 2014, FERC conditionally approved PJM Interconnection, L.L.C.’s (“PJM”) proposed tariff revisions to enable sharing of operational data with natural gas pipelines and local distribution companies (“LDCs”).  The tariff revisions are in accordance with FERC’s Order No. 787 regarding information sharing and allow PJM to share non-public information with pipelines for purposes of operational planning or reliability.

On Thursday, May 15, 2014, FERC issued a Notice of Proposed Rulemaking titled “Open Access and Priority Rights on Interconnection Customer’s Interconnection Facilities” (the “NOPR”).  The NOPR proposes to amend certain of FERC’s regulations as they relate to public utilities that are subject to such regulations solely due to owning, controlling or operating generator tie lines, now referred to by FERC as Interconnection Customer’s Interconnection Facilities or “ICIFs.” 

On April 29, 2014, the United States Supreme Court (“Supreme Court”) reversed and remanded the D.C. Circuit’s 2012 decision that vacated the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution Rule (“CSAPR”).  The decision was 6-2 with Justices Antonin Scalia and Clarence Thomas dissenting.  Justice Samuel Alito recused himself from this case and therefore did not participate in the decision.

On May 2, 2014, FERC granted the Illinois Municipal Electric Agency (“IMEA”) a waiver from certain PJM Interconnection, L.L.C. (“PJM”) tariff requirements so it could utilize PJM’s Fixed Resource Requirement (“FRR”) Alternative for load delivery.  As a result, IMEA can self-supply its Naperville, Illinois load with generation located outside of the Commonwealth Edison (“ComEd”) Locational Deliverability Area (“LDA”) starting on June 1, 2017.