Troutman Pepper Locke

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On February 21, 2013, FERC issued a final rule incorporating updated business practice standards of the North American Energy Standards Board (“NAESB”) regarding the measurement and verification of demand response and energy efficiency.  The final rule revises FERC’s regulations (18 C.F.R. § 38.2) by referencing NAESB’s Phase II Demand Response Measurement and Verification, and its Wholesale Energy Efficiency Measurement and Verification standards.  These standards only apply to wholesale markets administered by regional transmission organizations (“RTOs”) and independent system operators (“ISOs”).

On February 12, 2013, President Barack Obama issued an Executive Order (“EO”) and an accompanying Presidential Policy Directive, PPD-21 (“PPD”) in an effort to improve cybersecurity for critical infrastructure.  Specifically, the EO requires improved cybersecurity information sharing between the federal government and the owners and operators of critical infrastructure – certain vital systems and assets to the U.S. – and the development by the federal government of standards to reduce cyber risks to critical infrastructure.

On Tuesday, February 12, 2013, the California Independent System Operator Corporation (“CAISO”) and PacifiCorp executed a Memorandum of Understanding (“MOU”) committing to jointly work toward the creation of a real-time energy imbalance market (“EIM”).  The parties identified several potential benefits from an EIM: participating in the EIM would allow PacifiCorp to quickly and accurately balance resources, efficiently meeting the needs of its transmission customers, while allowing CAISO to utilize its existing EIM system and processes to gain access to a wider array of resources.  Initially the EIM would be expanded only to include PacifiCorp, but both CAISO and PacifiCorp envision the EIM potentially including additional entities. 

On January 31, 2013, FERC addressed PJM Interconnection L.L.C.’s (“PJM”) proposed cost allocation methods for transmission system expansion and enhancements approved during development of Regional Transmission Expansion Plan. FERC deferred a decision on PJM’s proposed cost allocation methods until the Commission conducts a “comprehensive evaluation” of PJM’s related Order No. 1000 compliance proposal. Accordingly, FERC will address the merits of the cost allocation filing in the future order on PJM’s Order No. 1000 compliance.

On Thursday, January 31, 2013, FERC approved a contested settlement agreement regarding PJM Interconnection, L.L.C.’s (“PJM”) Cost of New Entry (“CONE”) values that are used in PJM’s Reliability Price Model (“RPM”).  Despite being contested by the Independent Market Monitor (“IMM”) and the Maryland Public Service Commission (“Maryland PSC”), FERC approved the settlement agreement, finding that “as a package, it presents an overall just and reasonable outcome for this proceeding.”

On January 29, 2013, FERC approved Southwest Power Pool, Inc.’s (“SPP”) proposal to modify the SPP through-and-out rate zonal rate to a region-wide rate equal to the average rate of all SPP zones.  Under its current methodology, SPP’s rate for point-to-point through-and-out transmission service is calculated using a combination of its Schedule 7 point-to-point rates and Schedule 11 zonal and regional rates.  The new methodology will remove the zonal component when calculating through-and-out transmission service within SPP and implement a single regional average rate for through-and-out service.

On February 8, 2013, Entergy New Orleans, Inc. (“Entergy”) issued a press release announcing that it had discovered the cause of the power outage during the Super Bowl – an electrical relay device.  Entergy explained in its press release that the relay is a device designed to “protect equipment in the event of a cable failure between the switch gear and the stadium.”

On Friday, February 1, 2013, FERC denied a complaint brought by Tri-State Generation and Transmission Association, Inc. (“Tri-State”) against the Western Electricity Coordinating Council (“WECC”) and the North American Electric Reliability Corporation (“NERC”), alleging a conflict between the curtailment provisions of the pro forma Open Access Transmission Tariff (“OATT”) and the terms of a WECC Regional Reliability Standard (“IRO-006-WECC-1”).  FERC found that Tri-State had not demonstrated such a conflict, but denied the complaint without prejudice to Tri-State submitting a new or revised complaint alleging that an entity with a Commission-approved OATT has violated that OATT.

On January 22, 2013, the United States Court of Appeals for the Fifth Circuit (“5th Circuit”) held that natural gas clearinghouse Dynegy Marketing and Trade (“Dynegy”) had no contractual duty to refinery plants Ergon Refining and Ergon-West Virginia (“Ergon WV”) to attempt to secure replacement gas, when Dynegy’s upstream supplies were curtailed during Hurricanes Katrina and Rita.  The 5th Circuit case focused on the meaning of two different force majeure clauses in two different agreements that Dynegy had with Ergon Refining and Ergon WV.