On April 22, 2020, FERC accepted tariff revisions from Southwest Power Pool, Inc. (“SPP”) to comply with a October 17, 2019 order accepting in part SPP’s Order No. 841 compliance proposal (the “October Order”). FERC also directed SPP to submit a further compliance filing to specifically exempt run-of-the-river hydroelectric, wind, and solar resources from the continuous minimum run-time requirement under SPP’s Resource Adequacy tariff provisions and Planning Criteria.
Continue Reading FERC Accepts SPP Resource Adequacy Compliance Filing, Subject to Further Compliance

On March 10, 2020, FERC accepted and suspended Midcontinent Independent System Operator, Inc.’s (“MISO”) proposal to allow for the selection of a storage facility as a transmission-only asset (“SATOA”) in the MISO Transmission Expansion Plan (“MTEP”). FERC found that MISO failed to demonstrate that the proposal was just and reasonable and not unduly discriminatory, and directed staff to convene a technical conference to explore issues including:

  1. Evaluation and selection criteria for a SATOA in the MTEP;
  2. Permitted market activities for SATOAs and potential wholesale market impacts;
  3. How MISO’s current formula rate structure accommodates cost recovery for SATOAs;
  4. A SATOA’s potential impact on MISO’s generator interconnection queue; and
  5. Operating guidelines that will apply to a SATOA.


Continue Reading FERC Orders Technical Conference on MISO’s Proposal to Include Storage in its Transmission Planning Process

On February 27, 2020, FERC granted Southwest Power Pool, Inc.’s (“SPP”) request to further delay implementation of reforms designed to facilitate energy storage resource (“ESR”) participation in SPP’s markets. SPP requested the deferral in December 2019, explaining that it would not be able to implement its ESR participation model as scheduled due to ongoing delays in the development of a new market and transmission settlement system and software changes associated with FERC’s Order No. 841 reforms. FERC accepted SPP’s deferral request and ordered a new, August 5, 2021 effective date for SPP’s underlying Order No. 841 tariff changes. Commissioner Bernard McNamee issued a separate opinion concurring with FERC’s order.
Continue Reading FERC Permits SPP to Delay Implementing Storage Resource Participation Rules Until August 2021

On March 5, 2020, the United States Senate approved a motion to proceed on the American Energy Innovation Act (“AEIA”), S. 2657, after a cloture vote was called on the motion by Senate Majority Leader Mitch McConnell (R-Ky.) in order to move the bill to the Senate floor. However, on March 9, 2020, at least two measures to limit debate on the bill itself were rejected—opening the door for numerous floor amendments, including legislative language to limit greenhouse gas emissions that is projected to be offered by Senate Democrats.

The AEIA is a compendium of energy-related statutory provisions which was released in an omnibus, bipartisan legislative package on February 27, 2020 by Energy and Natural Resources Committee Chair Senator Lisa Murkowski (R-Alaska) and Ranking Member Senator Joe Manchin (D-W. Va.). Senators Murkowski and Manchin offered a substitute amendment featuring the full text of the AEIA (Amendment 1407) after the motion to proceed was voted-out affirmatively, and they are acting as floor managers for the bill.

Among other things, the bill focuses on advancements and development of energy storage and hydropower resources. In particular, as described in greater detail below, the bill directs FERC to initiate a rulemaking on cost recovery for energy storage assets and extends authorization for certain incentives to develop generation at non-powered or already-powered dams. The Committee held approximately 12 months of hearings on many of the proposed legislation’s components. If enacted, the bill would constitute the first major piece of national energy legislation since the Energy Policy Act of 2005, after a twelve-year hiatus in significant congressional activity.
Continue Reading Bipartisan American Energy Innovation Act Being Considered on Floor of U.S. Senate

On February 21, 2020, FERC issued an order accepting ISO New England Inc.’s (“ISO-NE”) November 5, 2019 informational filing about the parameters of its fourteenth Forward Capacity Auction (“FCA 14”) for the 2023-24 Capacity Commitment Period (“Informational Filing”).  In so doing, FERC rejected arguments from ISO-NE’s External Market Monitor and others that ISO-NE over-mitigated the bids of various energy storage resources by relying on improper assumptions and historical data. FERC’s order sparked a dissent from Commissioner Richard Glick.

Continue Reading FERC Accepts ISO-NE’s Informational Filing Regarding FCA 14

On February 5, 2020, FERC denied a request from demand-side energy management company Enerwise Global Technologies, Inc. d/b/a CPower (“CPower”) for a one-time waiver of ISO New England, Inc’s (“ISO-NE”) Market Rule 1 in order to permit CPower’s summer-only demand capacity distributed generation resources, for which it elected Renewable Technology Resource (“RTR”) treatment, to participate in ISO-NE’s fourteenth Forward Capacity Auction (“FCA 14”) and the substitution auction. CPower presented two alternative options for waiver, arguing that an unintended interaction between ISO-NE’s RTR and “composite offer” Tariff provisions caused its resources to be excluded from FCA 14 and the substitution auction. FERC denied CPower’s request, even though ISO-NE supported one of the alternatives that CPower presented. Commissioner Richard Glick dissented in part, explaining that he also would have granted one of CPower’s proffered waiver options.
Continue Reading FERC Denies DER Projects’ Request to Participate in ISO-NE Capacity Auction, Sparking Dissent from Commissioner Glick

On February 3, 2020, FERC denied a waiver request filed by Genbright LLC (“Genbright”) seeking a one-time limited waiver of Market Rule 1 in the ISO New England Inc. (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”) to allow fourteen distributed energy resource projects (the “DER Projects”) to participate in the fourteenth ISO-NE Forward Capacity Auction (“FCA 14”).  According to Genbright, the DER Projects did not qualify to participate in this year’s capacity auction because Genbright sought interconnection under a state-administered interconnection process rather than the FERC jurisdictional interconnection options specified in the ISO-NE Tariff, and Genbright argued that the interconnected utility should have alerted Genbright of the FERC-jurisdictional status of its interconnections.  In denying the request, FERC found that granting waiver would inappropriately allow Genbright to avoid ISO-NE’s complex interconnection study process.
Continue Reading FERC Denies DER Projects’ Waiver Request to Participate in ISO-NE’s Capacity Auction

On January 31, 2020, FERC filed its brief in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) responding to consolidated petitions challenging Order No. 841. Order No. 841—the agency’s 2018 rulemaking that established a regulatory framework for Electric Storage Resources (“ESRs”) including grid-level batteries—is widely hailed as the legal lynchpin for the very recent, significant penetration by ESRs into the U.S. electricity resource mix. Accordingly, the D.C. Circuit proceeding has been closely watched by industry stakeholders as the petitioners seek to vacate important parts of the rule facilitating ESR participation in wholesale markets.

Petitions for review were filed in July 2019 by: (1) the National Association of Regulatory Utility Commissioners (“NARUC” or “State Commissions”); and (2) jointly by the American Public Power Association, National Rural Electric Cooperative Association, Edison Electric Institute, and American Municipal Power, Inc. (“Utility Petitioners”). The Transmission Access Policy Study Group also filed a brief as intervenor in support of petitioners.
Continue Reading Battle Lines Drawn in D.C. Circuit Appeals of FERC Order No. 841

On January 23, 2020, FERC accepted New York Independent System Operator, Inc.’s (“NYISO”) proposed revisions to its Tariffs to allow the aggregation of resources, including distributed energy resources (“DERs”), for purposes of participation in the NYISO markets. FERC found that NYISO’s proposed aggregation model (“Aggregation Participation Model”) provided a just and reasonable and not unduly discriminatory framework for such participation.
Continue Reading FERC Accepts NYISO’s Proposed Aggregation Model for DERs and Other Resources