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On February 11, 2021, the Federal Energy Regulatory Commission (FERC) announced plans to create a senior position at the Commission to coordinate incorporation of environmental justice (EJ) concerns into the Commission’s decision-making process.  FERC Chairman Richard Glick indicated that the newly created office would be a cross-cutting position and that its eventual occupant would be charged with working with experts across all FERC program offices to ensure that EJ and equity matters are integrated into Commission decisions.  On May 20, Chairman Glick announced the appointment of Montina Cole to serve as Senior Counsel for Environmental Justice and Equity.  The FERC press release describes Cole as a “seasoned executive and attorney” with an active consulting and legal practice, “where she works at the intersection of climate policy, racial equity and resilience.” …
Continue Reading FERC Fills Newly Created EJ Position

Addressing environmental justice (EJ) concerns highlighted during the campaign is an important priority for the Biden Administration.  Within a week of taking the oath of office, President Biden issued a sweeping executive order with a number of EJ initiatives, including creation of a White House Environmental Justice Interagency Council consisting of the heads of each Cabinet-level and independent federal agency.  The order also directed federal agencies to “make achieving environmental justice part of their missions” through development of programs and policies aimed at addressing disproportionately high adverse environmental impacts on disadvantaged communities. …
Continue Reading FERC to Increase Focus on Environmental Justice

On March 18, 2021, FERC issued a Final Rule amending its regulations to establish a one-year period for states, tribes, or other certifying authorities (“Certifying Agencies”) to act on a Clean Water Act (“CWA”) Section 401 water quality certification request for proposed natural gas and liquefied natural gas projects. …
Continue Reading FERC Establishes Water Quality Certification Waiver Period for Natural Gas Projects

On March 5, 2021, FERC issued a Notice of Virtual Listening Sessions and Public Comment Period soliciting input on how it should establish and operate its Office of Public Participation (OPP) pursuant to section 319 of the Federal Power Act (FPA).  Commission staff, led by Commissioner Clements, held the first public listening session on March 17, and additional listening sessions and a Technical Workshop are scheduled for the coming weeks.…
Continue Reading Addressing Environmental Justice: FERC Holds Virtual Listening Sessions and Accepts Public Comments on Development of the Office of Public Participation

FERC is hosting a number of workshops and technical conferences over the next several months. These include the Resource Adequacy technical conference; Listening Tour for the Office of Public Participation; workshop on compliance with Order No. 860; conference on Electrification and the Grid; and a technical conference on the threats climate change poses to the grid.  Read on for more information about each.…
Continue Reading Upcoming FERC Workshops and Technical Conferences

On February 18, 2021, FERC issued two orders terminating the proceedings stemming from the Department of Energy’s (“DOE”) Proposed Rule on Grid Reliability and Resilience (“Proposed Rule”). FERC previously established rulemaking proceedings in Docket No. RM18-1-000 to consider the proposed rule, which was submitted to FERC by the DOE in September 2017 pursuant to the Department of Energy Organization Act section 403 (“DOE Proposed Rulemaking Proceeding”). FERC terminated the DOE Proposed Rulemaking Proceeding on January 8, 2018 (see January 17, 2018 issue of the WER), instead opening an inquiry proceeding in Docket No. AD18-7-000 (“Inquiry Proceeding”) to evaluate the resilience of the bulk power system in the regions operated by regional transmission organizations (“RTOs”) and independent system operators (“ISOs”). On February 18, 2021, FERC: 1) issued an order on rehearing that sustained its decision to terminate the DOE Proposed Rulemaking Proceeding in Docket No. RM18-1-000; and 2) terminated the Inquiry Proceeding in Docket No. AD18-7-000.  Commissioner Neil Chatterjee issued a dissenting opinion in the order terminating the Inquiry Proceeding.…
Continue Reading FERC Sustains Prior Termination of Grid Reliability and Resilience Rulemaking Proceeding; Terminates Grid Resilience Inquiry Proceeding

On January 21, 2021, President Biden named Richard Glick as the new FERC Chairman. Chairman Glick joined FERC as a Commissioner in 2017. He previously served as general counsel to the Democrats on the Senate Energy and Natural Resources Committee and as Vice President of Government Affairs for Iberdrola’s renewable energy, electric and gas utility,…

In 2019, the D.C. Circuit in Hoopa Valley Tribe v. FERC  held that the plain language of Clean Water Act (CWA) Section 401 establishes a bright-line maximum period of one year for States to act on a request for water quality certification and that the Federal Energy Regulatory Commission (Commission) was arbitrary and capricious when it failed to enforce the statutory time-limit.  Since the Hoopa Valley Tribe ruling, the Commission has repeatedly held that a State waives its authority under Section 401 when it has sought to extend the one year review period by requesting or directing the applicant to withdraw and resubmit its application to afford the state reviewing agency more time.  In several recent cases, however, the Commission has found that there may be instances where a withdrawal and resubmission of a water quality certification by the applicant does not result in a State’s waiver of Section 401 certification authority.…
Continue Reading FERC’s Clean Water Action Section 401 Waiver Analysis Continues to Evolve

On August 18, 2020, the Federal Energy Regulatory Commission  (FERC) issued an order clarifying its filing requirements in the event its e-filing system malfunctions.

By way of background, in August 2019, FERC issued Order No. 862, which revised its procedural regulations to require that any documents delivered to the Commission by any means other than the United States Postal Service be sent to an off-site screening facility instead of to Commission headquarters on First Street in Washington D.C.  (See September 17, 2019 edition of the WER).  Order No. 862 was designed to enhance security for the Commission and its staff and was determined by the Commission not to impact the public’s ability to make timely filings, since the off-site screening facility would log, stamp, and record deliveries just as staff would do at the headquarters location.  In the order, FERC continued to strongly encourage use of e-filing.  Order No. 862 was originally slated to become effective 60 days after its publication in the Federal Register, but the effective date was ultimately delayed until July 1, 2020 (see November 19, 2019 and July 2, 2020 editions of the WER).…
Continue Reading FERC Clarifies Policy for Ensuring Timely Filing in the Event of E-Filing Malfunction