FERC Practice

Subscribe to FERC Practice via RSS

On July 27, 2023, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fourth Circuit’s decision to grant the Wilderness Society’s motions to stay of construction on the Mountain Valley Pipeline (“MVP”) pending that court’s review of the Forest Service’s amended Forest Management Plan. The Supreme Court’s order grants MVP’s emergency application to vacate the Fourth Circuit’s stay orders and permits MVP to resume construction on the pipeline.

On July 3, 2023, FERC affirmed its earlier determination that Bluescape Energy Partners, LLC’s (“Bluescape”) appointment of a non-independent director to Evergy Inc.’s (“Evergy”) Board of Directors overcomes the rebuttable presumption of a lack of control under FERC’s regulations that normally applies when a company owns less than 10 percent of another company’s equity (see October 27, 2022 edition of the WER).  Additionally, FERC clarified that the appointment of a non-independent director is a per se finding of control and found affiliation between Bluescape and Evergy, and therefore between Bluescape and Evergy’s public utility subsidiaries, pursuant to the definition of “affiliate” under FERC’s rules.

On July 13, 2023, FERC on rehearing set aside its prior order that had accepted Southwest Power Pool, Inc.’s (“SPP”) proposal to establish a case-by-case process to allocate, on a regional, postage-stamp basis, all of the costs of a transmission facility with a voltage level between 100 kV and 300 kV (“Byway facility”).  In setting aside its prior approval, FERC found that SPP’s Proposal granted the SPP Board too much discretion in allocating the costs of Byway facilities. Commissioners Mark Christie and James Danly each concurred with separate statements.  FERC’s rejection marked the second time SPP’s proposal failed to obtain Commission approval.

On June 15, 2023, FERC issued Order No. 895, adopting new regulations permitting regional transmission organizations (“RTO”) and independent system operators (“ISO”) to share, amongst each other, credit-related information of their market participants, and requiring RTOs/ISOs to adopt tariff or similar rules for providing credit-related information sharing in order to better assess market participants’ credit risks.

On June 13, 2023, the House of Representatives Subcommittee on Energy, Climate, and Grid Security held a hearing on the “Oversight of FERC: Adhering to a Mission of Affordable and Reliable Energy for America.” The hearing focused on reliability and the transition from fossil fuel generation to renewable resources.

In its May 26, 2023 opinion in Sierra Club v. Federal Energy Regulatory Commission (an article on the rest of the opinion regarding FERC’s environmental review of the Mountain Valley Pipeline can be found here), the United States Court of Appeals for the District of Columbia Circuit addressed challenges to its jurisdiction to hear appeals of Commission rehearing orders when they are denied by operation of law and the Commission subsequently modifies the underlying order after said denial.

On May 26, 2023, the United States Court of Appeals for the District of Columbia Circuit issued an opinion in Sierra Club v. Federal Energy Regulatory Commission largely denying challenges to several FERC orders authorizing the resumption of construction of Mountain Valley Pipeline (“MVP”) but remanded, without vacatur, all but one of the orders on review insofar as FERC failed to adequately explain its decision not to prepare a supplemental Environmental Impact Statement (“EIS”) for MVP. (See related article on the Court’s finding with regard to hearing appeals of FERC’s rehearing orders, here).

On June 2, 2023, FERC accepted in part and rejected in part Public Service Company of Colorado’s (“PSCo”) proposed revisions to its Large Generator Interconnection Procedures (“LGIP”) and Large Generator Interconnection Agreement (“LGIA”). In largely accepting PSCo’s proposed revisions, FERC found that the reforms would either strengthen the ability of PSCo to process generator interconnection requests or provide general improvements to existing processes.

On May 11, 2023, FERC notified Mankato Energy Center, LLC and Mankato Energy Center II, LLC (“Mankato Companies”) that it will release certain privileged information included in the initial brief that Mankato Companies submitted in an ongoing proceeding section 206 of the Federal Power Act (“FPA”) to determine whether Mankato companies and J.P. Morgan Investment Management, Inc. (“J.P. Morgan Investment”) are affiliated for purposes of the FPA.  FERC reasoned that disclosing certain privileged information is necessary to carry out the Commission’s jurisdictional responsibilities in evaluating whether the Mankato Companies’ upstream ownership raises market power concerns.  Commissioner Danly dissented in a separate statement, arguing that FERC could instead release a redacted order.