FERC Practice

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On March 24, 2022, FERC issued an order granting a motion to extend the deadline for submitting the cost justification filings required for spot market sales in the Western Electricity Coordinating Council (“WECC”) region that exceed FERC’s $1,000/MWh energy price cap.  Sellers will now have 30 days after the end of the month in which any such sales occurred rather than seven days.

On March 24, 2022, FERC denied a petition filed by Irradiant Partners, LP (“Irradiant” or “Petitioner”) seeking waiver of the Commission’s Qualifying Facility (“QF”) filing requirement for its acquisition and recertification of 185 QFs. The Commission held that the recertification requirement—even at this scale—was not unduly burdensome, citing mitigating factors and emphasizing the particular importance of having up-to-date ownership information to assist FERC in monitoring for discrimination.

On March 24, 2022, FERC changed course and designated the two policy statements it issued last month regarding the certification of interstate natural gas pipelines (“Updated Policy Statement”) and consideration of greenhouse gas (“GHG”) emissions in natural gas project reviews (“Interim GHG Policy Statement”) as draft policy statements. The two draft policy statements will not apply to pending project applications or applications filed before FERC finalizes the policy statements. FERC also requested initial comments on the draft policy statements by April 25, 2022.

On February 18, 2022, FERC issued two new, significant policies governing how FERC will review proposals for new natural gas pipeline projects (see February 18, 2022, Troutman Pepper Insight). Headlining these policies is FERC’s new interim greenhouse gas (“GHG”) policy statement (“Interim GHG Policy Statement”), pursuant to which FERC will presume any gas project with 100,000 metric tons per year of carbon dioxide equivalents (“CO2e”) emissions to have a significant impact on climate change, and thus any such project will trigger the preparation of an Environmental Impact Statement (“EIS”). Notwithstanding the interim nature of FERC’s new Interim GHG Policy Statement – where FERC is accepting comments by April 4, 2022 – FERC clarified that it will apply both policies to all pending and new project applications, effective immediately. Both commissioners James Danly and Mark Christie issued lengthy dissents to both policy statements.

On January 25, 2022, FERC announced that FERC staff will hold a technical conference on Tuesday, April 26, 2022, regarding whether the Commission should require additional financial assurance mechanisms in the licenses and other authorizations that FERC issues for hydroelectric projects, to ensure that licensees have the capability to carry out license requirements and, particularly, to maintain their projects in safe condition.

On December 28, 2021, the Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated and remanded a series of FERC orders that allowed for the formula rate pass-through of “indirect” public relations and advocacy expenditures incurred by Potomac-Appalachian Transmission Highline, LLC (“PATH”) related to its pursuit of certificates of public convenience and necessity to build a proposed electric transmission line (“December 28 Opinion”). The D.C. Circuit held that PATH had improperly booked the expenditures to incorrect accounts under FERC’s Uniform System of Accounts (“USofA”), and that Account 426.4–Expenditures for Certain Civic, Political and Related Activities, should have been used instead because it contemplated the inclusion of indirect, as well as direct, public relations and advocacy expenses.

On January 20, 2022, FERC granted Adelphia Gateway, LLC’s (“Adelphia”) request for an 18-month extension of time, until June 20, 2023, to construct and place into service the proposed Adelphia Gateway Project. The order also announces FERC’s new policy on interventions in extension of time proceedings for pipeline projects. The new policy allows interventions in extension of time proceedings regardless of intervenor status in the underlying certificate docket, but untimely motions to intervene in the extension of time proceedings will still be reviewed under the FERC’s criteria for late-filed interventions. Commissioners James Danly and Mark C. Christie issued separate partial dissents arguing against the change in policy for interventions in extension of time proceedings.

On December 30, 2021, FERC accepted the Midcontinent Independent System Operator, Inc.’s (“MISO”) revisions to its Generator Interconnection Procedures (“GIP”), which MISO proposed to, among other things: (1) classify fuel type change requests made during the three-phase Definitive Planning Phase (“DPP”) of MISO’s generator interconnection study process as a material modification, and (2) allow interconnection customers to request surplus interconnection service earlier in the interconnection study process. As FERC found, MISO’s proposed changes represented a “reasonable compromise” to allow interconnection customers to request an earlier review of fuel change request through the surplus process, while minimizing disruptions to the formal DPP process posed by fuel type changes.

On December 16, 2021, the Commission issued its final rule on transmission line ratings that reforms both the pro forma Open Access Transmission Tariff (“OATT”) and the Commission’s corresponding regulations in an effort to improve the accuracy and transparency of transmission line ratings. The Commission stated that this rule will more efficiently utilize the transmission grid and help lower costs for consumers.