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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.Continue Reading D.C. Circuit Addresses Appeals of Rehearings Denied by Operation of Law

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).Continue Reading D.C. Circuit Finds FERC Failed to Justify Not Preparing a Supplemental EIS for Mountain Valley Pipeline

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.Continue Reading FERC Accepts in Part and Rejects in Part PSCo’s Proposed LGIP & LGIA Revisions

On May 26, 2023, the Commission accepted Southwest Power Pool, Inc.’s (“SPP”) proposed revisions to its Tariff to establish the “framework under which an electric storage resource may be considered a transmission asset.” Continue Reading FERC Approves SPP Proposal for Energy Storage to Be Considered Transmission-Only Assets

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.Continue Reading FERC Requires Disclosure of Privileged Material Regarding JP Morgan’s Relationship with Mankato

A group of 17 states, through their Attorneys General (“State AGs”), filed a motion (“Motion”) on May 10, 2023, requesting that the Commission audit and investigate whether BlackRock is acting as an “activist” investor, thereby violating Section 203 of the Federal Power Act (“FPA”) and the Commission’s latest reauthorizations for BlackRock to acquire public utility securities. The Motion comes shortly after Commissioners Danly and Christie issued a joint statement regarding a different investment company, Vanguard Group, Inc. (“Vanguard”), questioning whether Vanguard’s “enormous accumulation” of utility assets may enable it to exercise “profound control” over those utilities.Continue Reading State Attorneys General Argue BlackRock is Violating its FERC Blanket Authorization

On May 16, 2023, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an opinion in Center for Biological Diversity v. Alaska Gasline Development Corporation, affirming FERC’s authorization for Alaska Gasline Development Corporation (“AGDC”) to construct and operate liquified natural gas (“LNG”) facilities in Alaska’s North Slope region (“Project”).Continue Reading D.C. Circuit Upholds FERC’s NEPA Review of Alaskan LNG Project

On May 3, 2023, a divided FERC voted 3-1 to deny a widely-supported complaint by multiple utilities in the Southwest Power Pool (“SPP”) region arguing that the absence of the new 15% generation Planning Reserve Margin (“Reserve Margin”) from the SPP tariff rendered that tariff unjust and unreasonable.  The Reserve Margin dictates exactly how much electric generating capacity load-serving utilities must own or have under contract to serve customers.  The complaining utilities argued that customers in SPP could be harmed by the costs associated with the rapid increase in the Reserve Margin with little corresponding reliability benefit and asked FERC to keep closer tabs on the process.  The utilities’ request for additional FERC oversight was opposed only by SPP itself.  As a result of the decision, SPP is free to change the Reserve Margin without any oversight by FERC or approval by a single state commission.   FERC further held that a complaint alleging that a key rate is missing from a tariff in violation of section 205 of the Federal Power Act and the Commission’s Rule of Reason fails to state a claim upon which relief could be granted. Continue Reading Divided FERC Announces Hands-Off Approach to Capacity Issues in SPP, Raises Questions About Tariff Detail Complaints

On May 4, 2023, the Senate Energy and Natural Resources Committee hosted all four FERC Commissioners for an oversight hearing to focus on reliability in the face of (1) cyber-attacks, (2) coal and natural gas plant retirements, (3) severe weather, and (4) subsidies, climate policies, and market signals that encourage more intermittent resources to come online.Continue Reading FERC Commissioners Answer to Senate Committee on Fleet Transformation and Other Pressing Issues

On April 21, 2023, the President Biden issued an “Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All.” The new Executive Order provides that “each [federal] agency should make achieving environmental justice part of its mission.” To that end, it provides that agencies shall:Continue Reading Biden Issues Executive Order Increasing Agency Requirements on Environmental Justice