Rulemakings

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On January 8, 2018, FERC terminated the Department of Energy’s (“DOE”) Proposed Rule on Grid Reliability and Resilience Pricing (“Proposed Rule”) proceeding, and, instead, initiated a new proceeding whereby FERC plans to collect information on resilience from regional transmission organizations (“RTO”) and independent system operators (“ISO”).  Once that information is collected, FERC will determine whether further action is necessary to address grid resilience.  While FERC’s decision was unanimous, three of FERC’s Commissioners issued separate concurring opinions.  Of note, Commissioner Neil Chatterjee stated that while he would have preferred an order that took an interim step to address the issues raised in the Proposed Rule, he looked forward to addressing those critical issues in the new proceeding established by FERC.

On October 25, 2017, FERC released a final report regarding whether its policies materially burden the development and use of domestic energy resources (“Final Report”).  While FERC concluded that most agency actions are not materially burdensome or are necessary to administer its statutory mandates, FERC recommended certain changes to licensing processes, exemption processes, and determinations on deficient applications for hydropower resources. 

On October 19, 2017, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing to direct the North American Electric Reliability Corporation (“NERC”) to modify the Critical Infrastructure Protection (“CIP”) Reliability Standard, CIP-003-7 (Cyber Security – Security Management Controls), which is intended to mitigate cyber security risks posed by malware from ‘transient electronic devices’ (such as laptops and thumb drives) used at low-impact cyber systems.  FERC stated in the NOPR that, once those modifications have been made, it plans to make the new reliability standard effective approximately 18 months after FERC approval.

On October 2, 2017, FERC issued notice of the September 29, 2017 Notice of Proposed Rulemaking (“NOPR”) from the United States Department of Energy (“DOE”) under section 403 of the Department of Energy Organization Act.  In the NOPR, DOE urges FERC to act quickly to enact rules requiring regional transmission organizations and independent system operators (“RTOs/ISOs”) to provide just and reasonable rates for “fuel-secure” generation units (see October 2, 2017 edition of the WER).  Shortly thereafter, on October 4, FERC staff issued a Request for Information, listing various questions for commenters to address in aiding the Commission to better understand the NOPR’s implications.  Commenting parties have until October 23, 2017 to file initial comments and until November 7, 2017 to file reply comments.  In recent testimony before the Senate’s Committee on Energy and Natural Resources, FERC General Counsel, James Danly, confirmed that FERC intends to review the comments and take final action within 60 days of the NOPR’s publication, as requested by the DOE.

On September 29, 2017, United States Department of Energy (“DOE”) Secretary Rick Perry took the unusual step of proposing a rule for final action by the Federal Energy Regulatory Commission (“FERC”).  Secretary Perry’s initiative, a DOE-issued Notice of Proposed Rulemaking (“NOPR”) under section 403 of the Department of Energy Organization Act (“DOE Act”) (42 U.S.C. § 7173), urges FERC to act extremely quickly to enact rules requiring regional transmission organizations and independent system operators (“RTOs/ISOs”) to provide just and reasonable rates for “fuel-secure” generation units (e.g., coal and nuclear units).  See Grid Resiliency Pricing Rule, Docket No. RM17-3-000, at 4–5 (Sept. 29, 2017) (“DOE NOPR”). 

On September 20, 2017, FERC issued two final rules and a notice of proposed rulemaking (“NOPR”) on reliability standards for the bulk power system. The final rules—Order Nos. 836 and 837—will become effective sixty days after their publication in the Federal Register.  Parties interested in filing comments on matters discussed in the NOPR must do so within sixty days of when that notice is published in the Federal Register.

On March 28, 2017, President Donald Trump signed an Executive Order that, among other things, (1) directed the Council on Environmental Quality (“CEQ”) to rescind its guidance for federal departments and agencies on the consideration of greenhouse gas (“GHG”) emissions in National Environmental Policy Act (“NEPA”) reviews; (2) withdrew documents implementing the Social Cost of Carbon tool for regulatory impact analysis; and (3) directed the Administrator of the Environmental Protection Agency (“EPA”) to review and determine whether to withdraw or revise the Clean Power Plan, which several agencies were in the process of implementing (see January 29, 2016 edition of the WER).

On March 24, 2017, the United States Department of State (“State Department”) issued a presidential permit to TransCanada Keystone Pipeline, L.P. (“TransCanada”) authorizing TransCanada to import crude oil from Canada to the United States as part of TransCanada’s Keystone XL pipeline project. The presidential permit was issued under the authority…

On March 24, 2017, the United States Department of State (“State Department”) issued a presidential permit to TransCanada Keystone Pipeline, L.P. (“TransCanada”) authorizing TransCanada to import crude oil from Canada to the United States as part of TransCanada’s Keystone XL pipeline project. The presidential permit was issued under the authority of Executive Order 13337 and the January 24, 2017 Presidential Memorandum Regarding Construction of the Keystone XL pipeline (see January 30, 2017 edition of the WER).