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On November 10, 2010, EPA issued its long-awaited Best Available Control Technology (“BACT”) guidance for the new greenhouse gas (“GHG”) permitting requirements scheduled to take effect on January 2, 2011, less than two months from now.  The information applies to two permitting programs— the “PSD” program, under which new and modified sources having the potential to emit air pollutants above a certain amount must obtain a preconstruction air quality permit, and the Title V program, under which sources having the potential to emit air pollutants above a certain amount must obtain an operating permit.　

On November 5, 2010, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued its remand opinion in Maine Public Utilities Commission v. FERC.  The D.C. Circuit remanded the case back to the Federal Energy Regulatory Commission (“FERC” or the “Commission”) for further consideration of the Commission’s position that, while auction rates may not be contract rates, the Mobile-Sierra doctrine nevertheless applies.

On October 27, 2010, Cedar Creek Wind LLC (“Cedar Creek”) and Milford Wind Corridor Phase I, LLC (“Milford”) filed two separate appeals with FERC to challenge a decision by the North American Electric Reliability Corporation (“NERC”) that would force the wind generators to register as a transmission owner and operator.

On November 3, 2010, California reported that 61.2% of voters in California defeated Proposition 23 (“Prop 23”).  Prop 23 would have suspended California’s Global Warming Solution Act of 2006 (“AB 32”), which requires the state to reduce greenhouse gas emissions 30 percent by 2020, until California’s unemployment rate is 5.5 percent or less for a calendar year. (see October 8, 2010 edition of the WER). 

On November 1, 2010, Exelon Corporation (“Exelon”), American Electric Power (“AEP”), and Electric Transmission American (“ETA”) announced the companies will partner to build a new transmission line dubbed the Reliability Interregional Transmission Extension (“RITE Line”).  The new project will construct 420 miles of extra high-voltage lines from Illinois to the border between Indiana and Ohio. 

On October 28, 2010, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued an order approving a stipulation and consent agreement (the “Agreement”) between the Office of Enforcement (“Enforcement”) at FERC and North America Power Partners (“NAPP”).  Under the Agreement, NAPP will pay a civil penalty of $500,000 and disgorge $2,258,157, plus interest, in unjust profits.  Additionally, NAPP will begin compliance monitoring.

On October 29, 2010, FERC granted Southern California Edison Company (“SoCal Edison”) incentive rate treatment for their Lugo-Pisgah Transmission Project (“Lugo-Pisgah”) and Red Bluff Substation Project (“Red Bluff”) (collectively, the “Projects”).  Though the Commission determined in their October 29, 2010 order (the “Order”) that SoCal Edison did not meet the requirements of Federal Power Act (“FPA”) section 219 and Order No. 679 as projects which would improve reliability or reduce the cost of delivered power by reducing transmission congestion, the Commission exercised its authority under section 205 of the FPA to grant requested rate incentives on policy grounds.

On November 3, 2010, FERC denied Florida Power & Light Company’s (“FPL”) petition to reverse previous orders on FERC’s jurisdiction over interconnection agreements between a utility and a qualifying facility (“QF”).  FERC upheld Commission precedent on QF interconnection agreements as being consistent with the Federal Power Act (“FPA”), the Public Utility Regulatory Policies Act of 1978 (“PURPA”), and the FERC policies. 

On October 26, 2010, the North American Electric Reliability Corporation (“NERC”) released a Special Assessment, “Potential Resource Adequacy Impacts of U.S. Environmental Regulations” (the “Assessment”), which examines the impact of four potential Environmental Protection Agency (“EPA”) rules and proposed rules which could result in generating unit retirements or forced retrofits between 2013 and 2018.