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On January 25, 2016, the Supreme Court of the United States ruled that FERC had not exceeded its legal authority under the Federal Power Act (“FPA”) in promulgating a rule—Order No. 745—that regulates the compensation paid to demand response resources in organized wholesale markets administered by Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”).

On January 19, 2016, FERC Staff issued a white paper entitled, “Guidance Principles for Clean Power Plan Modeling.” Additionally, on January 27, 2016, NERC issued a special reliability assessment entitled, “Reliability Considerations for Clean Power Plan Development.” Each document is aimed at assisting various industry stakeholders with the implementation of EPA’s Clean Power Plan while maintaining grid reliability.

On January 21, 2016, FERC Commissioner Tony Clark announced at FERC’s Open Meeting that he will not seek another term at the Commission after his current term expires June 30, 2016. Commissioner Clark is serving his first term with the Commission and was appointed by President Obama on June 15, 2012. Prior to joining FERC, Commissioner Clark served as a Commissioner and Chairman of the North Dakota Public Service Commission and as president of the National Association of Regulatory Utility Commissioners.

On January 21, 2016, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing to revise the $1,000/MWh cap on supply offered in day-ahead and real-time markets run by regional transmission organizations (“RTOs”) and independent system operators (“ISOs”). Specifically, FERC proposes to revise the offer cap in RTO/ISO markets to the higher of $1,000/MWh or that resource’s verified cost-based offer.

On January 21, 2016, the Federal Energy Regulatory Commission (“FERC”) concurrently issued an order and a letter order related to a dispute between Southwest Power Pool, Inc. (“SPP”) and Midcontinent Independent System Operator, Inc. (“MISO”) stemming from MISO’s use of the SPP transmission system for real-time energy transfers between MISO Midwest and MISO South. In the order, FERC accepted MISO’s proposed revisions to its Open Access Transmission, Energy and Operating Reserve Markets Tariff (“Tariff”) to remove the “hurdle rate” mechanism (“Hurdle Rate”). In the letter order, FERC approved an offer of settlement (“Settlement Agreement”) whereby MISO will provide SPP compensation related to available system capacity usage and firm point-to-point transmission service between MISO Midwest and MISO South on SPP’s transmission system. Going forward, the Hurdle Rate will be superseded by the terms of the Settlement Agreement.

On January 21, 2016, FERC issued two separate orders largely approving the termination of the Public Utilities Regulatory Policies Act (“PURPA”) mandatory purchase obligation for the Entergy Operating Companies (“Entergy”) and Arkansas Electric Cooperative Corporation (“Arkansas Coop.”). Both orders were issued in response to applications submitted under Section 210(m) of PURPA, which provides utilities with a method for petitioning FERC to terminate the obligation of a utility to purchase a qualifying facility’s (“QF”) power under PURPA.

On January 21, 2016, the Commission approved revisions to seven Critical Infrastructure Protection (“CIP”) Reliability Standards developed and submitted by the North American Electric Reliability Corporation (“NERC”), all of which were previously proposed for approval in a July 16, 2015 FERC Notice of Proposed Rulemaking (“NOPR”). According to the Commission, the revised Reliability Standards are “designed to mitigate cybersecurity risks to bulk electric system facilities, systems, and equipment, which, if destroyed, degraded, or otherwise rendered unavailable as a result of a cybersecurity incident, would affect the reliable operation of the Bulk-Power System.”

On December 31, 2015, FERC issued an order applying the seven-factor test to exclude certain transmission facilities owned by Southern California Edison Company (“SoCal Edison”) from North American Electric Reliability Corporation (“NERC”) regulation. SoCal Edison filed an application under Section 215 of the Federal Power Act (“FPA”) and FERC Order No. 773, seeking a determination from FERC that certain of its 115 kV facilities were “facilities used in the local distribution of electric energy,” and therefore, were exempt from NERC regulation under the plain language contained in Section 215 of the FPA. In its application, SoCal Edison presented seven transmission and substation facility configurations for FERC consideration. Using the seven-factor test set forth in Order No. 888, FERC determined that five of the seven facilities were “facilities used in local distribution” and were exempt.

On January 12, 2016, the Federal Energy Regulatory Commission (“FERC”) issued an order rejecting without prejudice Louisiana Generating LLC’s (“Louisiana Generating”) request to recover costs associated with performing its obligations as a local balancing authority (“LBA”) under the Midcontinent Independent System Operator, Inc’s (“MISO”)  Open Access Transmission, Energy and Operating Reserve Markets Tariff (“Tariff”) Schedule 24 and Schedule 24-A. Going forward, Louisiana Generating may resubmit its request for cost recovery in accordance with FERC’s explicit expectations set forth in the order.

On January 8, 2016, the Commission approved proposed values submitted by ISO New England, Inc. (“ISO-NE”) to develop a demand curve for the tenth Forward Capacity Auction (“FCA 10”), which is scheduled to be held in February, 2016. One of the values—the Installed Capacity Requirement (“ICR”)—for the first time accounted for behind-the-meter solar resources, as a reduction in total load forecast. In its order accepting the proposed demand curve values for FCA 10, the Commission upheld ISO-NE’s inclusion of these distributed solar resources in the ICR.