On November 5, 2015, FERC issued an order accepting four non-conforming and negotiated rate agreements, subject to conditions, between Columbia Gas Transmission, LLC (“Columbia”) and New Jersey Natural Gas Company (“NJNG”), South Jersey Gas Company (“SJ Gas”), and South Jersey Resources Group (“SJ Resources”).  In the order, FERC found that two provisions in the agreements were permissible material deviations from Columbia’s pro forma agreement either because they had been offered to all anchor shippers or because they did not provide certain shippers with a different quality of service or adversely affect other shippers.  However, FERC held two material deviations to be impermissible because they conferred “valuable rights” and were not offered to other anchor shippers.

On October 14, 2015, FERC issued an order (“October 14 Order”) denying rehearing and stay of its December 18, 2014 order (“December 18 Order”) authorizing Columbia Gas Transmission, LLC (“Columbia”) to construct and operate its East Side Expansion Project and abandon facilities that will be replaced as part of the project.  In the October 14 Order, FERC found that it had fully addressed environmental issues raised by the Clean Air Council and the Allegheny Defense Project (“Allegheny”) in its environmental assessment (“EA”) and the December 18 Order.

On October 23, 2015, FERC issued an order denying a complaint brought by Merricourt Power Partners, LLC (“Merricourt”) – which has been developing a 150 MW wind farm in North Dakota – against the Midcontinent Independent System Operator, Inc. (“MISO”) as premature. In the complaint, Merricourt sought an advanced determination that MISO would not terminate its Generator Interconnection Agreement (“GIA”) even though it would not reach commercial operation within the three year period permitted under the GIA.

On October 15, 2015, FERC issued an order to Algonquin Gas Transmission, LLC rejecting claims that FERC had failed to make specific factual findings to support its conclusion that the existing absence of reservation charge crediting provisions in Algonquin’s tariff was unjust and unreasonable, and rejecting the claim that FERC had improperly shifted the burden of proof to Algonquin in this Natural Gas Act (“NGA”) Section 5 proceeding.  Consequently, FERC ordered Algonquin to file tariff provisions conforming to FERC’s reservation charge crediting policy.  FERC also ordered Algonquin to remove from its tariff’s definition of force majeure a reference to outages caused by binding governmental orders, and to remove a reference to “curtailing” service for routine maintenance.

On October 15, 2015, FERC issued Opinion No. 538 denying ANR Storage Company’s (“ANRS”) application for market-based rates (“MBR”) for natural gas storage service.  FERC noted that the matter was the first fully-litigated proceeding where a gas storage provider has sought MBR, thus giving FERC the opportunity to announce its policies and procedures for MBR applications from gas storage providers.  In the order, FERC held that the analysis of whether a gas storage provider can exercise market power includes the three steps from FERC’s 1996 Policy Statement for natural gas pipelines: (1) define the relevant markets, (2) measure a firm’s market share and market concentration, and (3) evaluate other relevant factors.

On October 15, 2015, the Commission granted a June 30, 2015 petition for declaratory order filed by Bloom Energy Corporation (“Bloom”)—a maker of fuel cells—seeking confirmation that its current and future subsidiaries engaged in generating and selling electricity at negotiated rates to non-captive customers continue to be exempt from certain Commission regulations under the Public Utility Holding Company Act of 2005 (“PUHCA 2005”).

On October 15, 2015, FERC denied Champion Energy Marketing LLC’s (“CEM”) request for a $3.1 million refund of balancing operating reserve (“BOR”) costs assessed by PJM Interconnection, LLC and PJM Settlement, Inc. (collectively “PJM”) related to the polar vortex of January 2014.  In the order denying CEM’s request, FERC held that “PJM’s actions that caused real-time BOR costs in January 2014 benefited all real-time load, including [CEM], by ensuring the continued operation and reliability of the system.”