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On Friday, February 1, 2013, FERC denied a complaint brought by Tri-State Generation and Transmission Association, Inc. (“Tri-State”) against the Western Electricity Coordinating Council (“WECC”) and the North American Electric Reliability Corporation (“NERC”), alleging a conflict between the curtailment provisions of the pro forma Open Access Transmission Tariff (“OATT”) and the terms of a WECC Regional Reliability Standard (“IRO-006-WECC-1”).  FERC found that Tri-State had not demonstrated such a conflict, but denied the complaint without prejudice to Tri-State submitting a new or revised complaint alleging that an entity with a Commission-approved OATT has violated that OATT.

On January 22, 2013, the United States Court of Appeals for the Fifth Circuit (“5th Circuit”) held that natural gas clearinghouse Dynegy Marketing and Trade (“Dynegy”) had no contractual duty to refinery plants Ergon Refining and Ergon-West Virginia (“Ergon WV”) to attempt to secure replacement gas, when Dynegy’s upstream supplies were curtailed during Hurricanes Katrina and Rita.  The 5th Circuit case focused on the meaning of two different force majeure clauses in two different agreements that Dynegy had with Ergon Refining and Ergon WV.

On January 29, 2013, FERC approved the California Independent System Operator Corporation’s (“CAISO”) tariff revisions that permit the CAISO to share confidential or commercially sensitive information with the Commodity Futures Trading Commission (“CFTC”) without notifying the affected market participant.   The change was intended to satisfy a requirement for exempting independent system operators (“ISOs”) and regional transmission operators (“RTOs”) from reporting “swap” transactions to the CFTC.

On January 17, 2013, FERC modified its policy regarding what a generation developer as owner of a transmission line must show before reserving capacity on that line for an affiliated generation developer.  Specifically, FERC will no longer require that a generation-developing affiliate of the line owner take an ownership interest in the line as a condition of obtaining priority access rights to the line’s capacity.   

On January 22, 2013, the Commission issued an Order Approving a Stipulation and Consent Agreement between the Office of Enforcement (“Enforcement”) and DB Energy Trading LLC (“Deutsche Bank”).  Enforcement concluded that Deutsche Bank violated the Commission’s Anti-Manipulation Rule at 18 CFR § 1c.2 and violated the Commission’s accuracy requirements at 18 CFR § 35.41 by: (1) trading in physical exports with the intent to benefit a second product, a Congestion Revenue Right (“CRR”) position; and (2) falsely designating physical trading as Wheeling-Through transactions, when these transactions did not meet the required criteria.

On January 24, 2013, the United States Court of Appeals for the D.C. Circuit refused to rehear a decision of a three-judge panel of the court that overturned EPA’s Cross-State Air Pollution Rule (“CSAPR”).  CSAPR addressed the interstate transport of pollutants emitted by electric generating units (“EGUs”) located in the eastern two-thirds of the country.  The panel decision in the EME Homer City v. EPA case, issued on August 21, 2012, found that EPA had misinterpreted underlying statutory requirements.

On Wednesday, January 23, 2013, FERC conditionally accepted ISO New England Inc.’s (“ISO-NE”) proposed revisions to its Information Policy, which allows ISO-NE to share confidential, generator-specific data with certain interstate natural gas pipeline operators.  Notably, FERC ordered that the Information Policy is only effective from January 24, 2013 through April 30, 2013. 

On January 23, 2013, the U.S. Government Accountability Office (“GAO”) released a report concluding that the Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) should implement various recommendations that the GAO believes will help mitigate the consequences of pipeline failures.  The recommendations include: (1) improving incident response data in order to consider implementing a performance-based approach for incident response times; and (2) sharing guidance and information to help operators decide whether to install automated valves.

On Thursday, January 17, 2013, FERC issued its Final Policy Statement, Allocation of Capacity on New Merchant Transmission Projects and New Cost-Based, Participant-Funded Transmission Projects; Priority Rights to New Participant-Funded Transmission (“Final Policy Statement”). FERC stated that the Final Policy Statement clarifies and refines its existing four-factor analysis used to evaluate requests for negotiated rate authority for transmission service.

On January 17, 2013, FERC issued a Notice of Proposed Rulemaking (“NOPR”) that would revise the pro forma Small Generator Interconnection Procedures (“SGIP”) and Small Generator Interconnection Agreement (“SGIA”). The proposed revisions aim to reduce the time and cost of interconnection requests from small generators, promote more efficient interconnection, and eliminate barriers for the development of renewable energy. FERC also added in the NOPR that the proposed revisions help address various market changes, including “the growth of small generator interconnection requests and the growth in solar photovoltaic (PV) installations, driven in part by state renewable energy goals and policies.”