On September 29, 2015, the Office of the Inspector General (“OIG”) of the Department of Energy issued a special report describing the results of its audit of FERC’s Office of Enforcement (“OE”). Based on its review, the OIG determined that “nothing came to our attention to indicate that OE had not performed enforcement activities in accordance with relevant policies and procedures.”

On October 8, 2015, Mayor Muriel Bowser announced that the District of Columbia (“DC”) government has reached a settlement (“Settlement”) in negotiations related to the proposed merger filed with the Public Service Commission of the District of Columbia (“DCPSC”) by Exelon Corporation (“Exelon”) and Pepco Holdings, Inc. (“Pepco” and together with Exelon, the “Joint Applicants”). While the merger application remains subject to DCPSC approval, the Settlement is a milestone for the Joint Applicants in a regulatory review process that has proven to be contentious in DC.

On October 6, 2015, FERC Commissioner Philip D. Moeller announced his intention to leave the Commission at the end of October.  Commissioner Moeller has been with the Commission since 2006, when he was appointed by former President George W. Bush.  In 2010, Commissioner Moeller was re-appointed by President Obama for a five-year term that expired on June 30, 2015; however, he was permitted to remain at the agency until Congress adjourns, unless a replacement was confirmed and sworn in.  At this time, no one has been nominated to replace Commissioner Moeller.

On September 28, 2015, the North American Electric Reliability Corporation (“NERC”) submitted to FERC its annual analysis on the use of Technical Feasibility Exceptions (“TFEs”).  TFEs are exceptions from strict compliance with NERC Critical Infrastructure Protection (“CIP”) Reliability Standards that Registered Entities may apply for, pursuant to a process established in the NERC Rules of Procedure.

On September 30, 2015, the U.S. District Court for the District of Wyoming (“District Court”) granted motions for preliminary injunction filed by various states, tribes, and industry members (“Petitioners”) seeking to enjoin the Bureau of Land Management (“BLM”) from regulating hydraulic fracturing under its final hydraulic fracturing rule (“Final Rule”).  In granting the preliminary injunction, the District Court held that (1) the petitioners were likely to succeed on the merits because the BLM acted without Congressional authority, the Final Rule was arbitrary and capricious, and the BLM failed to adequately consult with certain Indian tribes; (2) affected states, tribes, and industry members would suffer irreparable harm without the preliminary injunction; and (3) balancing interests between the Petitioners and the BLM and intervening environmental groups favored the Petitioners.

On October 1, 2015 the United States Environmental Protection Agency (“EPA”) adopted a more stringent air quality standard for ground-level ozone emissions that reduces the national standard from 75 parts per billion (“ppb”) to 70 ppb. By promulgating a new ozone standard, EPA says it aims to reduce smog from ground-level emission sources, including power plants, smoke stacks, and automobiles. In conjunction with the new standard, EPA also issued an “Implementation Memo,” which outlines the agency’s plans for addressing various implementation issues under the new standard.

On September 16, 2015, the Commission dismissed a petition filed by the Working group for Investment in Reliable and Economic electric Systems (“WIRES”) in which WIRES requested that the Commission institute a generic proceeding to determine whether the Commission’s discounted cash flow (“DCF”) methodology continues to be the most appropriate method of computing public utility Return on Equity (“ROE”).

On September 21, 2015, FERC Office of Enforcement Staff issued a Notice of Alleged Violations against Total Gas & Power, North America, Inc. (“TGPNA”) and TGPNA’s West Desk traders and supervisors, Therese Nguyen and Aaron Hall.  FERC Staff stated that in a nonpublic investigation, the Office of Enforcement Staff made a preliminary determination that TGPNA and its traders and supervisors violated section 4A of the Natural Gas Act and FERC’s Anti-Manipulation Rule.

On September 22, 2015, President Obama’s Administration announced concurrent actions intended to help achieve certain goals established in the Administration’s 2014 comprehensive plan to modernize infrastructure permitting.  Those actions include an enhanced Federal Infrastructure Permitting Dashboard (“Dashboard”), new guidance establishing metrics for the permitting and review of infrastructure projects, and the first update since 1988 of the Synchronizing Environmental Reviews for Transportation and Other Infrastructure Projects handbook (“Red Book”).

On September 22, 2015, the U.S. Department of Interior’s Fish and Wildlife Service (“FWS”) announced that the sage-grouse would not be listed under the Endangered Species Act (“ESA”) – a particularly significant decision for wind development in the Western United States.