On October 28, 2011, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit) vacated and remanded the Federal Aviation Administration’s (“FAA”) “No Hazard” determinations for the Cape Wind Associates’ proposed wind farm off of the Nantucket Sound (“Cape Wind project”).  The DC Circuit ruling is another major setback to the Cape Wind project that had its loan program put on hold earlier this year by the Department of Energy (see May 23, 2011 edition of the WER).

On October 24, 2011, the United States Court of Appeals for the Fifth Circuit (“5th Circuit” or the “court”) issued a decision granting the Texas Pipeline Association and the Railroad Commission’s (“Petitioners”) petition for review and vacating FERC’s Order Nos. 720 and 720-A.  In its order, the 5th Circuit held that Order Nos. 720 and 720-A exceeded the scope of FERC’ authority under the Natural Gas Act (“NGA”) of 1938.

On October 20, 2011, FERC approved a new two-part compensation method for frequency regulation in wholesale power markets that would provide higher compensation for faster ramping technologies.  The Commission found that the old form of regulation service payment from regional transmission organizations (“RTOs”) and independent system operators (“ISOs”) were unjust, unreasonable, and unduly discriminatory because it failed to acknowledge the speed of different ramping resources, and in some cases this led to inefficient economic dispatch.

On October 24, 2011, the Environmental Protection Agency (“EPA”) filed with the U.S. District Court for the District of Columbia for a 30-day extension to complete the final emissions standards for the Maximum Achievable Control Technology (“MACT”) rule. Currently the EPA is operating under a 2009 consent decree with a November 16, 2011 deadline to issue a final rulemaking on standards for hazardous air pollutants from EGUs (see October 17, 2011 edition of the WER).

On October 20, 2011, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) denied the bulk of the rehearing requests pertaining to the Midwest Independent Transmission System Operator, Inc.’s (“MISO”) cost allocation methodology for new transmission multi value projects (“MVP”), and the Commission denied all rehearing requests on the Southwest Power Pool, Inc.’s (“SPP”) Highway/Byway cost allocation plan.

On October 16, 2011, Kinder Morgan, Inc. (“Kinder Morgan”) and El Paso Corporation (“El Paso”) announced that Kinder Morgan will be buying El Paso for approximately $38 billion (including outstand debt), creating the largest natural gas pipeline and storage company in the country.

On October 20, 2011, the Environmental Protection Agency (“EPA”) announced a schedule to develop standards for wastewater discharges that are produced during natural gas extraction from underground coalbed and shale formations.  EPA will begin to develop a proposed set of national standards while working with stakeholders.  EPA’s announcement is part of its “Effluent Guidelines Program” which sets national standards for industrial wastewater discharges using best available technologies which are economically achievable.

On October 18, 2011, SolarWorld Industries America Inc. (“SolarWorld”) filed a petition with the International Trade Commission (“ITC”) and the Department of Commerce (“Commerce”) alleging that crystalline silicon solar cells and panels imported from China are being sold at an unfair value in the U.S.  This practice is referred to as “dumping.”  The petition also alleges that imports from China are benefitting from unlawful government subsidies.