On October 13, 2011, the United States Court of Appeals for the Ninth Circuit (“9th Circuit” or “Court”) issued a decision (Montana Consumer Counsel v. FERC) denying petitions for review of the FERC Order No. 697 and Order No. 697-A, codifying market-based rate policy. 

On October 13 and 14, 2011, the National Mining Association (“NMA”), twenty-five states and Guam, and other public interest groups submitted amicus briefs to the United States District Court for the District of Columbia, in support of Utility Air Regulatory Group’s (“UARG”) motion for a one year extension of the Environmental Protection Agency’s (“EPA”) deadline for promulgating a rule establishing Maximum Achievable Control Technology (“MACT”) standards for electric generating units (“EGUs”), which EPA is calling its Mercury and Air Toxics Standards rule (“MATS”). 

On October 14, 2011, EPA’s proposed “technical adjustments” to the Cross-State Air Pollution Rule (“CSAPR”) was published in the Federal Register starting the 30-day clock for submitting comments.  Specifically, all comments to the proposed rule must be received by EPA on or before November 14, 2011 unless a public hearing is requested in which event comments must be received by November 28, 2011.

On October 12, 2011, EPA issued a notice of data availability (“NODA”) seeking comment on information obtained by EPA in connection with their proposed rule: Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities (“2010 Proposed Rule”).

On October 7, 2011, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) announced that it will hold a Commissioner-led Technical Conference to address the reliability of the Bulk-Power System and emerging issues, including reliability concerns which may arise in complying with Environmental Protection Agency (“EPA”) regulations, along with tools to address these issues.

On October 6, 2011, the EPA proposed what it is referring to as “technical adjustments” to the final Cross-State Air Pollution Rule (“CSAPR”).  According to the EPA, the adjustments are needed to correct errors made in certain unit specific modeling assumptions and to smooth the transition from the Clean Air Interstate Rule (“CAIR”) to CSAPR.  A summary of the proposed adjustments is as follows:

On September 30, 2011, the United States Department of Justice (“DOJ”) announced a settlement with Morgan Stanley concerning its violation of antitrust laws in connection with swap agreements it entered into concerning New York City’s electricity generating capacity market in 2006.

On September 30, 2011, Martha Coakley, Attorney General of the Commonwealth of Massachusetts, and various state officials and commissions from the other New England states (collectively, the “Complainants”) filed a Complaint against Bangor Hydro-Electric Company and the other ISO-New England transmission owners (collectively, “TOs”) and ISO New England Inc  (“ISO-NE”).

On October 5, 2011, the Obama Administration announced that it would “accelerate” permitting and construction of seven proposed electric transmission lines.  These projects will serve as pilot demonstrations of streamlined processes and increased cooperation among federal, state and tribal authorities.