On October 3, 2011, FERC issued an order on remand from the U.S. Court of Appeals for the 9th Circuit (“9th Circuit”) concerning bilateral wholesale energy contracts that were entered into in the Pacific Northwest spot market between December 25, 2000 and June 20, 2001 (“October 3rd Order”).

On September 30, 2011, FERC conditionally approved the proposed merger between Duke Energy Corporation (“Duke”) and Progress Energy, Inc. (“Progress”) (together, “Applicants”).  FERC “conditionally approved” the proposed merger, imposing conditions on the Applicants related to horizontal market power.

On September 27, 2011, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) denied a tariff waiver request by the Midwest Independent Transmission System Operator, Inc. (“MISO”) concerning planning and cost allocation of network upgrades and a transition period for integrating Entergy Corporation and its operating companies (together “Entergy”).

On September 20, 2011, the Southwest Power Pool, Inc. (“SPP”), wrote to Administrator Lisa Jackson at the Environmental Protection Agency (“EPA”) in its capacity as a FERC approved Regional Transmission Organization (“RTO”) and Regional Entity, requesting a delay of the Cross-State Air Pollution Rule (“CSAPR”).

The House of Representatives on Friday passed H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation Act (“TRAIN Act”).  The Act establishes an interagency federal panel to assess the cumulative impact of various EPA regulations and requires that the panel issue its report by next August.  The bill prevents EPA from proceeding with its recently promulgated Cross-State Air Pollution Rule (“CSAPR”) and finalizing its proposed Mercury and Air Toxics Standards (“MATS”) rule.

Last week saw continued appeals filed of EPA’s Cross-State Air Pollution Rule (“CSAPR”), as well as petitions to EPA to reconsider the rule.  The deadline for appeals is October 7, 2011.  Currently, the following parties have filed appeals in the United States Court of Appeals for the D.C. Circuit:  EME Homer City Generation, L.P., Luminant Generation Company, LLC,  GenOn Energy, Inc., State of Kansas, State of Texas, States of Nebraska, Alabama, Florida, Oklahoma, South Carolina, and Texas.  As of this writing, EME Homer City, Luminant and GenOn have asked the Court to stay the rule.  Other appeals and other motions for stays are expected.

On September 20, 2011, Brian Harrison, and W.G. “Bill” Stover, Jr., asserted through counsel their intention to invoke their Fifth Amendment rights under the United States Constitution at a September 23, 2011 hearing before the House Energy and Commerce Committee, Subcommittee on Oversight and Investigations.  Harrison is currently Chief Executive Officer of Solyndra, Inc. (“Solyndra”) and Stover is Senior Vice President and Chief Financial Officer. 

On August 25, 2011, the Department of Transportation, Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued an advanced notice of proposed rulemaking (“ANPR”) related to its safety program for natural gas transmission pipelines.  The ANPR asks for comment on various questions concerning whether pipeline integrity management (“IM”) requirements and other regulatory requirements relating to system integrity should be enhanced.  Written comments are due by December 2, 2011, though parties have already requested additional time to submit comments.

On September 19, 2011, Senator Lisa Murkowski (R-AK) wrote a letter to Federal Regulatory Commission (“FERC” or the “Commission”) Chairman Jon Wellinghoff requesting that he clarify the Commission’s plans to address threats to the nation’s bulk power system as a result of the pending Environmental Protection Agency (“EPA”) regulations.  Senator Murkowski’s September 19th letter builds upon the issues identified in her May 17, 2011 letter, and addresses the August 1, 2011 response of Chairman Wellinghoff.