On October 20, 2009, the General Counsel for the Federal Energy Regulatory Commission (“FERC” or the “Commission”) submitted comments to the Commodity Futures Trading Commission (“CFTC”) stating that FERC has exclusive jurisdiction over the transmission and sale of electricity in interstate commerce or with regulation of wholesale energy markets. 

On October 22, 2009, the Public Utility Commission of Texas (“PUCT” or “Texas Commission”) asked the Federal Energy Regulatory Commission (“FERC” or the “Commission”) to dismiss an enforcement petition from six wind power developers, stating that the developers mischaracterized the PUCT’s decision not to allow the developers to sell output from their qualifying facilities (“QF”) at avoided cost rates. 

On October 15, 2009, the Federal Energy Regulatory Commission (“FERC” or “the Commission”) issued a Notice of Proposed Rulemaking to revise the criteria and procedures for existing or proposed small power production or cogeneration facilities seeking Qualifying Facility (“QF”) status.  The Commission has also proposed to clarify that eligible solar, wind, waste or geothermal facilities that are QFs will be exempt from certain provisions of the Federal Power Act (“FPA”) and Public Utility Holding Company Act of 2005 (“PUHCA 2005”), regardless of size.

On October 15, 2009, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) denied New York Regional Interconnect, Inc.’s (“NYRI”) request for rehearing of FERC’s Order on Rehearing, which affirmed its acceptance of the New York Independent System Operator’s (“NYISO”) cost allocation and recovery requirements for economic upgrades to the transmission system.  The Commission’s decision may render NYRI’s proposed $2 billion transmission project infeasible.

On October 15, 2009, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) conditionally accepted the 2010 business plan and budget for the North American Electric Reliability Organization (“NERC”), the regional reliability entities and the Western Interconnection Regional Advisory Board.  In its order, FERC expressed considerable concern about the staffing levels at NERC and whether they are sufficient for the organization to carry out its mission.

On October 15, 2009, the United States District Court for the Northern District of California (the “Court”) dismissed a lawsuit brought by the Kivalina Alaska Native Village and others against a large number of energy companies, continuing the saga of whether energy companies can be sued under tort law for emitting greenhouse gases (“GHGs”).