On October 20, 2022, the Federal Energy Regulatory Commission (“FERC”) issued an Order rejecting a request by the California Public Utilities Commission (“CPUC”) seeking a rehearing of a Justification Order.  FERC’s Order declining rehearing comes after an October 7, 2020 filing where Tri-State Generation and Transmission Association, Inc. (“Tri-State”) filed its justification for spot market sales that exceeded the Western Electricity Coordinating Council (“WECC”) soft price cap of $1,000/MWh during the summer months of 2020.  On May 20, 2022, the Commission issued an order finding that Tri-State had sufficient justification for certain spot market sales above the soft price cap but had not justified amounts charged above the relevant index price.  Ultimately, the Commission rejected the CPUC’s rehearing request.

On October 20, 2022, the Federal Energy Regulatory Commission (the “Commission”) issued an order addressing Oklahoma Gas and Electric Company, GridLiance High Plans LLC, and the Indicated SPP Transmission Owners’ (consisting of Evergy Kansas Central, Inc., Evergy Metro, Inc., Evergy Missouri West, Inc., and ITC Great Plains, LLC) (together, the “Petitioners”) requests for rehearing and alternatively request for clarification of the Commission’s June 2022 Order accepting revisions to Southwest Power Pool, Inc.’s (“SPP”) Open Access Transmission Tariff (“Tariff”) (“Rehearing Order”). The Commission denied the Petitioners’ request for rehearing and sustained its June 2022 Order establishing SPP’s uniform Zonal Planning Criteria.

On October 20, 2022, FERC issued orders in two separate proceedings that clarified how investor company appointments to public utility boards of directors can trigger additional FERC regulatory scrutiny. Specifically, in the first proceeding, FERC determined that such appointments established an “affiliate” relationship under FERC’s rules, while in the second proceeding, FERC determined that the appointments effectuated a “change in control” over the public utility that required prior FERC approval under Section 203 of the Federal Power Act (“FPA”).

On September 30, the U.S. Court of Appeals for the Tenth Circuit issued an opinion in Save the Colorado, et al. v. Spellmon. The case arose from various conservation group challenges to the U.S. Army Corps of Engineers (Corps) and U.S. Fish and Wildlife Service’s (Service) decision to grant the city and county of Denver, acting through its Board of Water Commissioners (Denver Water or municipality), a discharge permit to expand the reservoir of its Gross Reservoir Hydroelectric Project, which is licensed by the Federal Energy Regulatory Commission (FERC or Commission). The central issue revolved around whether the U.S. courts of appeals have exclusive jurisdiction over challenges to non-FERC decisions arising under statutes related to the development of hydropower projects under the Federal Power Act (FPA). The Tenth Circuit ultimately held that petitions against orders by non-FERC agencies do not warrant exclusive jurisdiction in the U.S. courts of appeals.

On September 9, the U.S. Department of Energy (DOE) announced that it would distribute $13.5 million to incentivize hydroelectric generation in the United States. The financial support is part of the Hydroelectric Production Incentive Program, which provides funding for electricity generated and sold from dams and other water infrastructure projects that will add to or expand hydropower generation.

On September 21, Senator Joe Manchin (D-WV), Chairman of the Senate Energy and Natural Resources Committee, released the text of the Energy Independence and Security Act of 2022 (Act). This comprehensive Act was set to be included in the upcoming Continuing Resolution; however, on September 27, Manchin pulled the Act from the Continuing Resolution given bipartisan opposition. The Act sought to improve energy production in the United States by accelerating agency review of certain energy projects and modernizing permitting laws.

On September 22, 2022, FERC denied a complaint filed on October 14, 2020 by Cricket Valley Energy Center LLC and Empire Generating Company, LLC. Complainants alleged that the New York Independent System Operator, Inc.’s (“NYISO’s”) capacity market offer floor rules—termed buyer-side market power mitigation rules (“BSM Rules”)—were unjust and unduly discriminatory because they failed to address price suppression in NYISO’s installed capacity (“ICAP”) spot market auctions. Complainants requested that FERC require NYISO to implement a minimum offer price rule (“MOPR”) that applies to all new and existing resources that receive out-of-market subsidies, with few or no exceptions. In denying the complaint, FERC relied on a May 2022 order accepting changes to NYISO’s BSM Rules to automatically exclude wind, solar, hydroelectric, geothermal, fuel cells that do not use fossil fuel, and demand response resources from adhering to an offer floor when bidding into NYISO’s capacity market. Commissioner James Danly issued a dissenting statement and Commissioner Mark Christie issued a concurring statement.

On September 16, 2022, a panel of three judges on the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued a decision in United Power, Inc. v. FERC affirming FERC’s exclusive jurisdiction over exit fees charged by Tri-State Generation and Transmission Association, Inc. (“Tri-State”), a Colorado generation and transmission cooperative.

Introduction

On September 22, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued a Notice of Proposed Rulemaking to establish rules providing incentive-based rate treatment for utilities making certain voluntary cybersecurity investments (“Cybersecurity NOPR” or “NOPR”).[1] According to FERC, the Cybersecurity NOPR seeks to benefit consumers and national security by encouraging investments in advanced cybersecurity technology and participation by utilities in cybersecurity threat information sharing programs, as directed by Congress in the Infrastructure Investment and Jobs Act of 2021 (“Infrastructure and Jobs Act” or “Act”).[2] While the Cybersecurity NOPR supersedes FERC’s December 2020 cybersecurity NOPR (whose docket is being terminated), the instant Cybersecurity NOPR generally retains the incentive provisions outlined in the December 2020 NOPR. Under the Cybersecurity NOPR, FERC proposes that:

On August 30, 2022, the U.S. Court of Appeals for the Fifth Circuit issued an order in NextEra Energy Capital Holdings, Inc. v. Lake, a case raising dormant Commerce Clause challenges to a 2019 Texas law that bans new entrants from building transmission lines that are part of a multistate electricity grid.  The majority reversed the lower court’s Rule 12(b)(6) dismissal of NextEra’s petition, thereby allowing the case to proceed to trial in district court.