On February 22, 2022, FERC issued a Supplemental Notice regarding its planned Technical Conference on its Notice of Inquiry on Financial Assurance Measures for licenses, scheduled to take place on Tuesday, April 26 at 11:30am.
The Supplemental Notice provides a schedule for the program and proposed panel topics. The first…
On March 24, 2022, FERC issued an Order Addressing Arguments Raised on Rehearing and Denying Motion for Temporary Stay regarding The Nevada Hydro Company, Inc.’s (Nevada Hydro) October 2017 license application for its proposed Lake Elsinore Advanced Pumped Storage (LEAPS) Project.
On March 24, 2022, FERC issued an order granting a motion to extend the deadline for submitting the cost justification filings required for spot market sales in the Western Electricity Coordinating Council (“WECC”) region that exceed FERC’s $1,000/MWh energy price cap. Sellers will now have 30 days after the end of the month in which any such sales occurred rather than seven days.
On March 24, 2022, FERC denied a petition filed by Irradiant Partners, LP (“Irradiant” or “Petitioner”) seeking waiver of the Commission’s Qualifying Facility (“QF”) filing requirement for its acquisition and recertification of 185 QFs. The Commission held that the recertification requirement—even at this scale—was not unduly burdensome, citing mitigating factors and emphasizing the particular importance of having up-to-date ownership information to assist FERC in monitoring for discrimination.
On March 24, 2022, FERC changed course and designated the two policy statements it issued last month regarding the certification of interstate natural gas pipelines (“Updated Policy Statement”) and consideration of greenhouse gas (“GHG”) emissions in natural gas project reviews (“Interim GHG Policy Statement”) as draft policy statements. The two draft policy statements will not apply to pending project applications or applications filed before FERC finalizes the policy statements. FERC also requested initial comments on the draft policy statements by April 25, 2022.
On February 17, 2022, FERC launched an inquiry to examine whether the use of dynamic line ratings would improve the accuracy and transparency of transmission line ratings.
On February 17, 2022, FERC set aside its September 2020 order rejecting the New York Independent System Operator Corporations (“NYISO’s”) tariff revisions to the “Part A Test,” a component of NYISO’s buyer-side mitigation (“BSM”) rules. The now-approved changes on rehearing permit NYISO to prioritize entry of renewable resources, battery storage, and other zero emission resources (“Public Policy Resources”) in New York’s Installed Capacity (“ICAP”) Market, rather than prioritizing new resources purely on a least-cost basis. FERC also ordered NYISO to submit a compliance filing within 30 days proposing a new effective date for its tariff revisions. Commissioner James Danly issued a separate dissenting statement, arguing that the reversal was a “cynical attempt” to preference renewable resources. Commissioner Mark Christie issued a separate concurring statement, agreeing with the majority that the result was just and reasonable in NYISO after concluding that the costs of the change would be confined to New York.
On February 18, 2022, FERC issued two new, significant policies governing how FERC will review proposals for new natural gas pipeline projects (see February 18, 2022, Troutman Pepper Insight). Headlining these policies is FERC’s new interim greenhouse gas (“GHG”) policy statement (“Interim GHG Policy Statement”), pursuant to which FERC will presume any gas project with 100,000 metric tons per year of carbon dioxide equivalents (“CO2e”) emissions to have a significant impact on climate change, and thus any such project will trigger the preparation of an Environmental Impact Statement (“EIS”). Notwithstanding the interim nature of FERC’s new Interim GHG Policy Statement – where FERC is accepting comments by April 4, 2022 – FERC clarified that it will apply both policies to all pending and new project applications, effective immediately. Both commissioners James Danly and Mark Christie issued lengthy dissents to both policy statements.
On February 4, 2022, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) issued a per curiam order granting NTE Connecticut, LLC’s (“NTE”) petition for issuance of a writ under the All Writs Act to stay a FERC order issued January 3, 2022 (“January 3 Order”). The January 3 Order terminated the Killingly Energy Center’s capacity commitments in the ISO-New England, Inc. (“ISO-NE”) capacity market. The DC Circuit’s order stays FERC’s January 3 Order until 30 days after FERC resolves NTE’s pending request for rehearing of the January 3 Order. The DC Circuit’s order also states that an opinion will follow in due course. As a result of the DC Circuit’s order, ISO-NE ran its Forward Capacity Auction on February 7, 2022 as scheduled but after “unwind[ing] the actions it had taken to terminate Killingly.” ISO-NE has stated that it will update the auction results if FERC confirms Killingly’s termination.
On January 25, 2022, FERC announced that FERC staff will hold a technical conference on Tuesday, April 26, 2022, regarding whether the Commission should require additional financial assurance mechanisms in the licenses and other authorizations that FERC issues for hydroelectric projects, to ensure that licensees have the capability to carry out license requirements and, particularly, to maintain their projects in safe condition.
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