On July 19, 2024, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an Order denying Tenaska Clear Creek Wind, LLC’s (“Clear Creek”) challenges to FERC’s orders allowing the allocation of costs for network upgrades.  Southwest Power Pool, Inc. (“SPP”) assigned costs of more than $100 million to Clear Creek to pay for upgrades required on SPP’s system to accommodate the interconnection of Clear Creek’s wind turbine-powered electrical generation project (the “Project”).

On July 16, 2024, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) found that FERC failed to adequately consider a liquefied natural gas (“LNG”) project’s greenhouse gas (“GHG”) emissions and failed to properly assess the cumulative effects of the LNG project’s nitrogen dioxide (“NO2”) emissions. While the D.C. Circuit remanded to FERC for further consideration, it did so without vacatur.

On July 9, 2024, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated orders issued by the FERC that required six wholesale power sellers (the “Sellers”) to issue refunds to customers for power sales made above FERC’s “soft” price cap during the 2020 heatwave in California.  The court held that FERC “should have conducted [a] Mobile-Sierra analysis prior to ordering refunds,” and therefore remanded the orders so that FERC could “change its refund analysis for above-cap sales going forward.”

On July 9, 2024, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) declined to stay a new Environmental Protection Agency (“EPA”) rule that seeks to limit methane emissions in the oil and gas industries (“Methane Rule”), thereby allowing the Methane Rule to remain in effect while litigation proceeds.

On June 27, 2024, FERC accepted Midcontinent Independent System Operator Inc.’s (“MISO”) proposed tariff revisions that sought to implement a downward-sloping Reliability Based Demand Curve (“RBDC”) in the MISO Planning Resource Auction (“Auction”) beginning with the 2025/2026 Planning Year.  FERC determined that MISO’s proposal is not only consistent with its acceptance of similar sloped curves in other Regional Transmission Owners/Independent System Operators capacity markets but that MISO’s proposal to adopt a downward-sloping RBDC will reduce volatility in Auction Clearing Prices, increase the stability of the capacity revenue stream over time, and render capacity investments less risky, thereby encouraging greater investment and at a lower financing cost.

David Rosner and Lindsay See have been sworn in as FERC’s newest Commissioners on June 13 and 28, 2024, respectively. The FERC Open Meeting on June 27 marked Commissioner Rosner’s first Open Meeting and Commissioner Allison Clements’ last Open Meeting before her term expired on June 30, 2024. The U.S. Senate previously confirmed now-current Commissioners Rosner and See on June 13, 2024, along with Judy Chang. It is likely that Judy Chang will be sworn in as Commissioner in the coming days. Judy Chang’s swearing in will bring the agency to its full complement of five commissioners.  

On June 14, 2024, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied Food & Water Watch’s environmental challenges to the FERC’s order granting a certificate of public convenience and necessity (“CPCN”) to Tennessee Gas Pipeline Company (“Tennessee Gas”) for its East 300 Upgrade Project (“Project”).

On June 28, 2024, the United States Supreme Court (“Supreme Court”) overruled its prior decision in Chevron U.S.A. v. Natural Resources Defense Council (“Chevron”) in a 6-3 vote in Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. (“Loper Bright”). The Chevron doctrine has required federal courts to defer to administrative agencies’ interpretations of statutes the agency administers when the underlying statute is ambiguous. Under the Loper Bright ruling, federal courts will not defer to administrative agencies in interpreting ambiguous statutes and instead must exercise their judgment in determining whether the agency acted within its statutory authority. The decision will likely have a substantial impact on both regulated industries and federal agencies such as FERC.

On June 27, 2024, FERC issued an advance notice of proposed rulemaking (“ANOPR”) regarding potential reforms to require transmission providers to use dynamic line ratings (“DLRs”) to encourage more accurate and transparent line ratings. The Commission seeks comment on a proposed DLR framework and whether other transmission line rating reforms are needed to ensure just and reasonable and not unduly discriminatory or preferential FERC-jurisdictional rates. Initial and reply comments are due 90 and 120 days after the ANOPR’s publication in the Federal Register, respectively. After the comment period in this proceeding ends, FERC may consider issuing a formal Notice of Proposed Rulemaking, which would be a prerequisite to issuing any final rule.

We are pleased to announce the release of our latest whitepaper, Fueling Up: How to Make U.S. Clean Hydrogen Projects Happen. This comprehensive report explores the critical steps needed to unlock the potential of clean hydrogen in the U.S., and the related challenges faced by developers and utilities.