On June 17, 2021, FERC took two actions to encourage transmission development across the U.S.  Specifically, FERC issued an order establishing a joint state-federal task force to evaluate transmission development issues, and also issued a policy statement clarifying that states and public utilities remain free to coordinate and collaborate on transmission projects. As Chairman Glick stated in the Commission meeting announcing the order and policy statement, these actions are intended to enable FERC to be “fully engaged with [its] state partners,” ahead of “several transmission initiatives” that may be issued from the Commission in the coming months.

On February 11, 2021, the Federal Energy Regulatory Commission (FERC) announced plans to create a senior position at the Commission to coordinate incorporation of environmental justice (EJ) concerns into the Commission’s decision-making process.  FERC Chairman Richard Glick indicated that the newly created office would be a cross-cutting position and that its eventual occupant would be charged with working with experts across all FERC program offices to ensure that EJ and equity matters are integrated into Commission decisions.  On May 20, Chairman Glick announced the appointment of Montina Cole to serve as Senior Counsel for Environmental Justice and Equity.  The FERC press release describes Cole as a “seasoned executive and attorney” with an active consulting and legal practice, “where she works at the intersection of climate policy, racial equity and resilience.”

In an order dated May 20, 2021, the Federal Energy Regulatory Commission (FERC, or the Commission) terminated the hydropower licenses for three projects located on the Tittabawasee River in Michigan—the Secord (P-10809), Smallwood (P-10810) and Sanford (P-2785) dams.  The termination by implied surrender follows a May 2020 breach at the…

On May 20, 2021, FERC issued a Show Cause Order directing GreenHat Energy, LLC (“GreenHat”) and its owners to show why they did not violate the Federal Power Act, FERC’s regulations, the PJM Interconnection, L.L.C. (“PJM”) Tariff, and the PJM Operating Agreement by manipulating PJM’s Financial Transmission Rights (“FTR”) market, generating $13 million in unjust profits and imposing $179 million in losses on PJM members. FERC also directed GreenHat and its owners to file an answer with FERC within 30 days showing why they should not be required to disgorge $13 million in unjust profits, plus interest, and to pay civil penalties totaling $229 million. FERC’s order is accompanied by a report from FERC’s Office of Enforcement (“OE Report”). Commissioner James Danly issued a separate concurring statement.

On May 20, 2021, FERC issued two orders in which it authorized two pipeline companies to construct and abandon certain pipeline facilities, subject to conditions. In an exciting and sometimes tense Commission open-meeting, the Commission ultimately approved Northern Natural Gas Company’s (“Northern”) application to construct and operate certain pipeline compression and auxiliary facilities and abandon short segments of existing pipeline (“2021 Expansion Project”) in Minnesota.

On May 19, 2021, FERC issued an order dismissing requests for rehearing of an order directing briefing (“Briefing Order”) about the operation of Algonquin Gas Transmission, LLC’s  Atlantic Bridge project after finding that requesting parties were not “aggrieved” under court precedent interpreting Section 19(a) of the Natural Gas Act (“NGA”).  Commissioner James Danly wrote separately in dissent explaining his view that FERC’s request for briefing means that the determinations made in the Atlantic Bridge certificate order are no longer settled and that the certificate order is in fact no longer final.  

On April 30, 2021, FERC accepted the California Independent System Operator Corporation’s (“CAISO”) submission of two proposals to revise its Tariff to amend provisions for its Energy Imbalance Market (“EIM”). In its first set of EIM enhancements, CAISO proposed to require EIM participants to settle deviations in their base schedules through CAISO’s market at a common location and price, eliminating EIM participants’ option to settle deviations in their base schedules bilaterally. In its second set of EIM enhancements, CAISO proposed to allow EIM participants the option not to have CAISO settle unaccounted for energy within an EIM participant’s balancing authority area (“BAA”), which results in a charge or credit to the affected EIM entity and can cause potential cost shifting in an EIM entity’s unaccounted for energy settlement. FERC accepted CAISO’s first proposal to be effective May 1, 2021, and the second set to be effective October 1, 2021.

On May 4, 2021, FERC issued Order No. 871-B, clarifying that the rule established in Order No. 871, which precludes FERC from authorizing natural gas pipeline companies to proceed with construction of approved pipeline projects, only applies until the earlier of either (a) the date that a qualifying rehearing request is no longer pending before FERC or (b) 90 days following the date that a qualifying request for rehearing may be deemed denied by operation of law. FERC also limited the application of this rule to requests for rehearing that raise issues reflecting opposition to project construction, operation, or need. Finally, FERC announced a general policy to stay Natural Gas Act (“NGA”) section 7 certificate orders during the rehearing period and pending resolution of any timely requests for rehearing. Commissioner James Danly dissented, arguing that the need for Order No. 871 is obviated by further developments on appeal of FERC’s practice of indefinite tolling orders before the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) and that presumptively staying pipeline project construction is contrary to the NGA and is “bad policy.” Commissioner Mark Christie concurred with Order No. 871-B.

On April 30, 2021, FERC rejected PJM Interconnection, L.L.C.’s (“PJM”) proposed revisions to both its Tariff and its Reliability Assurance Agreement (“RAA”) to implement an Effective Load Carrying Capability (“ELCC”) construct for determining capacity values for Variable Resources, Limited Duration Resources, and Combination Resources. PJM also proposed to update its capacity value analysis annually based on variations in resource deployment and load. To account for changes in capacity values from one year to the next, PJM had proposed a transition mechanism that would establish ELCC floor values for resources on a rolling annual basis for 13 years after they enter the PJM capacity market. FERC rejected PJM’s ELCC proposal, finding the proposed transition mechanism to be unjust and unreasonable. However, FERC found that aside from the transition mechanism, other portions of the ELCC framework appear to be just and reasonable for determining accredited capacity values. FERC lifted its previously-established abeyance on the paper hearing procedures addressing PJM’s capacity valuation method, and established a briefing schedule. FERC acknowledged that PJM is under no obligation to implement its ELCC proposal prior to the next Base Residual Auction (for Delivery Year 2022/2023), but emphasized that it “specified an expedient paper hearing schedule to investigate the justness and reasonableness of PJM’s existing capacity valuation methods as soon as possible.” Commissioner Christie issued a separate concurring statement.

On April 15, 2021, FERC issued a long-awaited policy statement providing guidance on incorporating state-determined carbon pricing into organized markets operated by Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”). The non-binding policy statement explains how FERC will review and consider rate filings submitted under section 205 of the Federal Power Act (“FPA”) to establish market rules for incorporating state-determined carbon pricing into RTOs and ISOs.