On July 8, 2020, the U.S. Department of Energy (“DOE”) issued a request for information (“RFI”) seeking public input on the energy industry’s current risk mitigation practices with regard to the bulk-power system supply chain. The DOE issued the RFI pursuant to Executive Order No. 13920 (“Executive Order”), wherein the Secretary of Energy was directed, among other things, to investigate the bulk power system for equipment presenting a risk from foreign adversaries (see May 5, 2020 edition of the WER). In the RFI, DOE asks stakeholders to identify potential vulnerabilities in the bulk-power system supply chain that could have national security implications and the estimated economic costs of implementing the Executive Order.

On July 10, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an opinion resolving jurisdictional challenges under the Federal Power Act (“FPA”) of FERC’s electric storage resource (“ESR”) participation rule, holding that the challenges “fail to show that Order Nos. 841 and 841-A run afoul of the [FPA’s] jurisdictional bifurcation or that they are otherwise arbitrary and capricious” because they do not include a state opt-out provision.

On July 6, 2020, FERC moved for a ninety-day stay of the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit’s”) mandate in Allegheny Defense Project v. FERC. That decision upset FERC’s long-used practice of granting itself more time to consider requests for rehearing of its orders by issuing tolling orders (see July 1, 2020 issue of the WER). Although the decision was issued in the context of a pipeline proceeding under the Natural Gas Act (“NGA”), FERC’s motion noted that the impact of the D.C. Circuit’s decision extends to all requests for rehearing under the NGA, and presumably to those under the Federal Power Act as well. In support of its motion, FERC explained that over the past fifty years, tolling orders have been a critical tool to help manage its large case load and bring its expertise to bear on complex technical matters before they are presented to the courts of appeals. FERC stated that a stay of the court’s mandate would afford it time to consider how to revise its processes and allocate its resources in the absence of tolling orders. FERC also argued that a stay would give it and the Solicitor General additional time to consider whether to petition the Supreme Court for a writ of certiorari, though it noted that the ultimate decision of whether to petition the Supreme Court lies with the Solicitor General and the Department of Justice.

On July 7, 2020, the PJM Interconnection, L.L.C. (“PJM”) Planning Committee held an informational session on its State Agreement Approach, a transmission planning process that allows one or more states to request the studying and funding of new transmission projects within the PJM footprint to address identified public policy needs. The State Agreement Approach could help accommodate the anticipated growth in offshore wind generation by allowing states to submit transmission expansion or extension projects in the Regional Transmission Expansion Plan (“RTEP”) so long as the states agree to assume responsibility for project costs.

On June 18, 2020, FERC denied rehearing, but granted partial clarification, of a 2019 order addressing certain market power mitigation reforms proposed by the California Independent System Operator Corporation (“CAISO”). In particular, FERC again rejected CAISO’s “Net Export Limit” proposal to enhance local market power mitigation in the western energy imbalance market (“EIM”). As FERC reiterated in its order, the Net Export Limit proposal could allow EIM resource owners to limit dispatch during periods of market power mitigation, resulting in unjust and unreasonable market outcomes.

On July 1, 2020, FERC’s new rules for physical filings became effective.  The rules require that all physical filings and submissions delivered to FERC other than those sent via the U.S. Postal Service (“USPS”), be sent to an off-site security screening facility (see September 17, 2019 edition of the WER).

On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), sitting en banc, upset FERC’s long-used practice of granting itself more time to consider requests for rehearing of its orders by issuing “tolling orders.” FERC’s prior use of tolling orders prevented parties from seeking judicial review of a Commission order, but did not stay the effect of that order. The crux of the court’s decision is that the Natural Gas Act (“NGA”) gives FERC four express options to address a request for rehearing, all of which must be taken within thirty days, but deciding only to grant itself more time is not one of those options. The decision marks a sea change in FERC procedure, and raises a host of questions for pending and future proceedings under both the NGA and its companion statute, the Federal Power Act (“FPA”).

On July 2, 2020, FERC Chairman Neil Chatterjee and Commissioner Richard Glick issued a joint statement requesting that Congress pass legislation “providing FERC with a reasonable amount of additional time to act on rehearing requests involving orders under both the Natural Gas Act and the Federal Power Act.”  The statement goes on to say that “any such legislation should make clear that, while rehearing requests are pending, the Commission should be prohibited from issuing a notice to proceed with construction and no entity should be able to begin eminent domain proceedings involving the projects addressed in the orders subject to those rehearing requests.”

On June 18, 2020, FERC denied a complaint by Anbaric Development Partners, L.L.C. (“Anbaric”) against PJM Interconnection, L.L.C. (“PJM”) alleging that PJM’s transmission interconnection procedures denied meaningful open access interconnection service to Anbaric’s proposed offshore transmission projects (see December 11, 2019 edition of the WER). FERC’s June 18 order concluded that Anbaric failed to demonstrate that PJM’s transmission interconnection procedures are unjust and unreasonable, or that the requirements for merchant transmission projects are either inconsistent with open access transmission service or unreasonably limit transmission expansion. FERC also highlighted its upcoming technical conference to discuss offshore wind integration in organized markets (see June 24, 2020 edition of the WER). Commissioner Bernard McNamee issued a separate concurring statement in which he highlighted his support for the technical conference.

On June 22, 2020, FERC issued a declaratory order confirming its view that it shares jurisdiction with the United States Bankruptcy Court (“Bankruptcy Court”) over transportation agreements between ETC Tiger Pipeline, LLC (“ETC Tiger”) and Chesapeake Energy Marketing L.L.C. (“Chesapeake”). As a result, aside from obtaining approval from the Bankruptcy Court to reject its contracts with ETC Tiger, Chesapeake must seek a determination from FERC as to whether a filed rate may be modified or abrogated under the Natural Gas Act (“NGA”).

On June 18, 2020, FERC issued an order finding that PJM Interconnection, L.L.C. (“PJM”) has been inconsistently implementing Order No. 1000’s immediate need reliability project exemption and directed PJM to implement certain aspects of the exemption more fully and transparently. Concurrently, in separate orders, FERC concluded there was insufficient evidence to find that either Southwest Power Pool, Inc.’s (“SPP”) or ISO New England Inc.’s (“ISO-NE”) implementation of the immediate need reliability project exemption was unjust, unreasonable, or unduly discriminatory or preferential.