On January 27, 2020, FERC petitioned the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) for rehearing en banc of that court’s split (2-1) decision finding that the bankruptcy court’s concurrent jurisdiction is paramount, and that therefore, FERC-jurisdictional power purchase agreements may be rejected in bankruptcy without FERC review (see December 19, 2019 edition of the WER for a detailed analysis of the majority’s opinion and Judge Richard Allen Griffin’s opinion dissenting in part). This case is important because different courts have come to opposite conclusions over whether a debtor must obtain FERC authorization before it effects rejection in bankruptcy of a FERC-jurisdictional contract. This issue is also pending before the Ninth Circuit in proceedings associated with Pacific Gas & Electric’s ongoing bankruptcy proceeding.

On January 30, 2020, FERC granted in part and denied in part a declaratory order petition filed by PennEast Pipeline Company (“PennEast”) requesting that the Commission interpret the scope of a natural gas pipeline company’s eminent domain authority under the Natural Gas Act (“NGA”). FERC’s order follows a September 2019 decision by the United States Court of Appeals for the Third Circuit (“Third Circuit”), In re PennEast Pipeline Company, LLC (see September 18, 2019 edition of the WER). FERC’s January 30 declaratory order agreed with PennEast that Congress intended the NGA to be a vehicle for granting condemnation authority, and therefore intended to delegate the federal government’s own exemption from state sovereign immunity under the Eleventh Amendment to a natural gas company that holds a valid, FERC-issued Certificate of Public Convenience and Necessity (“CPCN”). However, FERC refrained from deciding whether that delegation of power is constitutional. The order was issued on a 2-1 vote, with Commissioner Richard Glick dissenting on both procedural and substantive grounds.

On January 29, 2020, thirty-six Democratic members of the U.S. House of Representatives (“Representatives”) signed a letter expressing their concern about FERC’s December 19, 2019 Order (“Order”) directing PJM Interconnection, L.L.C (“PJM”) to apply its Minimum Offer Price Rule (“MOPR”) to all state-subsidized capacity resources (see December 20, 2019 edition of the WER). According to the Representatives, the Order “nullif[ies]” state energy preferences, prohibits states from pursuing their policy goals, increases consumer costs by forcing them to buy duplicative capacity, runs contrary to FERC’s duty to ensure energy markets are truly competitive, and places deregulated markets at risk. The Representatives requested that the Commission provide a response to each concern discussed in the letter.

On January 30, 2020, FERC accepted revisions to the Midcontinent Independent System Operator, Inc. (“MISO”) planning resource auction participation rules for resources expecting extended outages during the planning year.  FERC simultaneously dismissed as moot an earlier-filed complaint by Wolverine Power Supply Cooperative (“Wolverine”) that alleged MISO’s Open Access Transmission, Energy and Operating Reserves Markets Tariff (“Tariff”) was unjust and unreasonable because it allowed resources with MISO-approved outages for the entire planning year to participate in the resource auction.

On January 31, 2020, FERC filed its brief in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) responding to consolidated petitions challenging Order No. 841. Order No. 841—the agency’s 2018 rulemaking that established a regulatory framework for Electric Storage Resources (“ESRs”) including grid-level batteries—is widely hailed as the legal lynchpin for the very recent, significant penetration by ESRs into the U.S. electricity resource mix. Accordingly, the D.C. Circuit proceeding has been closely watched by industry stakeholders as the petitioners seek to vacate important parts of the rule facilitating ESR participation in wholesale markets.

Petitions for review were filed in July 2019 by: (1) the National Association of Regulatory Utility Commissioners (“NARUC” or “State Commissions”); and (2) jointly by the American Public Power Association, National Rural Electric Cooperative Association, Edison Electric Institute, and American Municipal Power, Inc. (“Utility Petitioners”). The Transmission Access Policy Study Group also filed a brief as intervenor in support of petitioners.

On January 23, 2020, FERC accepted New York Independent System Operator, Inc.’s (“NYISO”) proposed revisions to its Tariffs to allow the aggregation of resources, including distributed energy resources (“DERs”), for purposes of participation in the NYISO markets. FERC found that NYISO’s proposed aggregation model (“Aggregation Participation Model”) provided a just and reasonable and not unduly discriminatory framework for such participation.

On January 24, 2020, FERC issued its rehearing order on several different issues regarding the recovery of costs associated with the abandoned Potomac-Appalachian Transmission Highline Project (“PATH”). Previously, in January 2017, FERC reduced PATH’s return on equity (“ROE”) during its abandonment phase from 10.4 to 8.11 percent, and denied PATH’s recovery of expenditures related to certain public relations activities. On rehearing, FERC:

  1. Upheld its prior determination that the project’s abandonment significantly reduced its risk profile;
  2. Declined to address PATH’s arguments that FERC erred in reducing its ROE to 8.11 percent, and instead established a paper hearing addressing whether and how FERC’s proposed revised base ROE methodology should apply; and
  3. Reversed its prior denial for PATH to recover expenditures related to public information campaigns about the benefits and licensing of the project.

On Tuesday, January 28, Democratic leadership from the House Energy and Commerce Committee, and Environment and Climate Change and Energy Subcommittees released legislative text of the draft “Climate Leadership and Environmental Action for our Nation’s (“CLEAN”) Future Act, which aims for the United States to achieve a “100 percent clean economy” no later than 2050.

On January 23, 2020, FERC concluded that a “pricing and dispatch mismatch problem” needs to be resolved before PJM Interconnection, L.L.C. (“PJM”) can revise the fast-start provisions in its Tariff, as previously directed by FERC on April 18, 2019.  Because PJM currently has a stakeholder process addressing the pricing and dispatch mismatch, FERC placed PJM’s fast-start pricing filing in abeyance until July 31, 2020 to allow PJM and its stakeholders the opportunity to fully consider any necessary changes. 

At FERC’s monthly meeting held on January 23, 2020, Commissioner Bernard L. McNamee announced he will not seek reappointment as commissioner after his current term ends on June 30, 2020. Commissioner McNamee indicated that he will serve through the end of his term or later, if needed to help maintain a quorum at FERC in 2020.