On February 14, 2019, FERC Chairman Neil Chatterjee testified alongside officials from the North American Electric Reliability Corporation, the Department of Energy (“DOE”), the National Guard, and an engineering firm at a hearing before the U.S. Senate Committee on Energy and Natural Resources (“Committee”) to consider cybersecurity efforts in the energy industry.  In response to Senators’ questions about whether the natural gas industry should be subject to mandatory cyber security standards, a position the Chairman laid out in a June 2018 op-ed written with fellow FERC Commissioner Richard Glick, Chairman Chatterjee acknowledged that natural gas pipelines remain vulnerable to cyber-attacks and that it is imperative to continue work to address these threats.  He made clear, however, that industry and government have made significant strides toward addressing the issue even without mandatory cybersecurity standards.  Chairman Chatterjee assured the Committee that FERC is dedicated to protecting the energy sector from cyber threats and is ready to work with Congress and other agencies to bolster the nation’s cybersecurity posture.

On February 8, 2019, FERC approved nine revisions to the New York Independent System Operator, Inc. (“NYISO”) Tariff addressing its Public Policy Transmission Planning Process.  While the changes mainly provide additional process and transparency to NYISO’s existing procedures, NYISO also removed the requirement that the New York Public Service Commission (“New York Commission”) issue an order confirming the transmission need before NYISO can move forward with its planning process.

On February 11, 2019, a group of seventeen Democrat United States Senators and Senator Bernie Sanders wrote a letter (the “2019 Letter”) to FERC Chairman Neil Chatterjee urging FERC to adopt a rule requiring Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”) to open their markets to participation of aggregated distributed energy resources (“DERs”).

On February 5, 2019, a copy of a December 13, 2018 policy directive memorandum from the U.S. Department of the Army’s Assistant Secretary for Civil Works to the U.S. Army Corps of Engineers (“USACE”) Chief of Engineers was released.  Notably, the memorandum directs the USACE to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act (“CWA”) Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.

On December 14, 2018, Vineyard Wind, LLC (“Vineyard Wind”) filed a Petition with FERC to waive the pro-rata proration requirements of the ISO New England, Inc. (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”) so that Vineyard Wind could participate in the upcoming ISO-NE Forward Capacity Auction 13 (“Auction 13”) as a Renewable Technology Resource (“RTR”).  Because time was of the essence, Vineyard Wind asked FERC to render an expedited decision no later than January 29, 2019.  FERC took no action on the Petition, however, and as of this writing, has also not taken any action on Vineyard Wind’s subsequent Emergency Motion for relief, rendering it all but certain that Vineyard Wind will be unable to participate in Auction 13.

On February 5, 2019, in an unpublished summary order, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit (“2nd Circuit”) overturned the New York State Department of Environmental Conservation’s (“New York DEC”) denial of a water quality certification for National Fuel Gas Supply Corporation’s (“National Fuel”) Northern Access Pipeline Project and remanded it back to the state for further explanation.

On January 29, FERC issued an order accepting revisions to ISO New England Inc.’s (“ISO-NE”) Competitive Auctions with Sponsored Policy Resources (“CASPR”) program, the ISO-NE’s mechanism to integrate state-sponsored generation resources (“Sponsored Policy Resources”) that might otherwise suppress prices in its Forward Capacity Market.  The order addressed the contested test price mechanism in detail, ultimately accepting it as a just and reasonable modification to ISO-NE’s Forward Capacity Auction (“FCA”) design.  In so doing, FERC’s order permits ISO-NE to bar capacity resources from participating in the FCA secondary auction if those resources bid capacity into the FCA primary action at a price below the ISO-NE’s assessment of their going-forward costs.  FERC’s order drew a dissent from Commissioner Glick, who argued that the test price mechanism had not been shown to be just and reasonable.

On January 29, 2019, FERC rejected the New England Power Pool Participants Committee’s (“NEPOOL”) proposed revisions to its Second Restated NEPOOL Agreement (“NEPOOL Agreement”) that would have disqualified members of the press from being eligible to become NEPOOL members.  NEPOOL argued that the proposed revisions (“NEPOOL Press Amendments”) were necessary because allowing members of the press as NEPOOL members would undermine the effectiveness of the NEPOOL stakeholder process.  FERC rejected the revisions in part because, according to FERC, NEPOOL did not show that the revisions were just and reasonable and not unduly discriminatory or preferential.

On January 31, 2019, Commissioner Cheryl LaFleur announced that she is no longer seeking a third term and will be leaving FERC this year.  Commissioner LaFleur stated that she plans to stay at least until her current term expires, on June 30, 2019, and may stay longer depending on her plans and the appointment of her successor.