On September 20, 2018, FERC denied rehearing and partially granted clarification of its order regarding Multi-Value Project (“MVP”) rate pancaking charges between PJM Interconnection, L.L.C. (“PJM”) and the Midwest Independent Transmission System Operator, Inc. (“MISO”).  In the underlying order, FERC determined that because MISO’s transmission projects benefited the existing MISO-PJM system, the limitation on rate pancaking imposed by FERC in 2003 and 2010 was no longer reasonable. 

On September 20, 2018, FERC dismissed Nevada Hydro Company, Inc.’s (“Nevada Hydro”) request that (1) the Lake Elsinore Advanced Pumped Storage (“LEAPS”) facility is a transmission facility and (2) LEAPS is entitled to cost-based rate recovery under the California Independent System Operator Corporation’s (“CAISO”) Transmission Access Charge.  FERC found that Nevada Hydro’s request is premature because LEAPS has not been studied in the CAISO Transmission Planning Process (“TPP”) to determine whether it addresses a transmission need identified through that process, and, if such a need were met, how the facility would be operated.

On September 12, 2018, FERC announced the initiation of a joint inquiry with the North American Electric Reliability Corporation (“NERC”) into a cold weather event that occurred in the Midwest and part of the South Central U.S. mid-January of this year.  Specifically, on January 17, 2018, regional operators in the midwest and south central United States issued emergency appeals for electricity conservation after an atypical forecast in electricity demand due to unusually cold temperatures.  As a result, there were reports of multiple forced generation outages, voltage deviations, and near-overloads during peak operations.

On September 6, 2018, FERC denied the PJM Interconnection, L.L.C.’s (“PJM”) rehearing request of FERC’s prior order rejecting proposed revisions to PJM’s Amended and Restated Operating Agreement (“Operating Agreement”) and Open Access Transmission Tariff (“OATT”) that would allocate uplift charges to Up-to-Congest transactions (“UTCs”) similarly to other virtual transactions.  However, FERC granted rehearing in part to accept PJM’s proposal to exclude internal bilateral transactions from the calculation of supply and demand deviations for the purpose of uplift allocation.

On September 6, 2018, FERC mostly denied rehearing of its February 20, 2018 order (“Proposal Order”) that accepted PJM Interconnection, L.L.C.’s (“PJM”) proposal to reduce the number of bidding points at which virtual transactions may be submitted by market participants (“Virtual Transactions Proposal”), finding PJM’s Virtual Transactions Proposal just and reasonable.  However, FERC did grant rehearing with respect to PJM’s request to modify the effective date of the revisions accepted in the Proposal Order to February 22, 2018.

On September 4, 2018, the U.S. Senate passed, by voice vote, two bills related to FERC’s authority under the Federal Power Act (“FPA”).  One bill, S. 186, would allow challenges to rate changes that would automatically go into effect when FERC is deadlocked.  The other bill, H.R. 1109, changes the monetary thresholds for determining when a proposed merger or acquisition requires FERC approval.

On September 4, 2018, the United States Court of Appeals for the Third Circuit (“Third Circuit”) declined to review Pennsylvania’s water permit approval of Transcontinental Gas Pipe Line Company’s (“Transco”) Atlantic Sunrise Project.  The Third Circuit ruled that it had jurisdiction to hear the state agency’s certificate decision on appeal even though the certificate decision was simultaneously being appealed to another Pennsylvania agency.

On September 5, 2018, the United States Court of Appeals for the Third Circuit (“Third Circuit” or “Court”) found that FERC did not violate federal law when approving Transcontinental Pipe Line Company, LLC’s (“Transco”) Garden State Expansion Project (“Project”).  The Third Circuit did, however, determine that the New Jersey Department of Environmental Protection (“NJDEP”) improperly denied requests for adjudicatory hearings on the issuance of various permits for the Project because the NJDEP misinterpreted the Natural Gas Act (“NGA”).  As such, the Third Circuit remanded back the permit issue so that NJDEP could reconsider those requests.

On August 31, 2018, the Federal Energy Regulatory Commission (“Commission”) issued an order (“August 31 Order”) in which it denied a complaint  (“Complaint”) by the California Public Utilities Commission, Northern California Power Agency, City and County of San Francisco, the State Water Contractors, and the Transmission Agency of Northern California (collectively, “Complainants”) against Pacific Gas and Electric Company (“PG&E”).  Complainants alleged that PG&E was in violation of its obligation under Order No. 890 to conduct an open, coordinated, and transparent transmission planning process because, according to Complainants, more than 80 percent of PG&E’s transmission planning is done on an internal basis without opportunity for stakeholder input or review.  In Order No. 890, the Commission found, among other things, that in order for a Regional Transmission Organization or Independent System Operator’s transmission planning processes to be open and transparent, transmission customers and stakeholders must be able to participate in each underlying transmission owner’s transmission planning process. 

On July 24, 2018, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) affirmed FERC’s 2015 and 2016 orders denying challenges to ISO New England’s (“ISO-NE”) ninth and tenth Forward Capacity Auctions (“FCA 9” and “FCA 10”) and approving the results of those auctions.  The D.C. Circuit found that petitioners, Utility Workers Union of America Local 464 and its President, Robert Clark, failed to establish standing to challenge the FERC orders approving the results of FCA 9 and FCA 10.