On May 24, 2018, the U.S. Department of Energy’s (“DOE”) Inspector General (“IG”) released an audit report of FERC’s natural gas pipeline certificate process, concluding that DOE “did not find any concerns that called into question the appropriateness of decisions FERC made on natural gas certification applications.”  The audit, which was conducted between October 2015 to May 2018, asked whether FERC’s certification process conformed to relevant laws, regulations, policies, and procedures, including timeliness and stakeholder input.  While DOE’s IG concluded that FERC generally performed the certification process in accordance with such laws and procedures, DOE’s IG also identified certain areas as needing improvement, including process transparency, public access to FERC records, tracking stakeholder comments, and data integrity.

On May 31, 2018, CPV Power Holdings, L.P., Calpine Corporation, and Eastern Generation, LLC (together, “Complainants”) filed a complaint against PJM Interconnection, L.L.C. (“PJM”), contending that PJM’s Open Access Transmission Tariff (“Tariff”) does not prevent the suppression of prices in PJM’s Reliability Pricing Model (“RPM”) market by resources receiving state subsidies, and that the solutions that PJM had proposed to FERC—“Capacity Repricing” and “Minimum Offer Price Rule (“MOPR”)-Ex”—are “inadequate and unjust and unreasonable.”  The Complainants argued that FERC should instead require PJM to adopt a “Clean MOPR”—meaning a MOPR “applicable to all subsidized resources and without categorical exemptions like those in PJM’s MOPR-Ex proposal.”

On May 29, 2018, the U.S. Department of Justice (“DOJ”) and FERC argued in a joint brief (“Joint Brief”) filed with the U.S. Court of Appeals for the Seventh Circuit (“Seventh Circuit”) that Illinois’ plan to provide credits to nuclear power plants does not interfere with FERC’s authority over wholesale electricity markets.  DOJ and FERC filed the Joint Brief in response to the Seventh Circuit’s request asking the agencies for their views on whether the Federal Power Act (“FPA”) preempts Illinois’ zero emission credits program (“Illinois ZEC Program”).

On May 24, 2018, FERC denied a complaint filed by the New Jersey Board of Public Utilities (“NJBPU”) alleging unjust and unreasonable cost allocations for the Bergen-Linden Corridor transmission project (the “Project”) within the PJM Interconnection, L.L.C. (“PJM”) footprint.  FERC rejected NJBPU’s claims that, among other alleged problems, PJM’s implementation of certain provisions in its tariff and the Joint Operating Agreement (the “JOA”) with the New York Independent System Operator, Inc. (“NYISO”) unfairly insulated New York ratepayers from costs associated with the Project, at the expense of New Jersey ratepayers and in violation of FERC’s Order No. 1000.  

On May 22, 2018, GlidePath Power Solutions LLC (“GlidePath”) filed a complaint with FERC under sections 206 and 306 of the Federal Power Act alleging that PJM Interconnection, L.L.C. (“PJM”) improperly rejected GlidePath’s interconnection request for a proposed battery storage facility (the “Project”).  GlidePath alleged that PJM relied on an impermissible interpretation of its generator interconnection rules, which require demonstration of site control, to unjustly deny interconnection service for the Project, resulting in cancellation of the Project’s interconnection request.  In its complaint, GlidePath requested that FERC find that PJM unjustly, unreasonably, and incorrectly applied its rules regarding site control, and that PJM must restore the queue position held by the Project. 

On May 17, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) in which it proposed to approve Reliability Standard TPL-007-2 (Transmission System Planned Performance for Geomagnetic Disturbance Events) submitted by the North American Electric Corporation (“NERC”).  Geomagnetic disturbance (“GMD”) events result from charged particles ejected from the sun that interact with and cause changes in the earth’s magnetic fields, impacting flows on electric power systems and potentially causing voltage instability and equipment failure.

On May 18, 2018, FERC denied rehearing of its April 28, 2016 order (the “April 28 Order”) approving Dominion Transmission, Inc.’s (“Dominion”) New Market Project.  Notably, FERC held that it is not required to analyze the upstream and downstream impacts of a proposed pipeline project unless those impacts are considered cumulative or indirect effects within the meaning of the National Environmental Policy Act (“NEPA”).  Commissioners Cheryl LaFleur and Richard Glick dissented in part, instead finding that FERC is required to provide the public with information relating to the upstream and downstream impacts of a proposed project and stating that FERC should ask applicants to provide such information.

On May 17, 2018, FERC issued Order No. 833-A wherein it denied rehearing of Order No. 833 and granted, in part, Edison Electric Institute’s (“EEI”) request for clarification of Order No. 833.  Order No. 833 amended FERC’s regulations regarding Critical Energy Infrastructure Information (“CEII”), as directed by the FAST Act.  The FAST Act, signed into law on December 4, 2015, added section 215A to the Federal Power Act (“FPA”) to improve the security and resilience of energy infrastructure in the face of emergencies.  The FAST Act also directed FERC to issue regulations on the procedures for designating certain material as CEII, provided for the imposition of sanctions on any party who knowingly discloses CEII, and authorized the voluntary sharing of CEII material.

On May 17, 2018, FERC affirmed an Initial Decision addressing a bandwidth calculation filing applicable to a seven-month period in 2005 filed by Entergy Services, Inc. on behalf of the Entergy Operating Companies (“Operating Companies”; collectively, “Entergy”) in November 2016. 

On May 17, 2018, FERC issued two orders denying requests for rehearing of two orders rejecting certain Southwest Power Pool, Inc. (“SPP”) Open Access Transmission Tariff (“OATT”) proposals that, as FERC found, provided Auction Revenue Rights (“ARRs”) and Long-term Congestion Rights (“LTCRs”) on an unjust and unreasonable basis (“May 2018 Orders”).  FERC’s previous orders, both issued on October 19, 2017 (“October 2017 Orders”), found that SPP was impermissibly providing ARRs and LTCRs for network service subject to “redispatch” (or, curtailment), on the same basis as network service not subject to redispatch (see October 25, 2017 edition of the WER).  In these latest orders, FERC rejected claims that, among other things, the October 2017 Orders had violated the contract rights of eligible network customers and that they constituted unlawful retroactive agency action.