On March 29, 2018, FERC issued an order accepting proposed modifications to the methodology used to evaluate the availability of resource adequacy (“RA”) resources and resulting charges and payments under the Resource Adequacy Availability Incentive Mechanism (“RAAIM”) administered by the California Independent Operator Corporation (“CAISO”).  In the order, FERC agreed that CAISO’s proposal addressed identified problems such as overweighting certain types of resource adequacy capacity and discouraging parties from providing other types of capacity.

 On March 29, 2018, FERC issued an order granting a limited tariff waiver request by the California Independent System Operator Corporation (“CAISO”) relating to participation requirements for certain demand response resources in the California Public Utilities Commission’s (“CPUC”) Demand Response Auction Mechanism (“DRAM”) with delivery obligations between April-October in 2018 and 2019.  The waiver, which was necessitated by recent changes in CAISO’s resource adequacy program, will allow CPUC-identified DRAM resources to meet their contractual and regulatory obligations.  In granting the waiver, however, FERC stated that DRAM contracts executed after the date of the order and that do not conform with current CAISO requirements should not be eligible for the waiver.

On March 23, 2018, FERC accepted ISO New England Inc.’s (“ISO-NE”) filing to terminate a portion of the Capacity Supply Obligation (“CSO”) for a wind-powered electric generation facility (the “Disputed Portion”) owned by Blue Sky West, LLC (“Blue Sky West”).  Despite protests from Blue Sky West, FERC approved the requested termination, effective March 1, 2018.

On March 20, 2018, FERC extended the time for entities to submit reply comments to the filings submitted by the Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”) in the new grid resiliency proceeding.  Several trade associations requested additional time to respond to the “significant” comments that the RTOs/ISOs submitted to FERC, pertaining to the resilience of the bulk power system in their regions.

On March 16, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) affirmed FERC’s (1) reduction in NorthWestern Corporation’s (“NorthWestern”) Schedule 3 regulation service rate by removing “regulation-down” capacity from the rate’s numerator and increasing the denominator to the full nameplate capacity of NorthWestern’s generating facility and (2) decision to order NorthWestern to refund customers the difference between NorthWestern’s proposed rate and FERC’s approved rate.

On March 15, 2018, FERC denied the West Virginia Department of Environmental Protection’s (“West Virginia DEP”) and the West Virginia Division of Natural Resources’ (collectively, “West Virginia”) request for rehearing of FERC’s issuance of original licenses for two hydroelectric projects to be constructed, owned, and operated by FFP Missouri 15, LLC and FFP Missouri 16, LLC (collectively, “FFP”).  Specifically, FERC found that West Virginia waived its certification authority under section 401 of the Clean Water Act (“CWA”) by failing to act on the application within one year of receipt.

On March 19, 2018, FERC issued an order terminating its proceeding under section 206 of the Federal Power Act (“FPA”), accepting Idaho Power Company’s (“Idaho Power”) updated market power analysis, and concluding that Idaho Power successfully rebutted the presumption of market power.  In doing so, FERC concluded that Idaho Power satisfied the Commission’s standards for market-based rate authority in its own Balancing Authority Area (“BAA”).  In finding that Idaho Power had rebutted the presumption of market power, FERC relied on Idaho Power’s delivered price test (“DPT”) analysis and various sensitivity analyses using transaction data from both the Idaho Power BAA and an adjacent trading hub.

On March 15, 2018, FERC issued three interrelated orders regarding the creation of a new Transco within the Southwest Power Pool, Inc. (“SPP”), the integration of a new Transmission Owner within SPP, and the allocation of existing transmission costs for new transmission owners within the region.  The package of orders stems from South Central MCN LLC’s (“South Central”) acquisition of transmission facilities from a public power entity, the City of Nixa, Missouri.

On March 14, 2018 and March 15, 2018, FERC issued separate orders (1) reinstating the certificate for the Southeast Market Pipelines Project (“SMP Project”) and (2) authorizing DTE Midstream Appalachia, LLC’s (“DTE”) Birdsboro Pipeline Project.  In approving the projects, FERC held that determining the significance of the indirect effect of a pipeline on downstream greenhouse gas (“GHG”) emissions is not possible for purposes of FERC’s National Environmental Policy Act (“NEPA”) analysis, and that the Social Cost of Carbon tool is not appropriate for estimating a project’s downstream impacts in FERC’s NEPA analysis.  In partial dissents, Commissioners Cheryl LaFleur and Richard Glick asserted that GHG emissions estimates and the Social Cost of Carbon tool can inform FERC’s Natural Gas Act (“NGA”) section 7 evaluation.

On March 12, 2018, the U.S. Court of Appeals for the Second Circuit (“Second Circuit”) held that the New York Department of Environmental Conversation (“NY DEC”) waived its authority to act on Millennium Pipeline Company, L.L.C.’s (“Millennium”) application for a Clean Water Act (“CWA”) section 401 water quality certification by not acting on the application within one year of receipt.  In doing so, the Second Circuit rejected the NY DEC’s argument that the one-year statutory deadline begins when a state agency deems the application complete, rather than when the application is received.