On June 8, 2017, the North American Electric Reliability Corporation (“NERC”) released a report on the August 2016 Blue Cut Fire, which resulted in the loss of 1,200 megawatts (“MW”) of solar photovoltaic (“PV”) power generation.  NERC’s report contains recommendations for avoiding similar incidents by reconfiguring solar inverters, the devices that convert solar energy from direct current to alternating current.

On June 7, 2017, Senators Tim Kaine (D-VA) and Mark Warner (D-VA) introduced a bill in the U.S. Senate that would, among other things, revise the Natural Gas Act (“NGA”) to require FERC to (1) review two proposed interstate pipeline projects together under the National Environmental Policy Act of 1969 (“NEPA”) if the two pipelines are proposed within one year of each other and would be within 100 miles apart and (2) ensure that open houses regarding a proposed pipeline occur in each county in which the pipeline would be located.  In addition, on June 13, 2017, Representative H. Morgan Griffith (R-VA) introduced a similar bill in the U.S. House Committee on Energy and Commerce.

On June 8, 2017, the California Independent System Operator (“CAISO”) released the draft final proposal of Phase 2 of its energy storage and distributed energy resources (“ESDER”) initiative.  The aim of the proposal is to lower the barrier to entry and market participation for various transmission grid-connected energy storage and distribution-connected resources. “Integrating these resources,” the proposal states, “will help lower carbon emissions and add operational flexibility.”

On June 6, 2017, the United States Senate Committee on Energy and Natural Resources voted to advance the nominations of FERC Nominees Neil Chatterjee and Robert Powelson to the Senate floor.  The Committee approved both Nominee Chatterjee and Nominee Powelson by a vote of 20-3 each.  The vote follows the…

On June 8, 2017, the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) dismissed Total Gas & Power N.A., Inc., Aaron Hall, and Therese Tran’s (collectively, “Total”) arguments that the Natural Gas Act (“NGA”) provides federal district courts – not FERC – with exclusive authority to adjudicate violations of the NGA and assess civil penalties, finding that Total’s claims were unripe because FERC neither has determined that Total has violated the NGA nor assessed any civil penalties.  The Fifth Circuit also dismissed Total’s arguments that FERC’s procedures for appointing Administrative Law Judges (“ALJs”) and conducting hearings are unconstitutional. 

On June 5, 2017, the U.S. Supreme Court (“Supreme Court”) held that 28 U.S.C. § 2462’s (“Section 2462”) five-year limitations period for the enforcement of penalties applies to claims for disgorgement brought by the U.S. Securities and Exchange Commission (“SEC”).  As a result, additional federal agencies, including FERC, may similarly be limited to seeking disgorgement within five years of the date the claim accrued.

On June 5, 2017, Advanced Energy Economy (“Advanced”), a national trade association representing organizations within the energy efficiency, demand response, and other advanced energy industry sectors, filed a petition for a declaratory order with FERC.  Among other things, the petition requests that FERC assert exclusive jurisdiction over how Energy Efficiency Resources (“EERs”) can participate in markets operated by Regional Transmission Organizations and Independent System Operators (“RTOs/ISOs”).  In particular, Advanced highlights a recent proposal from PJM Interconnection, L.L.C. (“PJM”) to initiate a stakeholder process to ultimately grant state regulators the authority to bar, restrict, or otherwise condition EER participation in PJM’s capacity market.  The petition, filed while FERC still lacks a quorum to take action, came just days before the Kentucky Public Service Commission (“KYPSC”) issued an order restricting participation of EERs in PJM wholesale markets.

On June 1, 2017, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied petitions for review and upheld FERC’s interpretation of a transmission agreement (the “Operation Agreement”) between the Transmission Agency of Northern California (“TANC”) and Pacific Gas and Electric Company (“PG&E”).

On June 1, 2017, the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed LSP Transmission Holdings, LLC’s and LS Power Transmission, LLC’s (collectively, “LS Power”) challenges to Southwest Power Pool, Inc.’s (“SPP”) tariff revisions regarding the criteria SPP considers in its Order No. 1000 planning process to select developers for transmission projects identified for cost allocation through the Order No. 1000 planning process.  In doing so, the D.C. Circuit held that LS Power lacked standing to challenge FERC’s orders approving SPP’s tariff revisions because LS Power has no active bids to build a transmission project, nor has LS Power had a bid rejected by SPP.

On May 25, 2017, Federal Energy Regulatory Commission nominees Neil Chatterjee and Robert Powelson testified before the Senate Energy and Natural Resources Committee, marking their first joint appearance before the Committee since their nomination by President Trump (see May 9, 2017 edition of the WER).