On July 14, 2017, the New York Independent System Operator, Inc. (“NYISO”) filed proposed revisions to its Market Administration and Control Area Services Tariff (“Tariff”) designed to: (i) enhance the rules governing the forecasts determined and used by the NYISO in the course of making determinations under its Buyer-Side Market Power Mitigation Measures for Installed Capacity (“BSM Rules”); and (ii) improve the rules governing the use of escalation factors and inflation rates under the BSM Rules (“July 14 Filing”).  NYISO requested that the revisions become effective September 12, 2017, and stated that this effective date would enable NYISO to apply the revised Tariff provisions when making its determinations under the BSM Rules for resources in Class Year 2017.

On July 13, 2017, President Donald Trump announced his intention to nominate Kevin McIntyre of Virginia to serve as a FERC Commissioner for the term expiring June 30, 2018, and an additional term expiring June 30, 2023.  President Trump announced further that upon confirmation by the United States Senate, Mr. McIntyre will be designated Chairman of FERC.  According to the White House press release announcing the intended nomination, Mr. McIntyre has spent most of his nearly 30-year legal career in private practice.

On July 13, 2017, FERC Office of Enforcement Staff issued a Notice of Alleged Violation against Rover Pipeline, LLC and Energy Transfer Partners, L.P. (collectively, “Rover”) alleging that Rover, in its application for a certificate of public convenience and necessity (“Application”) and subsequent filings, did not disclose all relevant information regarding the avoidance of adverse effects to a certain historic resource.  In addition, on July 12, 2017, FERC Office of Energy Projects (“OEP”) Staff issued a letter listing the activities Rover must complete prior to receiving authorization to place its proposed pipeline into service.

On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) vacated and remanded a set of FERC orders that revised the minimum offer price rule (“MOPR”) of PJM Interconnection, L.L.C. (“PJM”).  The D.C. Circuit held that FERC exceeded its role under Federal Power Act (“FPA”) Section 205 by imposing changes that amounted to an “entirely new rate scheme” for PJM.

On June 30, 2017, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied a petition by Seminole Electric Cooperative, Inc. (“Seminole”) seeking to increase the refund amount FERC ordered Florida Power & Light Company (“FP&L”) to pay Seminole for overcharges related to energy imbalance services.  Seminole raised two challenges to FERC’s refund order: (1) FERC improperly restricted the refund period to twenty-four months, as opposed to the full four and a half year period for which FP&L overcharged Seminole for energy imbalance services; and (2) FERC failed to require that energy imbalance charges be apportioned among the three tiers established in Schedule 4 of FP&L’s Tariff.

On June 30, 2017, the Massachusetts Department of Energy Resources (“DOER”) informed the Massachusetts Legislature of its adoption of a 200 MWh energy storage target for electric distribution companies (“EDCs”) to procure “viable and cost-effective energy storage systems” within the Commonwealth of Massachusetts.  DOER specified that the target is to be achieved by January 1, 2020, and would permit EDCs to identify the most cost-effective applications and the best locations for energy storage deployment, including both in front of the meter and behind the meter applications.

On June 28, 2017, the United States Court of Appeals for the Second Circuit (“Second Circuit”) affirmed a district court’s dismissal of challenges to Connecticut’s renewable energy solicitation program and Renewable Portfolio Standard (“RPS”) law.  The Second Circuit rejected arguments from the plaintiff-appellant, Allco Finance Limited (“Allco”), that the solicitation program was preempted by the Federal Power Act (“FPA”) and the Public Utility Regulatory Policies Act of 1978 (“PURPA”) and that the RPS law unduly burdens interstate commerce, in violation of the “dormant commerce clause.”

On June 28, 2017, President Donald Trump announced his intention to nominate Richard Glick, a Democrat from Virginia, to be a FERC Commissioner for a five-year term ending June 30, 2022.  In addition, on June 30, 2017, Commissioner Colette Honorable announced that June 30, 2017 was her final day as a FERC Commissioner and that she would not be staying past her term (see May 9, 2017 edition of the WER).

On June 21, 2017, the United States Circuit Court of Appeals for the Sixth Circuit (“Sixth Circuit”) upheld FERC’s determination that American Transmission Systems (“ATS”) and Duke Energy Ohio, Inc. (“Duke”) are not required to pay for projects that the Midcontinent Independent System Operator, Inc. (“MISO”) approved after ATS and Duke announced separately that they would be withdrawing from MISO, but prior to their actual departures.