In an order issued June 9, 2020, FERC accepted a proposal from the Midcontinent Independent System Operator, Inc. (“MISO”) to require certain solar generating facilities to respond to real-time dispatch signals by registering as Dispatchable Intermittent Resources (“DIRs”).  Through MISO’s proposal, all solar resources entering commercial operation on or after March 15, 2020 must register as DIRs and become dispatchable by March 15, 2022, whereas solar resources in operation before March 15, 2020 have the option, but are not required, to obtain DIR registration.  In accepting the proposal, FERC rejected arguments from one protestor that the proposal unduly burdened solar projects in late-stage development, finding that MISO’s proposed two-year transition period for such resources was reasonable. Continue reading →

On May 1, 2020, President Trump declared a national emergency regarding ongoing threats to the U.S. bulk power system from “foreign adversaries,” and issued an executive order prohibiting certain equipment transactions and instructing the U.S. Department of Energy (“DOE”) to take various other responsive actions. Notably, the “Executive Order on Securing the United States Bulk-Power System” (“Executive Order”) empowers DOE, in consultation with other federal agencies, to (i) establish a “pre-qualified” list of venders for future bulk power system equipment transactions; (ii) develop recommendations to identify, isolate, monitor, or replace bulk power system equipment presenting a security risk from foreign adversaries; and (iii) establish a Task Force to update agency procurement requirements, develop policy recommendations, and issue reports. Continue reading →

Notable News Articles:

• NYISO Voluntarily Sequesters Teams of Grid Operators to Ensure Reliability (Bloomberg, March 26, 2020)
  • Four teams of control-room operators have voluntarily agreed to sequester on-site
  • Grid operators in PJM, CAISO, ERCOT, are keeping grid operator teams isolated, but no other sequestrations yet.
• Con Edison workforce getting battered by COVID cases: 170 confirmed cases, 3 deaths (Utility Dive, April 3, 2020)
• Group of Democrat U.S. Senators Support Resolution Proposing Moratorium on Utility Disconnections and Rate Increases during COVID Crisis (Portland Business Journal, April 8, 2020; Resolution)

Notable FERC Filings:

• NERC Cites COVID Concerns in Motion to Defer Implementation of Certain Reliability Standards; Requests Shortened Comment Period and Expedited Action (RM15-4; RM16-22; RM17-13; RD18-4)
• FERC Actions on April 2 (FERC News Release, April 2, 2020)
  • FERC Issues Policy Statement Providing Regulatory Guidance on Energy Infrastructure, market, Reliability, and Security Matters.
    • Clarifies that FERC will give highest priority to filing made for purposes of reliability operation, including requests for cost recovery for business continuity purposes
  • Blanket waiver of tariff requirements on in-person meetings or notarized documents
  • Delegated authority to staff to act on uncontested requests for prospective waiver of certain obligations—effective until June 1, 2020
  • Delegated authority to allow staff to grant time extension requests for FERC Form No. 553, FERC 730 filings
  • Extended time for RTO/ISO uplift report filings.
  • Supplemental notice granting extensions of time for certain non-statutory deadlines, waiving regulations and shortening answer periods for motions for extensions of time due to the pandemic emergency.

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 (“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.   Continue reading →

On May 17, 2018, FERC issued two orders denying requests for rehearing regarding dual rejections of 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. FERC’s previous orders, both issued on October 19, 2017, 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, FERC’s October 19, 2017 orders had violated the contract rights of eligible network customers and that they constituted unlawful retroactive agency action. Continue reading →

On March 9, 2018, a divided FERC approved the Competitive Auctions with Sponsored Policy Resources (“CASPR”) proposal submitted by the ISO New England Inc. (“ISO-NE”). Developed through an extensive stakeholder process that began in 2016, CASPR was promoted by ISO-NE as a mechanism to integrate out-of-market state resource policies that might otherwise suppress capacity market prices in ISO-NE’s capacity market. A divided FERC approved the proposal as a just and reasonable accommodation of state policies, with Commissioner Powelson dissenting, arguing that the proposal dilutes market signals and “threatens the viability” of ISO-NE’s capacity market. Commissioners LaFleur and Glick concurred with the outcome, but criticized the order’s guidance on adapting markets to state energy policies, and reliance on minimum offer pricing rules (“MOPRs”) as the “standard solution” to achieve that end. Continue reading →

In a decision issued on March 6, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or the court) upheld a series of FERC orders declining to direct Entergy Services Inc. (“Entergy”) to pay refunds for previously misallocated capacity costs. The D.C. Circuit found that FERC adequately explained its reasoning and clarified that—contrary to previous assertions—the Commission has no general policy of ordering refunds in cases involving flawed rate design, and that it had adequately explained that such a refund order would be inequitable in this instance. Continue reading →

On February 14, 2018, FERC accepted a suite of system functionality enhancements to the Energy Imbalance Market (“EIM”) proposed by the California Independent System Operator Corporation (“CAISO”).  The enhancements, which became effective the following day, included automated matching of import/export schedule changes between resources inside and outside the EIM, as well as allowing EIM entities to use CAISO’s settlement process to address base energy transfer differences.  As CAISO explained in its proposal, the requested enhancements will improve the EIM overall, as well as facilitate the entrance of Powerex Corp. and Idaho Power Company into the market on April 4, 2018. Continue reading →

On January 31, 2018, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied requests for an en banc rehearing of an August 2017 decision (Sierra Club v. FERC) vacating FERC’s approval of the Southeast Market Pipelines Project (“SMP Project”), a natural gas pipeline currently under construction in the southeastern United States. In its August decision, the D.C. Circuit held that FERC failed to analyze the greenhouse gas emissions that would result from the SMP Project, as required by the National Environmental Policy Act (“NEPA”). On February 2, 2018, the developers for the SMP Project filed a request at FERC for expedited reissued construction approval certificates, or in the alternative, temporary emergency certificates, arguing that halting work on the SMP Project will cause “irreparable harm.” Continue reading →

On January 26, 2018 the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) rejected a challenge to FERC’s approval of tariff revisions from the PJM Interconnection, L.L.C. (“PJM”) regarding the so-called cost-of-new-entry (“CONE”), or the anticipated revenues required to recover costs in PJM’s wholesale capacity market. A coalition of generators challenged PJM’s CONE as too low, which they argued undercut their own recovery in the capacity market. In a brief opinion, the D.C. Circuit held that petitioners’ claims failed to overcome the deferential standard of review applied to factual challenges to agency orders. Continue reading →