On August 10, 2017, Robert Powelson was officially sworn-in as a FERC Commissioner, restoring the three-Commissioner quorum necessary for FERC to resume regular business and vote on matters before it.  Commissioner Powelson joins Commissioner Neil Chatterjee, who was sworn in on August 8, 2017, and Commissioner Cheryl LaFleur.  On the same day as Commissioner Powelson’s swearing-in, President Trump named Commissioner Chatterjee to be Chairman until one of the remaining FERC Commissioner nominees, Kevin McIntyre, is confirmed by the Senate and sworn in. Continue Reading FERC Quorum Restored Following the Swearing-in of Commissioner Powelson; Commissioner Chatterjee Named Interim Chairman

On the evening of August 3, 2017, the U.S. Senate voted unanimously to confirm Neil Chatterjee and Robert Powelson, two of President Donald Trump’s nominees to join Acting Chairman Cheryl LaFleur as FERC Commissioners.  Once Chatterjee and Powelson are officially sworn in at the Commission, the quorum that has been lacking since former Chairman Norman Bay resigned earlier this year will be restored, enabling the Commission to vote on matters before it.  On September 7, 2017, the Senate Committee on Energy and Natural Resources also is scheduled to consider the nominations of Richard Glick and Kevin McIntyre—the final two nominees for the five-member Commission whose names the White House sent to the Senate in August. Continue Reading FERC Quorum Soon to Be Restored as Senate Confirms Neil Chatterjee and Robert Powelson to Serve as Commissioners

On July 25, 2017, two weeks after an Illinois federal judge issued a similar ruling, the U.S. District Court of the Southern District of New York (“District Court”) issued an order dismissing challenges to a New York state “zero emission credit” (“ZEC”) program established by the New York Public Service Commission (“NYPSC”).  As with the Illinois court’s decision regarding the Illinois ZEC program (see July 25, 2017 edition of the WER), the District Court found the New York ZEC program constitutional and determined that the challengers lacked a private right of action to challenge the New York ZEC program on preemption and dormant commerce clause grounds.  Nevertheless, the District Court reached, and rejected, the merits of those challenges.  Continue Reading Federal District Court Dismisses Challenges to New York ZEC Program

On July 20, 2017, the D.C. Court of Appeals (the “Court”) upheld the Public Service Commission of the District of Columbia’s (the “DCPSC”) approval of the merger between Exelon Corporation and Pepco Holdings, Inc. (“Applicants”).  Specifically, the Court held that the DCPSC provided adequate notice to the public of hearings on the merger and the DCPSC adequately explained how its decisions were in the public interest. Continue Reading D.C. Court of Appeals Rejects Challenges to Exelon-Pepco Merger

On July 23, 2017, the Southwest Power Pool, Inc. (“SPP”) Board of Directors and Members Committee voted to authorize SPP President and Chief Executive Officer Nick Brown to terminate the Regional Delegation Agreement (“RDA”) between SPP and the North American Electric Reliability Corporation (“NERC”), which would effectively dissolve the SPP Regional Entity (“SPP RE”)—an independent and functionally separate division of SPP.  The SPP RE Trustees approved a resolution on July 24, 2017, endorsing the decision.

Continue Reading SPP to Dissolve its Regional Entity Function by December 31, 2018

On July 14, 2017, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated in part the Federal Energy Regulatory Commission’s (“FERC”) orders approving a Joint Dispatch Agreement (“JDA”) between Duke Energy Carolinas, LLC (“Duke”) and Progress Energy Carolinas, Inc. (“Progress”).  Specifically, the D.C. Circuit found that FERC failed to articulate a satisfactory explanation for approving the provisions of the JDA that provide for disparate treatment of wholesale ratepayers.  As discussed below, the D.C. Circuit remanded the matter to FERC, directing it to reconsider the relevant JDA provisions and provide a reasoned explanation for its approval of the JDA.

Continue Reading D.C. Circuit Remands Duke-Progress Joint Dispatch Agreement for Disparate Treatment of Wholesale Ratepayers

On July 14, 2017, the United States District Court for the Northern District of Illinois, Eastern Division (“District Court”), issued a memorandum opinion and order dismissing various challenges to an Illinois “zero emission credit” (“ZEC”) program passed into law at the end of 2016 (“ZEC Program”).  After finding that the plaintiffs largely lacked standing to bring their claims, the District Court nonetheless reached the merits of, and rejected, the plaintiffs’ preemption, equal protection, and dormant commerce clause challenges to the ZEC Program.  Three days after its release, the ruling was appealed to the U.S. Court of Appeals for the Seventh Circuit (“Seventh Circuit”). Continue Reading Federal District Court’s Standing Analysis and Dismissal of Illinois ZEC Challenges Heads to Court of Appeals

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. Continue Reading NYISO Proposes Enhancements to Buyer-Side Mitigation Rules for Installed Capacity Market

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. Continue Reading President Trump Intends to Nominate Kevin McIntyre as FERC Commissioner and Designate as Chairman

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. Continue Reading FERC Staff Issues Notice of Alleged Violation Against Rover Pipeline for Misstatements in Certificate Application