On April 6, 2017, Potomac Economics, Ltd. (“Potomac Economics”), the market monitor for the Midcontinent Independent System Operator, Inc. (“MISO”), New York Independent System Operator, Inc. (“NYISO”), and ISO New England Inc., requested that FERC eliminate PJM Interconnection, L.L.C.’s (“PJM”) requirement that external Capacity Performance Resources must be pseudo-tied to PJM.  In doing so, Potomac Economics argued that, among other issues, the requirement has caused congestion management issues for MISO and could impose similar and more significant costs on NYISO. Continue Reading Potomac Economics Requests That FERC Eliminate PJM’s Pseudo-Tie Requirement for External Capacity Performance Resources

On April 13, 2017 the Energy Storage Association (“ESA”) filed a complaint with FERC, alleging that PJM Interconnection, L.L.C. (“PJM”) had unilaterally implemented a series of changes to its Regulation market without FERC’s review and approval, in violation of the Federal Power Act (“FPA”).  ESA contended that its members who participate in the Regulation market had “suffered significant and detrimental financial harm” as a result of PJM’s changes, and that ESA was filing its complaint “to compel PJM to give the Commission the opportunity to determine whether each of these changes are just and reasonable and not unduly discriminatory.” Continue Reading Energy Storage Association Alleges Changes to PJM Regulation Market Violate FPA

On April 10, 2017, the U.S. Department of Justice, on behalf of FERC, argued to the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) that a recent district court order requiring de novo review of market manipulation allegations under the Federal Power Act (“FPA”) is inapplicable to similar circumstances under the Natural Gas Act (“NGA”).  FERC’s counsel challenged Total Gas & Power North America Inc.’s (“Total”) reliance on a district court order in FERC v. Barclays Bank PLC et al., (“Barclays Order”) (see April 10, 2017 edition of the WER), arguing that it does not support reading a “de novo review” option into the NGA because that order interpreted a separate FPA provision for which there is no parallel under the NGA. Continue Reading FERC Counsel Argues that Review of Market Manipulation Allegations under FPA Are Distinct from Similar Circumstances under NGA

On April 4, 2017, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) held that FERC had erred in finding that the terms of an interconnection agreement between NextEra Desert Center Blythe, LLC (“NextEra”), Southern California Edison Company (“SCE”), and the California Independent System Operator (“CAISO”) clearly and unambiguously bars NextEra from receiving Congestion Revenue Rights (“CRR”).  The DC Circuit remanded the case to FERC for consideration in light of the identified ambiguity.

Continue Reading D.C. Circuit Rules Against FERC in NextEra Contract Interpretation Dispute

On March 31, 2017, a group of California parties, consisting of various public power utilities and the California Public Utilities Commission (the “Complainants”), alleged in their complaint at FERC that Pacific Gas and Electric Company’s (“PG&E”) proposed transmission rates in its eighteenth rate filing (“TO-18”) contained significant errors and overstated expenses.  The Complainants requested that FERC investigate the proposed TO-18 rates, which FERC had already set for hearing and settlement judge procedures in a separate proceeding. In addition, the Complainants requested that FERC exercise its authority to supplement the refund effective date established for the proposed TO-18 rates, in the event that the record eventually justified establishing a revenue requirement below PG&E’s last “clean” rate, established through settlement in its seventeenth rate filing (“TO-17”). Continue Reading California Parties Request Refunds from PG&E Based on Alleged Errors in Proposed Transmission Revenue Requirement

In an order issued on March 28, 2017, the United States District Court for the Eastern District of California (“District Court”) rejected arguments from FERC regarding the scope of review and applicable procedural rules governing the District Court’s review of a market manipulation enforcement proceeding.  Like every other federal court decision expressly addressing this issue—including one from a different judge in that same court earlier that month (see March 20, 2017 edition of the WER)—the District Court held that the defending parties were entitled to conduct discovery under the Federal Rules of Civil Procedure (“FRCP”). Continue Reading California District Court Allows Discovery in Review of FERC Enforcement Action Against Barclays

On March 28, 2017, Dynegy Marketing and Trade, LLC and Illinois Power Marketing Company (collectively, the “Complainants”) filed a complaint against the Midcontinent Independent System Operator, Inc. (“MISO”) alleging that MISO has failed to comply with the terms of its Open Access Transmission, Energy and Operating Reserve Markets Tariff (“MISO Tariff”) with respect to resources “pseudo-tied” into PJM Interconnection, L.L.C. (“PJM”). According to the Complainants, MISO has been assessing congestion and losses charges to MISO resources pseudo-tied into PJM using “Financial Schedules” in a manner that “blatantly contravenes the MISO Tariff and that results in the unjust, unreasonable, and unduly discriminatory imposition of duplicative charges.” The Complainants request that the Commission order MISO to immediately cease and desist from imposing such charges and that MISO “refund duplicative congestion and losses charges unlawfully imposed.” Continue Reading Dynegy and IPM Allege MISO Failed to Comply with Own Tariff Regarding Resources Pseudo-Tied into PJM

On March 28, 2017, President Donald Trump signed an Executive Order that, among other things, (1) directed the Council on Environmental Quality (“CEQ”) to rescind its guidance for federal departments and agencies on the consideration of greenhouse gas (“GHG”) emissions in National Environmental Policy Act (“NEPA”) reviews; (2) withdrew documents implementing the Social Cost of Carbon tool for regulatory impact analysis; and (3) directed the Administrator of the Environmental Protection Agency (“EPA”) to review and determine whether to withdraw or revise the Clean Power Plan, which several agencies were in the process of implementing (see January 29, 2016 edition of the WER). Continue Reading Trump Executive Order to Rescind CEQ GHG Guidance, Withdraw Social Cost of Carbon Analysis, and Review Clean Power Plan

On March 23, 2017, a group of environmental advocates including the Allegheny Defense Project, Clean Air Council, and Sierra Club (“Environmental Petitioners”) filed a petition in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) to review a FERC order issuing a certificate for a pipeline proposed by Transcontinental Gas Pipe Line Company (“Order Issuing Certificate”), despite FERC Staff having issued an order granting rehearing for further consideration (“Tolling Order”)—a mechanism frequently used by FERC to allow it more time to act on a request for rehearing beyond the 30 days it is statutorily allowed.    Continue Reading In Petition to D.C. Circuit, Environmental Groups Claim FERC Staff “Tolling Order” on Request for Rehearing Invalid

On March 24, 2017, the United States Department of State (“State Department”) issued a presidential permit to TransCanada Keystone Pipeline, L.P. (“TransCanada”) authorizing TransCanada to import crude oil from Canada to the United States as part of TransCanada’s Keystone XL pipeline project. The presidential permit was issued under the authority of Executive Order 13337 and the January 24, 2017 Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (see January 30, 2017 edition of the WER).

After TransCanada first submitted its presidential permit application for the Keystone XL pipeline on January 31, 2014, it resubmitted its application on January 26, 2017 after Executive Order 13337 was issued. TransCanada’s President and Chief Executive Officer, Russ Girling, issued a statement calling the issuance of the presidential permit a “significant milestone for the Keystone XL project.”

The presidential permit is available here.