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
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 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 21, 2017, the Wyoming Pipeline Authority (“WPA”) withdrew its request for rehearing of the delegation order that FERC issued on February 3, 2017 (“Delegation Order”) in anticipation of the Commission’s loss of quorum following the departure of former Chairman Norman Bay. The Delegation Order allows FERC staff to take action on certain matters until no later than fourteen days after a quorum is restored (see February 21, 2017 edition of the WER). WPA filed its rehearing request on March 6, 2017 and argued that the Delegation Order impermissibly grants powers to FERC staff that are greater than those conferred to the Commission itself by Congress (see March 13, 2017 edition of the WER).
WPA’s March 21 filing, which can be found here, provides no explanation for the withdrawal. It was the only formal contest to the Delegation Order.
In an order issued on March 7, 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. The District Court held that the Federal Rules of Civil Procedure (“FRCP”) applied to the action and rejected arguments that it was limited to “de novo” review of the administrative record as compiled by FERC. As a result, the District Court ordered FERC to provide discovery to the opposing parties. Continue Reading California District Court Orders Discovery in FERC Enforcement Case
On March 6, 2017 the Wyoming Pipeline Authority (“WPA”) requested rehearing of FERC’s February 3, 2017 Delegation Order (“Delegation Order”). In the filing, the WPA asserted that the Delegation Order exceeds FERC’s statutory authority because it purports to authorize agency staff members to take action that would not be possible for FERC itself to take due to the current lack of quorum. This deficiency, WPA argued, can only be cured through the appointment of new Commissioners. Continue Reading Wyoming Pipeline Authority Challenges Legality of FERC Delegation Order
On February 28, 2017 FERC Staff released their Energy Infrastructure Update for January 2017. In these monthly reports, Staff provides updates on various projects in the natural gas, hydropower, electricity generation, and electricity transmission sectors. Continue Reading FERC Staff Issues Energy Infrastructure Update for January 2017
On February 21, 2017, the North American Electric Reliability Corporation (“NERC”) submitted its annual risk-based Compliance Monitoring and Enforcement Program (“CMEP”) report to FERC. In the report, NERC reviewed the CMEP’s progress for 2016 and proposed two enhancements to improve the program’s efficiencies and effectiveness. Specifically, NERC proposed (1) discontinuing the requirement that registered entities publicly-post their noncompliance logs and (2) expanding the use of Compliance Exceptions (“CEs”) to include certain moderate-risk noncompliance issues. NERC asserted that the proposed enhancements would allow the CMEP to better target higher-risk issues that can impact the reliability of the bulk power system. Continue Reading NERC Submits Annual Monitoring and Enforcement Report; Proposes Enhancements to Self-Logging and CE Programs
On February 10, 2017, FERC issued a notice announcing a day-long technical conference to be held on Thursday, June 22, 2017. As stated in the notice, the purpose of the conference will be to discuss policy issues related to the reliability of the Bulk-Power System. The Commission has held similar technical conferences on policy issues related to reliability on an annual basis for the last few years (see February 8, 2016 edition of the WER).
An agenda has yet to be released. The conference is free and open to the public, but prospective attendees are encouraged to register online. March 3, 2017 is the deadline for prospective panel participants to submit their nominations through FERC’s online speaker registration form.
The notice announcing the technical conference can be found here.
On February 3, 2017, FERC partially granted a complaint against the New York Independent System Operator, Inc. (“NYISO”) regarding the application of buyer-side market power mitigation rules to demand response resources in NYISO’s installed capacity market (“ICAP”). In its order, FERC found that NYISO’s application of its mitigation rules was unjust and unreasonable as to future demand-side generators. FERC allowed prospective exemptions for such resources, but denied exemptions for such resources currently subject to NYISO market power mitigation. Separately, outgoing Commissioner Bay wrote a lengthy concurrence in which he argued that FERC should reconsider the rationale behind its minimum offer price rule policy (“MOPR”) and its applicability in wholesale electricity markets. Continue Reading FERC Exempts Certain Demand Response Resources from Buyer-Side Mitigation in NYISO; Bay Questions FERC’s Minimum Offer Price Rule Policy Rationale in Concurrence