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.

Continue Reading Sixth Circuit Holds that Departing Transmission Owners are Not Responsible for MISO Multi-Value Project Costs

On May 12, 2017, PJM Interconnection, L.L.C. (“PJM”) submitted to FERC revisions to the PJM Open Access Transmission Tariff (“OATT”), Attachment K-Appendix and the PJM Amended and Restated Operating Agreement, Schedule 1 to implement changes to the Operating Reserve demand curves (“ORDC”) that are embedded in PJM’s real-time market clearing engines.  According to PJM, the proposed changes to the ORDC are necessary to set clearing prices relative to the degree of severity of a reserve shortage. Continue Reading PJM Proposes Changes to Operating Reserve Demand Curves to Reduce Reserve Shortage Pricing

On May 9, 2017, the New Jersey Boroughs of Milltown, Park Ridge, and South River (collectively, “New Jersey Boroughs”) filed a Federal Power Act (“FPA”) Section 206 complaint against Public Service Electric & Gas Company (“PSE&G”) seeking to reduce PSE&G’s current base return on equity (“ROE”) of 11.18 percent to a base ROE of no higher than 8.3 percent.  Additionally, the New Jersey Boroughs requested that FERC order refunds and establish the date of the complaint as the refund effective date.

Continue Reading New Jersey Boroughs Request that FERC Reduce PSE&G’s Base ROE from 11.18 Percent to 8.3 Percent

On May 1, 2017, FERC filed a brief in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) arguing for the dismissal of United Airlines Inc. and UPS Fuel Services Inc’s (together, “Shippers”) petition for review of a 2013 FERC order in which FERC allowed Enterprise TE Products Pipeline Company LLC (“Pipeline”) to discontinue its jet fuel and diesel fuel transportation service to various shipping entities, including Shippers.  Shippers’ petition for review alleged that Pipeline’s termination of this service violated a 2013 settlement agreement (“Settlement Agreement”) requiring Pipeline to provide this service through May 31, 2015.  FERC’s brief argued that the petition should be dismissed for lack of justiciability, or in the alternative, for lack of standing.

Continue Reading FERC Seeks Dismissal of Jet Fuel and Diesel Fuel Shippers’ Petition for Review in D.C. Circuit Court of Appeals

On April 21, 2017, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) held that: (1) FERC did not act arbitrarily or capriciously in ordering the California Independent System Operator Corporation (“CAISO”) and California Power Exchange Corporation (“Cal-PX”) to net sales and purchases over hourly intervals when calculating refunds to entities that participated in the CAISO and Cal-PX markets during the California energy crisis of 2000-2001; and (2) that FERC did act arbitrarily and capriciously in allocating a $5 million refund shortfall only to net buyers instead of all market participants.  The Ninth Circuit opinion is the latest adjudicatory decision in a series of administrative hearings and judicial appeals arising out of the California energy crisis.

Continue Reading Ninth Circuit Upholds FERC’s Hourly Netting Refund Methodology, but Overturns FERC’s Treatment of $5 Million Refund Deficit Related to California Energy Crisis

On April 14, 2017, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) held that FERC erred in setting the base return on equity (“ROE”) for ISO New England Inc. (“ISO-NE”) at 10.57 percent.  The DC Circuit granted a petition filed by a group of New England transmission owners (“NETOs”), and a separate petition filed by a group of wholesale transmission customers and other consumer-side stakeholders (collectively, “Customers”) located in the New England region.  The DC Circuit vacated the underlying FERC order and remanded the case to FERC for further consideration.

Continue Reading DC Circuit Remands FERC Order on ISO New England Base ROE

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 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.

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). Continue Reading State Department Issues Presidential Permit for Keystone XL Pipeline