On April 25, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed Portland General Electric Company’s (“PGE”) and PáTu Wind Farm LLC’s (“PáTu”) petitions for review of FERC’s orders finding that PGE must purchase all of the power delivered by PáTu pursuant to their power purchase agreement (“PPA”) under the Public Utility Regulatory Policies Act (“PURPA”), but that PGE was not required to use dynamic scheduling. In doing so, the D.C. Circuit held, among other things, that: (1) it lacked jurisdiction to review FERC’s resolution of PGE and PáTu’s PURPA dispute because the orders were merely declaratory; (2) circuit court review of PURPA section 210(h) enforcement actions occurs on appeal from district courts; and (3) FERC’s Federal Power Act (“FPA”)-based regulations cited to by PáTu in support of its claim that FERC should require PGE to use dynamic scheduling only apply to the transmission customer-transmission provider relationship, which was unlike PáTu and PGE’s relationship. Continue Reading D.C. Circuit Dismisses PGE Petition for Review over PURPA Purchase Obligation, Denies PáTu Petition on the Merits
On April 14, 2017, Renewable Energy Systems Americas (“RES) and Invenergy Storage Development LLC (“Invenergy”) (collectively, the “Complainants”) filed a complaint with FERC against PJM Interconnection, L.L.C. (“PJM”), alleging that changes PJM made to a dispatch signal used in its Regulation market were unjust, unreasonable, and unduly discriminatory, and therefore in violation of the Federal Power Act (“FPA”) and FERC precedent. Continue Reading RES and Invenergy Allege PJM’s Change to Regulation Market Dispatch Signal Harms Storage Resources
According to various reports, President Donald Trump plans to appoint Kevin McIntyre as FERC Chairman, and Neil Chatterjee and Rob Powelson as FERC Commissioners, to fill the three vacant Commissioner seats at FERC. All three potential appointees are Republicans, whereas the current Commissioners—Acting Chairman Cheryl LaFleur and Commissioner Collette Honorable—are Democrats. Continue Reading Reports Suggest President Trump Plans to Appoint McIntyre as FERC Chairman, Chatterjee and Powelson as FERC Commissioners
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
Since Commissioner Norman Bay’s departure from FERC on February 3, 2017 created the absence of the requisite three-Commissioner quorum necessary for the Commission to vote (see January 31, 2017 edition of the WER), FERC Staff has continued to act on certain pending matters under the authority delegated to it by the Commission on February 3, 2017 (see February 3, 2017 Troutman Sanders Alert). Continue Reading FERC Staff Acting Under Delegated Authority in the Absence of Three-Commissioner Quorum
On February 3, 2017, FERC accepted Southwest Power Pool, Inc’s. (“SPP”) proposal to modify its Open Access Transmission Tariff (“Tariff”) to permit combined cycle resources to register as Multi-Configuration Resources (“MCR”) in its Integrated Marketplace. FERC accepted the modifications subject to SPP submitting a compliance filing to provide further clarification and refinement to address certain areas of ambiguity in SPP’s proposed tariff language.
On February 2, 2017, FERC rejected the Midcontinent Independent System Operator, Inc’s. (“MISO”) proposed Competitive Retail Solution (“CRS Proposal”), which would have bifurcated the MISO capacity market into two distinct market clearing processes – the existing Planning Resource Auction (“PRA”) and a newly proposed, three-year forward capacity auction (“FCA”) for jurisdictions that had implemented retail choice initiatives. FERC found that the proposed bifurcated construct could potentially have adverse impacts on price formation in both the PRA and the FCA.
On January 26, 2017, President Trump appointed Commissioner Cheryl LaFleur Acting Chairman of FERC. Acting Chairman LaFleur has been a member of the Commission since 2010, and previously served as Acting Chairman from November 2013 to July 2014, and as Chairman from July 2014 until April 2015. Continue Reading Commissioner LaFleur Appointed Acting Chairman of FERC; Commissioner Bay Resigns, Preventing Quorum Needed for FERC Action
On January 19, 2017, FERC issued a Policy Statement providing guidance on the ability of electric storage resources to receive cost-based rate recovery for certain services, while also receiving market-based revenues for providing separate market-based rate services in Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”). Continue Reading FERC Issues Policy Statement on Electric Storage Cost Recovery