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 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 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

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 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

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 Supreme Court of the United States denied a petition to review FERC’s requirement in Order No. 1000 that transmission providers remove from their tariffs and agreements provisions granting incumbent transmission owners a right of first refusal (“ROFR”) to construct transmission facilities selected in a regional transmission plan (see April 13, 2016 edition of the WER). The October 14, 2016 petition, filed by a group of Midcontinent Independent System Operator, Inc. (“MISO”) transmission owners, requested review of an April 8, 2016 decision by the United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”) upholding FERC’s requirement.

The denial of the petition for writ of certiorari means that the Seventh Circuit’s April 8, 2016 ruling will stand. The case is docketed in Case No. 16-531.