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.

On March 2, 2017, the U.S. Senate voted 62-37 to confirm Rick Perry as the Secretary of the Department of Energy (“DOE”). Secretary Perry will succeed Dr. Ernest Moniz. Prior to his confirmation as Secretary of the DOE, Secretary Perry was Governor of Texas from December 2000 to January 2015, qualifying as the longest-serving governor in Texas history.

After being sworn in, Secretary Perry stated, “It is an honor and privilege to serve as the Secretary of the [DOE]. As Secretary, I will advocate and promote American energy in all forms.”

A record of the vote on Secretary Perry’s confirmation is available here. The DOE’s press release on the swearing in of Secretary Perry is available here.

On February 21, 2017, FERC’s Acting Chairman, Cheryl LaFleur, announced the appointment of Judge Clark S. Cheney as a FERC Administrative Law Judge (“ALJ”).

Judge Cheney previously served as an ALJ with the Social Security Administration. Prior to working at the Social Security Administration, Judge Cheney was an attorney adviser and Acting Assistant General Counsel at the U.S. International Trade Commission. Judge Cheney has also worked in private practice during his career, where he advised on intellectual property and other legal matters.

In welcoming Judge Cheney, Acting Chairman LaFleur stated that Judge Cheney’s “extensive experience will benefit [FERC] and the public.”

A copy of the press release is available here.

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 15, 2017, the PJM Interconnection, L.L.C. (“PJM”) Board authorized more than $1.5 billion in electric transmission projects in the PJM-region as part of the Regional Transmission Enhancement Plan process. According to PJM President and CEO Andy Ott, the current round of project approvals addresses “the growing need to replace aging infrastructure, energy efficiency, and the resulting reduction in the growth of demand for electricity.” Both the list of approved projects and the proposed cost allocation for each project will be the subject of future filings with FERC.

Continue Reading PJM Board Authorizes $1.5 Billion in Transmission Projects

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

On January 30, 2017, FERC granted in part a request for rehearing of its May 16, 2013 order, which accepted in part and rejected in part the New York Independent System Operator, Inc.’s (“NYISO”) August 19, 2011 compliance filing implementing Order No. 745. Continue Reading FERC Grants Rehearing in Part on NYISO Order No. 745 Compliance Filing

On January 24, 2017, President Donald Trump issued an Executive Order and two Presidential Memoranda directing relevant federal agencies to take expedited review and approval action on various infrastructure projects, including the Keystone XL and Dakota Access pipeline projects. Additionally, President Trump issued a Presidential Memorandum directing relevant federal agencies to develop a plan under which all new U.S. pipeline projects will use domestically sourced materials and equipment.

Continue Reading President Trump Issues Executive Order to Expedite Approval Process for Certain Pipelines, Other High Priority Infrastructure Projects