On July 13, 2017, President Donald Trump announced his intention to nominate Kevin McIntyre of Virginia to serve as a FERC Commissioner for the term expiring June 30, 2018, and an additional term expiring June 30, 2023. President Trump announced further that upon confirmation by the United States Senate, Mr. McIntyre will be designated Chairman of FERC. According to the White House press release announcing the intended nomination, Mr. McIntyre has spent most of his nearly 30-year legal career in private practice. Continue Reading President Trump Intends to Nominate Kevin McIntyre as FERC Commissioner and Designate as Chairman
On June 28, 2017, the United States Court of Appeals for the Second Circuit (“Second Circuit”) affirmed a district court’s dismissal of challenges to Connecticut’s renewable energy solicitation program and Renewable Portfolio Standard (“RPS”) law. The Second Circuit rejected arguments from the plaintiff-appellant, Allco Finance Limited (“Allco”), that the solicitation program was preempted by the Federal Power Act (“FPA”) and the Public Utility Regulatory Policies Act of 1978 (“PURPA”) and that the RPS law unduly burdens interstate commerce, in violation of the “dormant commerce clause.” Continue Reading Second Circuit Upholds Connecticut’s Renewables Solicitation Program and RPS Against Preemption, Dormant Commerce Clause Challenges
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.
On June 20, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “the court”) rejected petitions for review challenging FERC’s approval of capacity market rules set by the PJM Interconnection, LLC (“PJM”) in 2014. The D.C. Circuit held that FERC’s approval of the rules was adequately explained and within its statutory authority under the Federal Power Act. In particular, the D.C. Circuit rejected assertions from various environmental, clean energy, and public utility petitioners that the new capacity market rules unduly discriminated against variable energy resources. Continue Reading D.C. Circuit Rejects Challenges to PJM’s Capacity Market Rules, Including Year-Round Requirement Impacting Renewable Energy Generators
On June 8, 2017, the California Independent System Operator (“CAISO”) released the draft final proposal of Phase 2 of its energy storage and distributed energy resources (“ESDER”) initiative. The aim of the proposal is to lower the barrier to entry and market participation for various transmission grid-connected energy storage and distribution-connected resources. “Integrating these resources,” the proposal states, “will help lower carbon emissions and add operational flexibility.” Continue Reading CAISO Issues Draft Final Proposal on Energy Storage and Distributed Energy Resources
On June 5, 2017, Advanced Energy Economy (“Advanced”), a national trade association representing organizations within the energy efficiency, demand response, and other advanced energy industry sectors, filed a petition for a declaratory order with FERC. Among other things, the petition requests that FERC assert exclusive jurisdiction over how Energy Efficiency Resources (“EERs”) can participate in markets operated by Regional Transmission Organizations and Independent System Operators (“RTOs/ISOs”). In particular, Advanced highlights a recent proposal from PJM Interconnection, L.L.C. (“PJM”) to initiate a stakeholder process to ultimately grant state regulators the authority to bar, restrict, or otherwise condition EER participation in PJM’s capacity market. The petition, filed while FERC still lacks a quorum to take action, came just days before the Kentucky Public Service Commission (“KYPSC”) issued an order restricting participation of EERs in PJM wholesale markets. Continue Reading AEE Requests Declaratory Rulings on Federal Preemption for Energy Efficiency Resources in FERC-Regulated Markets
On May 19, 2017, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued a decision in which it held in part that FERC erred by determining that it lacked authority under the Federal Power Act (“FPA”) to order a non-jurisdictional entity to repay refunds that it should not have received. The D.C. Circuit made clear that although the FPA prohibits FERC from ordering a non-jurisdictional entity to provide a refund to another entity, FPA Section 309 vests FERC with broad remedial authority, including authority to grant recoupment when it is justified and FERC otherwise has jurisdiction over the disputed funds. Continue Reading D.C. Circuit Holds that FERC has Authority to Order BPA to Forfeit Inappropriate Refunds
On May 18, 2017, ISO New England Inc. (“ISO-NE”) and the New England Power Pool Participants Committee (together with ISO-NE, the “Filing Parties”) proposed revisions to the ISO-NE/New York Independent System Operator, Inc. (“NYISO”) Coordination Agreement (the “NE/NY Coordination Agreement”) and the term sheet indicating the price of emergency energy sold to Hydro-Quebec Transenergie (“HQTE”) by ISO-NE (the “HQTE EE Pricing Schedule”) to reflect changes that were implemented to ISO-NE’s Market Rule regarding emergency energy purchases and sales. The NE/NY Coordination Agreement specifies, among other things, the terms and conditions under which a control area will provide energy to the neighboring control area during emergency conditions. These terms and conditions include the price one control area will charge the other for providing emergency energy. Continue Reading ISO-NE Proposes Modifications to Pricing for Sales of Emergency Energy to NYISO, Hydro Quebec
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.
On April 28, 2017, Commissioner Colette Honorable announced that she will not pursue another term as a Commissioner at FERC after her current term expires June 30, 2017. Commissioner Honorable is serving her first term with the Commission. After she was appointed by President Obama, she was confirmed by the U.S. Senate on December 16, 2014 (see December 19, 2014 edition of the WER). Prior to joining FERC, Commissioner Honorable was the Chairman of the Arkansas Public Service Commission and also was president of the National Association of Regulatory Utility Commissioners. Continue Reading Commissioner Honorable Announces She Will Not Pursue Another Term