On June 23, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) held that Millennium Pipeline Company, L.L.C. (“Millennium”) lacked standing to challenge whether the New York State Department of Environmental Conservation (“Department”) had unlawfully delayed issuing a Clean Water Act (“CWA”) § 401 water quality certificate for Millennium’s pipeline project by failing to act on Millennium’s application within the one year statutory period.  In doing so, the D.C. Circuit stated that even if the Department had unlawfully delayed issuing the CWA § 401 certificate, the Department’s delay would operate as a waiver of the certification requirement.  As a result, the D.C. Circuit explained that Millennium could ask FERC to determine whether the Department waived the CWA § 401 certification requirement, and if so, whether FERC would authorize Millennium to begin construction of its pipeline project. Continue Reading D.C. Circuit Rules Waiver of CWA Certification Requirement for Pipeline Project Does Not Create Standing for Pipeline

On June 7, 2017, Senators Tim Kaine (D-VA) and Mark Warner (D-VA) introduced a bill in the U.S. Senate that would, among other things, revise the Natural Gas Act (“NGA”) to require FERC to (1) review two proposed interstate pipeline projects together under the National Environmental Policy Act of 1969 (“NEPA”) if the two pipelines are proposed within one year of each other and would be within 100 miles apart and (2) ensure that open houses regarding a proposed pipeline occur in each county in which the pipeline would be located.  In addition, on June 13, 2017, Representative H. Morgan Griffith (R-VA) introduced a similar bill in the U.S. House Committee on Energy and Commerce. Continue Reading New Legislation Introduced Regarding Review of Proposed Natural Gas Pipelines

On June 8, 2017, the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) dismissed Total Gas & Power N.A., Inc., Aaron Hall, and Therese Tran’s (collectively, “Total”) arguments that the Natural Gas Act (“NGA”) provides federal district courts – not FERC – with exclusive authority to adjudicate violations of the NGA and assess civil penalties, finding that Total’s claims were unripe because FERC neither has determined that Total has violated the NGA nor assessed any civil penalties.  The Fifth Circuit also dismissed Total’s arguments that FERC’s procedures for appointing Administrative Law Judges (“ALJs”) and conducting hearings are unconstitutional.  Continue Reading Fifth Circuit Dismisses Total’s Arguments Against FERC’s NGA Enforcement Authority as Unripe

On June 5, 2017, the U.S. Supreme Court (“Supreme Court”) held that 28 U.S.C. § 2462’s (“Section 2462”) five-year limitations period for the enforcement of penalties applies to claims for disgorgement brought by the U.S. Securities and Exchange Commission (“SEC”).  As a result, additional federal agencies, including FERC, may similarly be limited to seeking disgorgement within five years of the date the claim accrued. Continue Reading Supreme Court Ruling in SEC Case Could Affect FERC Enforcement Proceedings Involving Disgorgement

On June 1, 2017, the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed LSP Transmission Holdings, LLC’s and LS Power Transmission, LLC’s (collectively, “LS Power”) challenges to Southwest Power Pool, Inc.’s (“SPP”) tariff revisions regarding the criteria SPP considers in its Order No. 1000 planning process to select developers for transmission projects identified for cost allocation through the Order No. 1000 planning process.  In doing so, the D.C. Circuit held that LS Power lacked standing to challenge FERC’s orders approving SPP’s tariff revisions because LS Power has no active bids to build a transmission project, nor has LS Power had a bid rejected by SPP. Continue Reading D.C. Circuit Dismisses Challenge to FERC’s Approval of SPP’s Order No. 1000 Tariff Revisions

On May 23, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) held that FERC did not violate the Clean Water Act (“CWA”) by issuing Transcontinental Gas Pipe Line Company, LLC (“Transco”) a certificate of public convenience and necessity (“CPCN”) before the state of Pennsylvania had issued a CWA § 401 water quality certification that must be obtained by a CPCN applicant prior to FERC approving any activity that may result in a discharge into navigable waters.  In doing so, the D.C. Circuit held that FERC’s issuance of a CPCN did not violate the CWA because FERC’s CPCN order expressly conditioned FERC’s approval of potential discharge activity on Transco first obtaining the requisite CWA § 401 certification and because the CPCN itself does not authorize any potential discharge activity.  Continue Reading D.C. Circuit Rules that Conditional Certificate Order Did Not Authorize Discharges under Clean Water Act

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 10, 2017, FERC issued notice that FERC staff will convene a technical conference on June 29, 2017 on natural gas index liquidity and transparency.  Specifically, the purpose of the technical conference is to (1) understand the state of liquidity in physical natural gas markets; (2) explore trends in physical gas trading and price reporting and how the use of natural gas indices have evolved over time; (3) obtain industry views on the confidence in natural gas indices and price formation; and (4) consider whether there is a need to improve natural gas market liquidity and price reporting and, if so, how. Continue Reading FERC to Convene Technical Conference on Natural Gas Index Liquidity and Transparency

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

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