On October 6, 2017, FERC approved the New York Independent System Operator, Inc. (“NYISO”) and PJM Interconnection, L.L.C.’s (“PJM”; together with NYISO, “RTOs”) revisions to their Joint Operating Agreement (“JOA”), and NYISO’s revisions to its Market Administration and Control Area Services Tariff (“Tariff”), that address interchange schedule and Market-to-Market (“M2M”) coordination at the ABC and JK Interfaces on the border of northern New Jersey and southeastern New York.  Specifically, FERC found that the RTOs’ proposal to implement a wheeling arrangement over a newly formed PJM-NY AC Proxy Bus and to establish an Operational Base Flow (“OBF”) over the Interfaces was just and reasonable. Continue Reading FERC Approves Plan to Address Congestion Management Between NYISO and PJM

On September 28, 2017, the U.S. District Court for the Eastern District of Pennsylvania (“District Court”) dismissed the Adorers of the Blood of Christ’s (“Plaintiffs”) claims that FERC violated the Religious Freedom Restoration Act (“RFRA”) by authorizing Transcontinental Gas Pipe Line Company, LLC (“Transco”) to take property owned by Plaintiffs to construct and operate its Atlantic Sunrise Project on Plaintiffs’ property.  In particular, the District Court held that (1) it lacked subject matter jurisdiction over Plaintiffs’ action because U.S. Courts of Appeals have exclusive jurisdiction over FERC’s decisions and issues “inhering in the controversy” and (2) Plaintiffs could not collaterally attack FERC’s certificate order authorizing Transco to take Plaintiffs’ land after Plaintiffs failed to file objections at FERC.   Continue Reading District Court Dismisses Group’s Religious Freedom Claims Involving Pipeline Project

On September 27, 2017, FERC Staff issued a draft supplemental environmental impact statement (“EIS”) for the Southeast Market Pipelines Project (“SMP Project”) in response to the U.S. Court of Appeals for the D.C. Circuit’s (“D.C. Circuit”) decision in Sierra Club v. FERC, which directed FERC to supplement its final EIS by estimating the downstream incremental greenhouse gas emissions resulting from the SMP Project and explaining whether it considers the “Social Cost of Carbon” tool useful for National Environmental Policy Act (“NEPA”) purposes.  In the draft supplemental EIS, FERC Staff (1) estimated the downstream incremental greenhouse gas emissions in Florida resulting from the project, and affirmed its conclusion in the final EIS that the SMP Project, with certain mitigation measures, will not result in significant adverse effects on the environment, and (2) explained that it does not find the “Social Cost of Carbon” tool useful for project-level NEPA analyses. Continue Reading FERC Staff Updates EIS for Pipeline Project to Address Downstream Greenhouse Gas Emissions

On September 20, 2017, FERC rejected Southwest Power Pool, Inc’s (“SPP”) Order No. 825 compliance filing that would have created a demand curve to set scarcity prices for energy shortages.  Specifically, FERC held that SPP’s establishment of a demand curve to set scarcity prices was outside the scope of Order No. 825, which required SPP to establish triggers for shortage pricing, rather than change the actual shortage pricing levels. Continue Reading FERC Rejects SPP’s Proposal to Set Scarcity Prices

On the evening of August 3, 2017, the U.S. Senate voted unanimously to confirm Neil Chatterjee and Robert Powelson, two of President Donald Trump’s nominees to join Acting Chairman Cheryl LaFleur as FERC Commissioners.  Once Chatterjee and Powelson are officially sworn in at the Commission, the quorum that has been lacking since former Chairman Norman Bay resigned earlier this year will be restored, enabling the Commission to vote on matters before it.  On September 7, 2017, the Senate Committee on Energy and Natural Resources also is scheduled to consider the nominations of Richard Glick and Kevin McIntyre—the final two nominees for the five-member Commission whose names the White House sent to the Senate in August. Continue Reading FERC Quorum Soon to Be Restored as Senate Confirms Neil Chatterjee and Robert Powelson to Serve as Commissioners

On July 20, 2017, the D.C. Court of Appeals (the “Court”) upheld the Public Service Commission of the District of Columbia’s (the “DCPSC”) approval of the merger between Exelon Corporation and Pepco Holdings, Inc. (“Applicants”).  Specifically, the Court held that the DCPSC provided adequate notice to the public of hearings on the merger and the DCPSC adequately explained how its decisions were in the public interest. Continue Reading D.C. Court of Appeals Rejects Challenges to Exelon-Pepco Merger

On July 13, 2017, FERC Office of Enforcement Staff issued a Notice of Alleged Violation against Rover Pipeline, LLC and Energy Transfer Partners, L.P. (collectively, “Rover”) alleging that Rover, in its application for a certificate of public convenience and necessity (“Application”) and subsequent filings, did not disclose all relevant information regarding the avoidance of adverse effects to a certain historic resource.  In addition, on July 12, 2017, FERC Office of Energy Projects (“OEP”) Staff issued a letter listing the activities Rover must complete prior to receiving authorization to place its proposed pipeline into service. Continue Reading FERC Staff Issues Notice of Alleged Violation Against Rover Pipeline for Misstatements in Certificate Application

On June 28, 2017, President Donald Trump announced his intention to nominate Richard Glick, a Democrat from Virginia, to be a FERC Commissioner for a five-year term ending June 30, 2022.  In addition, on June 30, 2017, Commissioner Colette Honorable announced that June 30, 2017 was her final day as a FERC Commissioner and that she would not be staying past her term (see May 9, 2017 edition of the WER). Continue Reading President Trump Plans to Nominate Richard Glick as FERC Commissioner; Commissioner Colette Honorable Departs FERC

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