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

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