On March 22, 2017, the U.S. District Court for the District of Columbia (“District Court”) dismissed a complaint by the Delaware Riverkeeper Network (“DRN”) alleging that its members had been deprived of constitutional due process because FERC is unable to make unbiased determinations on the issuance of natural gas pipeline certificates of public convenience and necessity (“CPCNs”). Specifically, DRN argued that because FERC’s funding mechanism requires FERC to recover its budget through a charge to regulated natural gas companies, it has a pro-industry bias. Continue Reading Federal District Court Dismisses Suit Accusing FERC of Pro-Industry Bias

On March 10, 2017, FERC Secretary Kimberly D. Bose (“Secretary Bose”) issued a notice that East Kentucky Power Cooperative, Inc.’s (“EKPC”) application to terminate its requirement pursuant to the Public Utility Regulatory Policies Act of 1978 (“PURPA”) to purchase electricity from qualifying facilities was deemed denied without prejudice due to FERC’s lack of quorum (see February 21, 2017 edition of the WER). Continue Reading EKPC’s Application Requesting FERC Terminate PURPA PPA Requirement Deemed Denied Due to Lack of Quorum

According to various reports, President Donald Trump plans to appoint Kevin McIntyre as FERC Chairman, and Neil Chatterjee and Rob Powelson as FERC Commissioners, to fill the three vacant Commissioner seats at FERC. All three potential appointees are Republicans, whereas the current Commissioners—Acting Chairman Cheryl LaFleur and Commissioner Collette Honorable—are Democrats. Continue Reading Reports Suggest President Trump Plans to Appoint McIntyre as FERC Chairman, Chatterjee and Powelson as FERC Commissioners

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 January 20, 2017, President Donald Trump asked the heads of executive departments and agencies temporarily to refrain from sending regulations to the Office of the Federal Register (“OFR”), withdraw regulations that have been sent to the OFR but have not yet published in the Federal Register, and postpone certain regulations that have been published in the Federal Register but have not taken effect.  In addition, on January 30, 2017, President Trump ordered executive departments and agencies to identify at least two existing regulations to be repealed for every new regulation proposed for notice and comment or otherwise promulgated (“January 30 Executive Order”).  In a guidance memorandum released February 2, 2017, the Office of Management and Budget (“OMB”) clarified, among other things, that the January 30 Executive Order does not apply to independent agencies such as FERC. Continue Reading President Trump Asks Agencies to Freeze Regulations, Orders Agencies to Repeal Two Regulations for Every New Regulation Promulgated

On January 19, 2017, FERC approved Reliability Standard BAL-002-2, Disturbance Control Standard—Contingency Reserve for Recovery from a Balancing Contingency Event, which is designed to “ensure that balancing authorities and reserve sharing groups balance resources and demand and return their Area Control Error to defined values following a Reportable Balancing Contingency Event.” In doing so, FERC also directed the North American Electric Reliability Corporation (“NERC”) to: (1) collect and report on data regarding additional energy losses following Reportable Balancing Contingency Events during the Contingency Reserve Restoration Period; and (2) study and report on reliability risks associated with energy losses above the most severe single contingency that do not cause energy emergencies. Continue Reading FERC Approves Disturbance Control Standard for Balancing Authorities and Reserve Sharing Groups

On January 9, 2017, FERC approved ISO New England Inc.’s (“ISO-NE”) proposed revisions to its Transmission, Markets and Services Tariff (“Tariff”) to change the source of natural gas prices used in calculating the daily energy market offer threshold for Import Capacity Resources, the Peak Energy Rent Strike Price, and the Forward Reserve Threshold Price under ISO-NE’s Tariff. In doing so, FERC found that ISO-NE’s proposal to calculate these thresholds using the Intercontinental Exchange’s (“ICE”) AGT-CG (Non-G) hub instead of ICE’s AGT-CG hub was just and reasonable because it changes the natural gas price index from one that is rarely liquid to one that is reliably liquid and satisfies FERC’s requirements for using price indices in tariffs. Continue Reading ISO-NE Modifies Natural Gas Price Source Used to Calculate Market Thresholds

On December 30, 2016, FERC accepted the California Independent System Operator Corporation’s (“CAISO”) proposed revisions to the definition of “Load Serving Entity” under its tariff. In particular, CAISO’s proposed tariff revisions seek to add a new class of end user Load Serving Entities that: (1) are the ultimate consumers of electricity; (2) have legal authority to serve load through the purchase of energy from an entity that is not a Load Serving Entity; and (3) have exercised their right to purchase electricity from a party that is not serving as the Load Serving Entity for the transaction. Continue Reading FERC Approves Revised Definition of “Load Serving Entity” in CAISO

On December 5, 2016, the U.S. Commodity Futures Trading Commission (“CFTC”) reproposed regulations implementing limits on speculative futures and swaps positions (“Reproposal”). Notably, in the Reproposal, the CFTC: (1) proposes limits on speculative positions in 25 physical commodity futures contracts and their “economically equivalent” futures, options, and swaps; (2) proposes numerous adjustments to the bona fide hedging position definition; and (3) proposes to allow exchanges to recognize non-enumerated bona fide hedging positions and certain enumerated anticipatory hedge positions, and to grant spread exemptions. Continue Reading CFTC Reproposes Position Limits Rule