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 March 28, 2017, Dynegy Marketing and Trade, LLC and Illinois Power Marketing Company (collectively, the “Complainants”) filed a complaint against the Midcontinent Independent System Operator, Inc. (“MISO”) alleging that MISO has failed to comply with the terms of its Open Access Transmission, Energy and Operating Reserve Markets Tariff (“MISO Tariff”) with respect to resources “pseudo-tied” into PJM Interconnection, L.L.C. (“PJM”). According to the Complainants, MISO has been assessing congestion and losses charges to MISO resources pseudo-tied into PJM using “Financial Schedules” in a manner that “blatantly contravenes the MISO Tariff and that results in the unjust, unreasonable, and unduly discriminatory imposition of duplicative charges.” The Complainants request that the Commission order MISO to immediately cease and desist from imposing such charges and that MISO “refund duplicative congestion and losses charges unlawfully imposed.” Continue Reading Dynegy and IPM Allege MISO Failed to Comply with Own Tariff Regarding Resources Pseudo-Tied into PJM

On December 15, 2016, FERC issued a Notice of Proposed Rulemaking (“NOPR”) in which it proposed to revise its regulations and the pro forma Large Generator Interconnection Procedures (“LGIP”) and pro forma Large Generator Interconnection Agreement (“LGIA”). According to FERC, the proposed reforms could help “improve the efficiency of processing interconnection requests for both transmission providers and interconnection customers, maintain reliability, increase energy supply, balance the needs of interconnection customers and transmission owners, and remove barriers to needed resource development.” Comments on the proposed reforms in FERC’s NOPR are due 60 days after publication of the NOPR in the Federal Register. Continue Reading FERC Proposes Generator Interconnection Changes

On November 30, 2016, FERC issued an order accepting tariff revisions filed by Public Service Company of Colorado (“PSCo”) regarding penalty charges for energy imbalance and generator imbalance services under Schedules 4 and 9 of PSCo’s open access transmission tariff (“OATT”). FERC found the revisions, which PSCo filed to address the influx of variable wind generation on its system, to provide incentives for accurate scheduling from transmission customers. Continue Reading FERC Approves PSCo Tariff Revisions Regarding Energy and Generator Imbalance Penalty Charges

On November 17, 2016, FERC issued a Notice of Proposed Rulemaking (“NOPR”) in which it proposed modifications to its pro forma interconnection agreements that would require new generating facilities to install and enable primary frequency response equipment as a condition of interconnection. FERC explained that the proposed modifications are intended to address industry-wide reliability concerns related to declining frequency response performance. Continue Reading FERC Issues NOPR Proposing to Include Primary Frequency Response Provisions in <em>Pro Forma</em> Generation Interconnection Agreements

On October 11, 2016, FERC issued an order on the refund liability of Midwest Generation, LLC (“Midwest”) for violating FERC-approved settlement agreement terms regarding reactive supply and voltage control service. Of note, although FERC approved Midwest’s total refund obligation calculation of over $3.6 million, it declined to exercise its primary jurisdiction over whether Midwest should be responsible to pay the portion of this obligation that accrued before the utility’s debts were discharged in an April 2014 bankruptcy proceeding. Instead, FERC directed Midwest to pay the refund amounts that accrued following the bankruptcy proceeding, which totaled around $1.7 million. Continue Reading FERC Declines to Exercise Primary Jurisdiction Over Midwest Generation’s Pre-Bankruptcy Refund Liability

On June 16, 2016, FERC amended its regulations to require that the North American Electric Reliability Corporation (“NERC”) provide FERC Commissioners and staff with access, on a non-public and ongoing basis, to NERC’s Transmission Availability Data System (“TADS”), the Generating Availability Data System (“GADS”), and the protection system misoperations database. While FERC explained that such access would “provide the Commission with information necessary to determine the need for new or modified Reliability Standards and to better understand NERC’s periodic reliability and adequacy assessments,” it also added that “the Commission is not precluded from using the accessed data for other statutory purposes.” Continue Reading FERC Grants Itself Access to NERC Transmission and Generation Databases

On October 29, 2015, ISO New England Inc. (“ISO-NE”) and the New England Power Pool (NEPOOL) Participants Committee (together, the “Filing Parties”) jointly submitted revised ISO-NE tariff provisions proposing three changes related to demand response and its participation in the ISO-NE wholesale markets.  Continue Reading ISO-NE and NEPOOL Seek to Delay Full Integration of Demand Response by One Year