On June 28, 2017, the United States Court of Appeals for the Second Circuit (“Second Circuit”) affirmed a district court’s dismissal of challenges to Connecticut’s renewable energy solicitation program and Renewable Portfolio Standard (“RPS”) law.  The Second Circuit rejected arguments from the plaintiff-appellant, Allco Finance Limited (“Allco”), that the solicitation program was preempted by the Federal Power Act (“FPA”) and the Public Utility Regulatory Policies Act of 1978 (“PURPA”) and that the RPS law unduly burdens interstate commerce, in violation of the “dormant commerce clause.” Continue Reading Second Circuit Upholds Connecticut’s Renewables Solicitation Program and RPS Against Preemption, Dormant Commerce Clause Challenges

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

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

On November 1, 2016, FERC dismissed a complaint filed by the Vote Solar Initiative and the Montana Environmental Information Center (collectively, “Vote Solar”) against the Montana Public Service Commission (“Montana Commission”) alleging that the Montana Commission violated section 210 of the Public Utilities Regulatory Policies Act of 1978 (“PURPA”) by suspending NorthWestern Energy’s (“NorthWestern”) obligation to adhere to a standard rate for solar qualifying facilities (“QFs”) with a nameplate capacity between 100 kW and 3 MW. FERC dismissed the complaint on the grounds that: (i) it does not have jurisdiction to order the Montana Commission to take or not take particular actions; and (ii) Vote Solar is neither a QF nor an electric utility, and therefore is not permitted to file a petition for enforcement pursuant to section 210 of PURPA. Continue Reading FERC Dismisses Vote Solar PURPA Complaint Against Montana Commission, Citing Lack of Jurisdiction and Standing

On July 21, 2016, FERC issued a declaratory order related to a qualifying facility’s (“QF”) right to sell its capacity and energy pursuant to a legally enforceable obligation under the Public Utilities Regulatory Policies Act of 1978 (“PURPA”). Specifically, FERC held that: (1) regardless of whether a QF has previously sold its renewable energy credits (“RECs”) under a separate contract, a QF has the right to sell its output pursuant to a legally enforceable obligation (“LEO”), and (2) regardless of whether a QF has participated in a request for proposal, a QF has the right to obtain a LEO.

Continue Reading FERC Issues Declaratory Order on QFs’ PURPA Rights

On May 6, 2016, Oklahoma Municipal Power Authority (“OMPA”) submitted a request to FERC seeking to take over its members’ mandatory purchase obligation under the Public Utility Regulatory Policies Act of 1978 (“PURPA”). OMPA is a full-requirements provider for 42 municipalities in the State of Oklahoma. OMPA submitted its request under Section 210 of PURPA. Continue Reading Oklahoma Municipal Power Authority Requests to Take On PURPA Mandatory Purchase Obligations on Behalf of its Members