Since Commissioner Norman Bay’s departure from FERC on February 3, 2017 created the absence of the requisite three-Commissioner quorum necessary for the Commission to vote (see January 31, 2017 edition of the WER), FERC Staff has continued to act on certain pending matters under the authority delegated to it by the Commission on February 3, 2017 (see February 3, 2017 Troutman Sanders Alert). Continue Reading FERC Staff Acting Under Delegated Authority in the Absence of Three-Commissioner Quorum
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2017, President Trump ordered executive departments and agencies to identify at least two existing regulations to be repealed for every new regulation proposed for notice and comment or otherwise promulgated (“January 30 Executive Order”).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 February 1, 2017 FERC issued an order approving a settlement between its Office of Enforcement (“Enforcement”) and Houston-based power marketer GDF SUEZ Energy Marketing NA, Inc. (“GSEMNA”) following an investigation into whether GSEMNA violated FERC’s anti-manipulation regulations from May 2011 to September 2013. As part of the agreement, GSEMNA neither admitted to nor denied the alleged market manipulation violations, but agreed to be subject to monitoring and annual compliance reporting as well as to pay a disgorgement of $40.8 million in unjust profits and a civil penalty of $41 million to the U.S. Treasury. Continue Reading FERC and Power Marketer GSEMNA Reach $80 Million Enforcement Settlement over Alleged Market Manipulation
On January 24, 2017, President Donald Trump issued an Executive Order and two Presidential Memoranda directing relevant federal agencies to take expedited review and approval action on various infrastructure projects, including the Keystone XL and Dakota Access pipeline projects. Additionally, President Trump issued a Presidential Memorandum directing relevant federal agencies to develop a plan under which all new U.S. pipeline projects will use domestically sourced materials and equipment.
On January 26, 2017, President Trump appointed Commissioner Cheryl LaFleur Acting Chairman of FERC. Acting Chairman LaFleur has been a member of the Commission since 2010, and previously served as Acting Chairman from November 2013 to July 2014, and as Chairman from July 2014 until April 2015. Continue Reading Commissioner LaFleur Appointed Acting Chairman of FERC; Commissioner Bay Resigns, Preventing Quorum Needed for FERC Action
On January 24, 2017, FERC issued an order accepting simultaneous transmission import limit (“SIL”) values for the Southwest United States from a group of transmission owners operating in the region. In the Order, FERC noted its intent to use these SIL values in evaluating updated market power analyses for the Southwest region, and also provided guidance for future filers on how the Commission expects SIL studies to be performed and reported. Continue Reading FERC Issues Order Providing Direction on Simultaneous Transmission Import Limit Studies (“SILS”); Accepts Proposed SILS Values for Southwest Region
On January 19, 2017, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing to reform approaches to real-time uplift cost allocation and transparency practices by Regional Transmission Organizations (“RTO”) and Independent System Operators (“ISO”). FERC stated that the proposed reforms to uplift cost allocation should incentivize market participants to schedule sufficient resources to satisfy the system’s real-time needs, thus avoiding RTO’s/ISO’s need to procure additional resources after the day-ahead market has cleared. Meanwhile, FERC stated that the proposed reforms to transparency practices will help market participants understand how prices reflect the actual marginal cost of serving load and the operational constraints of reliably operating the system.
On January 19, 2017, FERC denied a request from Vote Solar Initiative and the Montana Environmental Information Center (collectively, “Vote Solar”) that FERC reconsider a November 1, 2016 order (“November Order”) dismissing Vote Solar’s complaint against the Montana Public Service Commission (“Montana Commission”), alleging that the Montana Commission violated section 210 of the Public Utility Regulatory Policies Act of 1978 (“PURPA”) by altering the state’s framework for solar projects seeking to be qualifying facilities (“QFs”). In requesting reconsideration, Vote Solar alleged that FERC misconstrued its complaint as being a request for enforcement pursuant to PURPA Section 210(h) and that it was instead a request for FERC to use its remedial authority under Federal Power Act (“FPA”) section 309. In denying the request, FERC explained that the broad language of its regulations does not give FERC greater enforcement authority than the operative statute itself. FERC also reiterated the jurisdiction and standing deficiencies inherent in the complaint, and noted that many of Vote Solar’s substantive concerns were addressed in a recently issued Notice of Intent Not to Act and Declaratory Order in a similar challenge brought by a QF against the Montana Commission. Continue Reading FERC Denies Request to Reconsider Denial of PURPA Complaint by Vote Solar
As part of the ongoing legal fallout from the 2000-2001 California energy crisis, on January 9, 2017, FERC issued an order clarifying that, for purposes of that proceeding, “pricing umbrella” evidence is relevant only for contextual purposes and cannot serve as a basis for finding refund liability. In this order, FERC clarified that “pricing umbrella” evidence may be introduced solely for the purposes of providing context for FERC’s consideration, and that such evidence should not constitute the basis for finding refund liability. Continue Reading FERC Clarifies the Relevance of “Pricing Umbrella” Evidence in the California Energy Crisis Proceeding
On January 11, 2017, the United States House of Representatives (“House”) passed the Regulatory Accountability Act of 2017, which would, among other things, end the Chevron doctrine of requiring judicial deference toward administrative agencies with respect to the interpretation of statutes that the agency is charged with administering. Continue Reading House Passes Bill That Would End <em>Chevron</em> Deference