On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) vacated and remanded a set of FERC orders that revised the minimum offer price rule (“MOPR”) of PJM Interconnection, L.L.C. (“PJM”).  The D.C. Circuit held that FERC exceeded its role under Federal Power Act (“FPA”) Section 205 by imposing changes that amounted to an “entirely new rate scheme” for PJM. Continue Reading D.C. Circuit Rejects FERC’s use of FPA Section 205 to Revise PJM Minimum Offer Price Rule

On June 30, 2017, the North Carolina General Assembly ratified compromise legislation that modernizes the state’s solar energy rules but also includes an 18-month moratorium on wind energy projects in the state.  The bill now awaits Governor Roy Cooper’s signature or veto. Continue Reading North Carolina Passes Solar Reform Bill with an 18-Month Wind Moratorium

On June 30, 2017, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied a petition by Seminole Electric Cooperative, Inc. (“Seminole”) seeking to increase the refund amount FERC ordered Florida Power & Light Company (“FP&L”) to pay Seminole for overcharges related to energy imbalance services.  Seminole raised two challenges to FERC’s refund order: (1) FERC improperly restricted the refund period to twenty-four months, as opposed to the full four and a half year period for which FP&L overcharged Seminole for energy imbalance services; and (2) FERC failed to require that energy imbalance charges be apportioned among the three tiers established in Schedule 4 of FP&L’s Tariff. Continue Reading D.C. Circuit Rejects Seminole Electric Cooperative’s Appeal for Additional Refunds

On June 30, 2017, the Massachusetts Department of Energy Resources (“DOER”) informed the Massachusetts Legislature of its adoption of a 200 MWh energy storage target for electric distribution companies (“EDCs”) to procure “viable and cost-effective energy storage systems” within the Commonwealth of Massachusetts.  DOER specified that the target is to be achieved by January 1, 2020, and would permit EDCs to identify the most cost-effective applications and the best locations for energy storage deployment, including both in front of the meter and behind the meter applications. Continue Reading Massachusetts Announces 200 MWh Energy Storage Procurement Target

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 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 21, 2017, the United States Circuit Court of Appeals for the Sixth Circuit (“Sixth Circuit”) upheld FERC’s determination that American Transmission Systems (“ATS”) and Duke Energy Ohio, Inc. (“Duke”) are not required to pay for projects that the Midcontinent Independent System Operator, Inc. (“MISO”) approved after ATS and Duke announced separately that they would be withdrawing from MISO, but prior to their actual departures.

Continue Reading Sixth Circuit Holds that Departing Transmission Owners are Not Responsible for MISO Multi-Value Project Costs

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 20, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “the court”) rejected petitions for review challenging FERC’s approval of capacity market rules set by the PJM Interconnection, LLC (“PJM”) in 2014.  The D.C. Circuit held that FERC’s approval of the rules was adequately explained and within its statutory authority under the Federal Power Act.  In particular, the D.C. Circuit rejected assertions from various environmental, clean energy, and public utility petitioners that the new capacity market rules unduly discriminated against variable energy resources. Continue Reading D.C. Circuit Rejects Challenges to PJM’s Capacity Market Rules, Including Year-Round Requirement Impacting Renewable Energy Generators

On June 22, 2017, both chambers of the New York State Legislature unanimously passed legislation—Senate Bill 5190 and Assembly Bill 6571 (collectively, the “Bill”)—which would require the New York Public Service Commission (“NYPSC”) to commence a proceeding to establish an Energy Storage Deployment Program for the State of New York within ninety days of the Bill’s effective date.  The Bill would also require that, no later than January 1, 2018, the NYPSC establish a target for the installation of energy storage systems through 2030, and programs that will enable the State of New York to meet those targets.  The Bill now heads to Governor Andrew Cuomo for signature. Continue Reading New York Legislature Unanimously Passes Bill Directing NYPSC to Establish Energy Storage Target by January 1, 2018