On June 5, 2017, the U.S. Supreme Court (“Supreme Court”) held that 28 U.S.C. § 2462’s (“Section 2462”) five-year limitations period for the enforcement of penalties applies to claims for disgorgement brought by the U.S. Securities and Exchange Commission (“SEC”).  As a result, additional federal agencies, including FERC, may similarly be limited to seeking disgorgement within five years of the date the claim accrued. Continue Reading Supreme Court Ruling in SEC Case Could Affect FERC Enforcement Proceedings Involving Disgorgement

On June 5, 2017, Advanced Energy Economy (“Advanced”), a national trade association representing organizations within the energy efficiency, demand response, and other advanced energy industry sectors, filed a petition for a declaratory order with FERC.  Among other things, the petition requests that FERC assert exclusive jurisdiction over how Energy Efficiency Resources (“EERs”) can participate in markets operated by Regional Transmission Organizations and Independent System Operators (“RTOs/ISOs”).  In particular, Advanced highlights a recent proposal from PJM Interconnection, L.L.C. (“PJM”) to initiate a stakeholder process to ultimately grant state regulators the authority to bar, restrict, or otherwise condition EER participation in PJM’s capacity market.  The petition, filed while FERC still lacks a quorum to take action, came just days before the Kentucky Public Service Commission (“KYPSC”) issued an order restricting participation of EERs in PJM wholesale markets. Continue Reading AEE Requests Declaratory Rulings on Federal Preemption for Energy Efficiency Resources in FERC-Regulated Markets

On June 1, 2017, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied petitions for review and upheld FERC’s interpretation of a transmission agreement (the “Operation Agreement”) between the Transmission Agency of Northern California (“TANC”) and Pacific Gas and Electric Company (“PG&E”). Continue Reading D.C. Circuit Upholds FERC’s Interpretation in TANC/PG&E Contract Dispute

On June 1, 2017, the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed LSP Transmission Holdings, LLC’s and LS Power Transmission, LLC’s (collectively, “LS Power”) challenges to Southwest Power Pool, Inc.’s (“SPP”) tariff revisions regarding the criteria SPP considers in its Order No. 1000 planning process to select developers for transmission projects identified for cost allocation through the Order No. 1000 planning process.  In doing so, the D.C. Circuit held that LS Power lacked standing to challenge FERC’s orders approving SPP’s tariff revisions because LS Power has no active bids to build a transmission project, nor has LS Power had a bid rejected by SPP. Continue Reading D.C. Circuit Dismisses Challenge to FERC’s Approval of SPP’s Order No. 1000 Tariff Revisions

On May 25, 2017, Federal Energy Regulatory Commission nominees Neil Chatterjee and Robert Powelson testified before the Senate Energy and Natural Resources Committee, marking their first joint appearance before the Committee since their nomination by President Trump (see May 9, 2017 edition of the WER). Continue Reading FERC Nominees Chatterjee and Powelson Testify before Senate Energy Committee

On May 23, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) held that FERC did not violate the Clean Water Act (“CWA”) by issuing Transcontinental Gas Pipe Line Company, LLC (“Transco”) a certificate of public convenience and necessity (“CPCN”) before the state of Pennsylvania had issued a CWA § 401 water quality certification that must be obtained by a CPCN applicant prior to FERC approving any activity that may result in a discharge into navigable waters.  In doing so, the D.C. Circuit held that FERC’s issuance of a CPCN did not violate the CWA because FERC’s CPCN order expressly conditioned FERC’s approval of potential discharge activity on Transco first obtaining the requisite CWA § 401 certification and because the CPCN itself does not authorize any potential discharge activity.  Continue Reading D.C. Circuit Rules that Conditional Certificate Order Did Not Authorize Discharges under Clean Water Act

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

In an unpublished opinion issued May 12, 2017, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) affirmed the dismissal of a civil suit alleging that a JPMorgan Chase & Co. subsidiary—J.P. Morgan Ventures Energy Corporation (“JPM Ventures”)—fraudulently manipulated rates in the California wholesale electricity market in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Continue Reading Ninth Circuit Dismisses RICO Class Action Against Power Marketer on Filed-Rate Doctrine Grounds

On May 12, 2017, PJM Interconnection, L.L.C. (“PJM”) submitted to FERC revisions to the PJM Open Access Transmission Tariff (“OATT”), Attachment K-Appendix and the PJM Amended and Restated Operating Agreement, Schedule 1 to implement changes to the Operating Reserve demand curves (“ORDC”) that are embedded in PJM’s real-time market clearing engines.  According to PJM, the proposed changes to the ORDC are necessary to set clearing prices relative to the degree of severity of a reserve shortage. Continue Reading PJM Proposes Changes to Operating Reserve Demand Curves to Reduce Reserve Shortage Pricing

On May 18, 2017, ISO New England Inc. (“ISO-NE”) and the New England Power Pool Participants Committee (together with ISO-NE, the “Filing Parties”) proposed revisions to the ISO-NE/New York Independent System Operator, Inc. (“NYISO”) Coordination Agreement (the “NE/NY Coordination Agreement”) and the term sheet indicating the price of emergency energy sold to Hydro-Quebec Transenergie (“HQTE”) by ISO-NE (the “HQTE EE Pricing Schedule”) to reflect changes that were implemented to ISO-NE’s Market Rule regarding emergency energy purchases and sales.  The NE/NY Coordination Agreement specifies, among other things, the terms and conditions under which a control area will provide energy to the neighboring control area during emergency conditions.  These terms and conditions include the price one control area will charge the other for providing emergency energy.  Continue Reading ISO-NE Proposes Modifications to Pricing for Sales of Emergency Energy to NYISO, Hydro Quebec