On April 5, 2019, FERC accepted PJM Interconnection, L.L.C.’s (“PJM”) proposed revisions to its Open Access Transmission Tariff (“Tariff”) regarding Incremental Capacity Transfer Rights (“ICTRs”).  ICTRs are created whenever customer-funded upgrades increase transmission import capability into a Locational Deliverability Area (“LDA”) in PJM’s system.  Specifically, PJM proposed: (1) to revise the procedures to determine ICTRs; (2) to limit customers to specifying no more than three LDAs in which to determine ICTRs; and (3) to allow customers to request PJM to determine ICTRs, rather than making such determination automatic.  In accepting PJM’s proposal, FERC determined that the requested revisions balanced customer needs with the efficient processing of PJM’s interconnection queue.

Continue Reading FERC Approves PJM Tariff Revisions Regarding Incremental Capacity Transfer Rights

On April 10, 2019, FERC dismissed a complaint (“Complaint”) filed by RTO Insider LLC (“RTO Insider”) concerning the New England Power Pool Participants Committee’s (“NEPOOL”) policies prohibiting press and non-member attendance and reporting on NEPOOL stakeholder meetings.  FERC granted NEPOOL’s Motion to Dismiss, stating that it lacked jurisdiction over the NEPOOL policies because NEPOOL is not a public utility and the policies in question do not directly affect jurisdictional rates. Continue Reading FERC Dismisses Complaint Regarding NEPOOL’s Press Restrictions

On April 3, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) issued an unpublished opinion dismissing challenges to three FERC orders that granted certificates of public convenience and necessity to Transcontinental Gas Pipe Line Company, LLC (“Transco”) for three interstate pipeline projects: the Virginia Southside Expansion Project, the Dalton Expansion Project, and the Atlantic Sunrise Project (see previous reports on challenges to the Atlantic Sunrise Project in the December 12, 2017 edition of the WER and the September 12, 2018 edition of the WER).  The D.C. Circuit found that the North Carolina Utilities Commission (“NCUC”) and the New York State Public Service Commission (“NYSPSC”) lacked standing to challenge FERC’s orders because they did not show a “substantial probability” that gas transported by the Atlantic Sunrise Project would flow to their states, and did not provide any evidence of injury resulting from the Dalton Expansion and Virginia Southside Expansion Projects. Continue Reading D.C. Circuit Dismisses State Challenges to Interstate Natural Gas Pipeline Expansion Projects for Lack of Standing

On April 10, 2019, President Donald Trump issued two Executive Orders promoting new energy infrastructure by removing regulatory barriers and revising the Presidential permitting process.  Both Executive Orders aim to streamline the regulatory processes for building new energy infrastructure projects. Continue Reading President Trump Issues Executive Orders on Infrastructure

On March 29, 2019, FERC released its 2018 staff report on Critical Infrastructure Protection (“CIP”) reliability audits (“2018 CIP Report”).  The 2018 CIP Report summarizes new and previously-identified “lessons learned” from CIP audits conducted for fiscal years 2016 through 2018.  The audits evaluated whether certain users, owners, and operators of the Bulk Electric System (“BES”) – generally referred to as “registered entities” – had been complying with the FERC-approved CIP Reliability Standards during the relevant fiscal years.  FERC staff found that the audited registered entities met most of the mandatory requirements of the CIP Reliability Standards, but that there were some potential compliance infractions.  In addition, the staff summarized certain other existing practices that could improve BES security, but are not necessarily required by the CIP Reliability Standards and so therefore were only noted as recommendations in the 2018 CIP Report. Continue Reading FERC Releases 2018 CIP Reliability Standards Audit Report

On April 2, 2019, FERC affirmed its decision that the New York Department of Environmental Conversation (“NY DEC”) waived its authority to issue or deny a Clean Water Act (“CWA”) section 401 water quality permit application filed by National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (collectively, “National Fuel”) by failing to act on the application within one year of receipt.  Specifically, FERC held that an agreement between NY DEC and National Fuel to alter the receipt date of the application did not extend the CWA’s statutory one-year deadline for NY DEC to act on the application. Continue Reading FERC Affirms Finding That New York Waived CWA Authority over Pipeline Permit

On March 29, 2019, FERC issued an order accepting revisions to the Midcontinent Independent System Operator Inc.’s (“MISO”) Open Access Transmission, Energy, and Operating Reserve Markets Tariff (“Tariff”) to enhance the scheduling of Generator Planned Outages—i.e., the scheduled removal of a generator from service for inspection, maintenance, or repair.  While MISO previously managed planned outages through voluntary rescheduling, the Tariff revisions at issue: 1) impose penalties for outages scheduled during low capacity margin, high risk periods, and 2) assist generators in scheduling outages by improving the transparency and quality of generator outage information through MISO’s maintenance margin tool. In accepting MISO’s proposal, FERC concluded that these measures would address recent increases in emergency events by incenting generators to schedule planned outages in advance, and by improving MISO’s ability to coordinate these outages to avoid emergency events. Continue Reading FERC Approves MISO Revisions to Generator Planned Outage Scheduling, Subject to Condition

On April 1, 2019, FERC issued deficiency letters to the six FERC-jurisdictional ISOs and RTOs, asking for additional information about how they intend to comply with the directives of FERC Order No. 841.  The specific ISOs and RTOs are: ISO New England Inc. (“ISO-NE”); Midcontinent Independent System Operator, Inc. (“MISO”); California Independent System Operator Corporation (“CAISO”); New York Independent System Operator, Inc. (“NYISO”); PJM Interconnection, L.L.C. (“PJM”); and Southwest Power Pool, Inc. (“SPP”).  Each grid operator has thirty days to respond to the deficiency letters. Continue Reading FERC Directs RTOs and ISOs to Provide Additional Details on Storage Participation to Ensure Compliance with Order No. 841

On March 19, 2019, the U.S. Court of Appeals for the First Circuit (“First Circuit”) found that FERC’s issuance of a certificate of public convenience and necessity (“CPCN”) authorizing Algonquin Gas Transmission, LLC’s (“Algonquin”) compressor station construction in the Town of Weymouth, Massachusetts (“Weymouth”) preempted Weymouth’s later denial of a Wetland Protection Ordinance (“WPO” or “Ordinance”) permit that ultimately prohibited Algonquin from constructing a compressor station in Weymouth.  Notably, the First Circuit found that Weymouth’s WPO permit denial was preempted, in part, because FERC considered essentially the same environmental factors Weymouth relied on to deny the WPO permit. Continue Reading First Circuit Finds FERC Certificate Preempts Application of Local Ordinance to Deny Gas Pipeline Project Permit

On Monday, March 25, 2019, ISO New England, Inc. (“ISO-NE”) filed a proposal with FERC for an interim inventoried energy program that would provide incremental compensation to generation resources that store fuel onsite during winter months. ISO-NE’s filing explains that a key contributor to the region’s winter energy security concerns is its reliance on gas deliveries from the interstate pipeline network, which can become constrained during winter cold spells, and that lack of on-site fuel sources during these cold spells can lead to loss of load events.  ISO-NE seeks to reduce this concern by directly compensating generation resources for maintaining “inventoried energy,” defined as “fuel or potential energy that a resource can convert to electric energy at the ISO’s direction.”  The proposal is intended as an interim measure to complement the ISO’s ongoing efforts to develop a long-term, market-based solution to the region’s fuel security challenges.  The ISO believes that the program will contribute to the region’s winter energy security by providing incremental revenue to generation resources that store fuel on-site, reducing the amount of revenue those resources must recover through the capacity market, and decreasing the likelihood that such resources will seek to retire.  However, ISO-NE also clarified that it cannot guarantee that the program will “incent specific resources to take precise actions that improve winter energy security or deter any particular resource that would otherwise be economic from retiring.” Continue Reading ISO-NE Proposes “Inventoried Energy Program” as Interim Fuel Security Plan