Photo of Elizabeth McCormick

On September 30, 2019, FERC accepted in part and rejected in part, the California Independent System Operator’s (“CAISO”) July 2, 2019 proposed revisions (“July 2 Filing”)  to its open access transmission tariff (“Tariff”) to include three unrelated mitigation measures designed to facilitate the participation of fast-ramping hydroelectric resources in the western energy imbalance market (“EIM”). FERC accepted two aspects of CAISO’s proposal related to the mitigation timing (the “Mitigation Timing” proposal and a hydro default energy bid (“DEB”) proposal, referred to as the “Hydro DEB” proposal), but rejected CAISO’s proposal to allow an EIM entity balancing authority area (“BAA”) in the real-time market to limit dispatch of incremental net exports under certain conditions (the “Net Export Limit” proposal).
Continue Reading

On September 16, 2019, FERC accepted revisions to the PJM Interconnection, L.L.C. (“PJM”) tariff that: (1) establish a process by which existing capacity sellers can request removal of their capacity resource’s status; and (2) revise the process for must-offer exceptions due to an existing seller’s physical inability to meet its capacity requirements. The changes clarify how existing capacity resources may, under certain circumstances, effectively elect to “opt out” of PJM’s annual capacity auctions (termed Based Residual Auctions, or “BRAs”).
Continue Reading

On September 20, 2019, FERC issued an original license to McMahan Hydroelectric, LLC (“McMahan”) for the 600-kilowatt Bynum Hydroelectric Project, located on the Haw River in Chatham County, North Carolina. In its licensing order, FERC held that North Carolina waived authority under section 401 of the Clean Water Act (“CWA”) by failing to act within one year of receiving McMahan’s request for water quality certification under section 401. In a separate statement, Commissioner Glick—while agreeing with the conclusion that North Carolina had waived section 401 authority—dissented in the Commission’s rationale for finding waiver.
Continue Reading

On September 18, 2019, the First Circuit Court of Appeals (“First Circuit”) affirmed the U.S. District Court for the District of Massachusetts’s (“District Court”) ruling that dismissed twelve New England retail electricity customers’ (“Plaintiffs”) federal antitrust and state-law claims against Eversource Energy and Avangrid, Inc (“Defendants”).  Initially, Plaintiffs filed their lawsuit in District Court, claiming Defendants violated section 2 of the Sherman Act, 15 U.S.C. § 2, as well as various state antitrust and consumer-protection laws (see December 12, 2017 edition of the WER).  The District Court dismissed Plaintiffs’ claims, finding that they were barred by the filed-rate doctrine and, alternatively, that the Plaintiffs lacked antitrust standing and failed to plausibly allege a monopolization claim under the Sherman Act.  On review, the First Circuit agreed with the District Court that the filed-rate doctrine barred Plaintiffs’ federal and state law claims.  Accordingly, the First Circuit found no need to reach the District Court’s alternative grounds for dismissal and dismissed Plaintiffs’ federal and state claims pursuant to the filed-rate doctrine.

Continue Reading

On September 4, 2019, the North American Electric Reliability Corporation (“NERC”) published a Lessons Learned report (“Report”) analyzing a March 5, 2019 cybersecurity incident that caused brief communications outages across several states.  NERC also provided guidance on how to avoid the firewall firmware vulnerabilities that made the cybersecurity incident possible.
Continue Reading

On August 27, 2019, FERC issued a final rule amending its regulations at 18 C.F.R. § 385.2001(a) to require that all physical filings and submissions to be delivered to FERC, other than those sent via the U.S. Postal Service (“USPS”), are to be sent to FERC’s off-site security screening facility in Rockville, Maryland.  FERC’s rule makes no changes to electronic filings submitted through its online system.  The final rule was published in the Federal Register on September 4 and will go into effect 60 days later, or on November 4, 2019.
Continue Reading

On August 22, 2019, FERC dismissed as premature Alternative Transmission Inc.’s (“ATI”) petition for declaratory order (“Petition”) asking FERC to declare that ATI’s alternative transmission facilities and services are subject to FERC’s jurisdiction and that ATI, as the owner and operator of the facilities, will be a public utility under the Federal Power Act (“FPA”).
Continue Reading

On August 9, 2019, the Federal Energy Regulatory Commission (“FERC”) ruled that hundreds of millions of dollars of ongoing and future investments by Chelan County Public Utility District (“Chelan PUD”) in the Rock Island Hydroelectric Project qualified as early-action investments under the new section 36(c) of the Federal Power Act (“FPA”).  Accordingly, FERC will consider these significant investments when the Rock Island Project undergoes relicensing of its FERC license prior to the 2028 expiration of the license.

Continue Reading

On July 23, 2019, FERC Chairman Neil Chatterjee announced that the Commission is establishing a new Division of LNG Facility Review & Inspection (“DLNG”), within its Office of Energy Projects, to handle the growing number of complex applications to site, build, and operate liquified natural gas export terminals.  Prior to the establishment of this division,

On July 18, 2019, FERC issued an order denying in part and granting in part a request for clarification or rehearing of Order No. 856, which revised its regulations relating to interlocking officers and directors.  FERC provided additional clarification and explanation, but declined to make any further revisions or to allow rehearing.
Continue Reading