On December 6 and December 18, 2018, various environmental groups filed a motion and comments with FERC requesting that Commissioner Bernard McNamee recuse himself from FERC’s two ongoing grid resiliency proceedings.  The groups argued that because Commissioner McNamee represented the Department of Energy (“DOE”) when the agency proposed compensating “fuel-secure” units for their contribution to the resilience of the electrical grid, recusal is appropriate because he is already a party to the proceedings, and in any event, may have already “prejudged” central matters of law and fact relevant to those dockets. Continue Reading Advocates Request Recusal of Newly-Confirmed Commissioner McNamee from Grid Resiliency Proceedings

On December 7, 2018, the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) affirmed the United States District Court for the Northern District of Ohio’s (“District Court”) granting of a preliminary injunction to Nexus Gas Transmission, LLC (“Nexus”).  The preliminary injunction will allow Nexus to exercise the right of eminent domain under the Natural Gas Act (“NGA”) to build an interstate natural gas pipeline through parts of Ohio and Michigan.  The Sixth Circuit held that the District Court did not abuse its discretion in balancing the preliminary injunction factors and in refusing to allow an evidentiary hearing on the issue. Continue Reading Sixth Circuit Affirms Preliminary Injunction, Enabling Nexus Pipeline to Exercise Right of Eminent Domain for Pipeline Construction

On November 27, 2018, the Senate Committee on Energy and Natural Resources (“ENR Committee”) advanced FERC nominee Bernard McNamee to a full vote on the Senate floor.  The ENR Committee furthered Mr. McNamee’s nomination with a bipartisan vote of 13-10, with one Democrat joining the entire Republican majority on the ENR Committee.  If confirmed by the full Senate, Mr. McNamee will join current FERC Commissioners Cheryl A. LaFleur, Richard Glick, Kevin McIntyre, and Chairman Neil Chatterjee. Continue Reading Senate Committee Advances FERC Appointee Bernard McNamee to Confirmation Vote

On November 15, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to implement Public Law No. 115-247, which amended section 203 of the Federal Power Act (“FPA”) to clarify that FERC authorization is only required for mergers or consolidations valued at more than $10 million.  In addition, in accordance with the new law’s requirements, FERC proposes that transactions that are valued at $10 million or less, but more than $1 million, would only be subject to a notification requirement.

Continue Reading FERC Issues NOPR Implementing Changes to FPA Section 203

On November 15, 2018, Bernard L. McNamee, who has been nominated to fill the vacancy left by former FERC Commissioner Robert Powelson, testified before the Senate Committee on Energy and Natural Resources (“Committee”).  Currently, Mr. McNamee heads the Department of Energy’s (“DOE”) Office of Policy. Continue Reading FERC Nominee Bernard McNamee Testifies Before Senate Committee on Energy & Natural Resources

On November 5, 2018, the American Wind Energy Association and the Wind Coalition (together, the “Wind Developers”) filed a complaint against Southwest Power Pool, Inc. (“SPP”) regarding SPP’s Bylaws and Membership Agreement.  Specifically, the Wind Developers object to the sections of the Bylaws and Membership Agreement which impose financial obligations (“exit fees”) on independent power producers (“IPPs”), other comparable non-transmission owners (“non-TOs”), and non-load-serving entities (“non-LSEs”).  The Wind Developers argue that the exit fee violates cost causation principles, may pose a barrier to entry into SPP to vote on critical issues, directly affects jurisdictional rates, and that therefore, the exit fee is unjust, unreasonable, and unduly discriminatory. Continue Reading Wind Developers File Complaint Against SPP Exit Fee for IPPs, non-TOs, and non-LSEs

On October 29, 2018, FERC approved the California Independent System Operator Corp.’s (“CAISO”) tariff revisions related to its Energy Imbalance Market (“EIM”) bid adders, which reflect EIM participating resources’ costs to comply with the California Air Resources Board’s (“CARB”) greenhouse gas (“GHG”) regulations.  Specifically, FERC accepted CAISO’s proposal to limit the hourly megawatt quantity included in an EIM bid adder to the range between the EIM resource’s base schedule and its effective upper economic bid for that hour. Continue Reading FERC Approves Limit to Hourly MW Quantity Included in CAISO EIM GHG Bid Adders

On October 18, 2018, FERC denied several motions to stay an order issued on September 10, 2018, which invoked FERC’s rarely used authority under section 31 of the Federal Power Act to revoke the license for the existing 4.8-Megawatt Edenville Project No. 10808 (“Edenville Project”), located on the Tobacco and Tittabawassee Rivers in Gladwin and Midland Counties, Michigan.  Motions to stay FERC’s revocation order were filed by licensee Boyce Hydro Power, LLC’s (“Boyce Hydro”), Sanford Lake Preservation Association, Wixom Lake Association, and the Gladwin County Board of District Commissioner (together, the “Lake Associations”).  FERC denied the motion to stay because Boyce Hydro and the Lake Associations did not show that they would suffer irreparable non-economic harm if the stay were not in place.  FERC also held that the stay did not violate the public interest. Continue Reading FERC Denies Stay of Hydro Project License Termination

On October 16, 2018, FERC proposed a new method to determine whether a utility’s return on equity (“ROE”) remains just and reasonable under section 206 of the Federal Power Act (“FPA”).  Specifically, FERC discussed three additional methods, along with the well-known and traditionally used Discounted Cash Flow (“DCF”) analysis, and proposed to average the results to come to an equitable ROE.  This new method will apply to successive complaints filed against the New England Transmission Owners (“NETOs”), regarding the justness and reasonableness of their existing ROE.  Briefs related to this proposal are due on December 17, 2018.  Continue Reading FERC Proposes Change in ROE Methodology, Directs Briefing

On October 11, 2018, twenty-six pipelines submitted filings in compliance with Order No. 849 in response to a directive from FERC concerning the effect of reduced corporate income taxes on pipelines. Order No. 849 established a staggered filing schedule, so pipelines have between 28 and 84 days to submit “FERC Form No. 501-G,” depending on how FERC assigned the pipelines. The pipelines in the first category were required to file Form No. 501-G along with other information to inform FERC and the public of the impact of the recent reduction in federal income tax rates, as well as the effect of the Commission’s policy on the collection of federal income taxes by tax pass-through entities, on their revenue requirements.  Continue Reading Natural Gas Pipelines Submit Income Tax Compliance Filings