On June 4, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) upheld FERC’s authorization for Tennessee Gas Pipeline Company (“Tennessee”) to build a new natural gas compressor station as part of its Broad Run Expansion Project (“the Project”).  Petitioners had argued, among other items, that FERC’s decision to approve the Project violated the National Environmental Policy Act (“NEPA”) by failing to address the reasonably foreseeable indirect environmental impacts resulting from: 1) increased gas production upstream of the Project, and 2) increased gas combustion downstream of the Project.  While the D.C. Circuit rejected the Petitioners’ arguments, it did so on jurisdictional grounds.  After concluding that FERC should have asked Tennessee for information about the upstream and downstream indirect environmental effects associated with the Project, the D.C. Circuit held that it lacked jurisdiction to conclude that FERC acted arbitrarily or capriciously because Petitioners did not argue that FERC violated NEPA by failing to seek out this information.
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On May 16, 2019, FERC’s Offices of Electric Reliability and Enforcement issued the Summer 2019 Reliability and Energy Market Assessment (“2019 Summer Assessment”), a high-level summary of anticipated reliability challenges for the upcoming operating season and prospective assessment of electric and natural gas markets.  While higher than average temperatures are predicted for the West, South, and Eastern regions of the country this summer, the report concludes that reserve margins—a measure of the projected capability of anticipated resources to serve forecasted peak load—will be adequate in all regions except the Electric Reliability Council of Texas (“ERCOT”).  The 2019 Summer Assessment also predicts high hydroelectric power production in California, continued rapid growth in battery storage, wind, and solar capacity, as well as growth in demand for natural gas driven by new LNG export capacity.
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On April 26, 2019, PPL Electric Utilities Corporation (“PPL Electric”) petitioned the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) for review of two FERC rehearing orders that replaced the cost allocation method by which PJM Interconnection, L.L.C. (“PJM”) assigns responsibility for a portion of costs for certain facilities that address stability-related reliability issues.  Specifically, FERC’s rehearing orders changed the cost allocation method used for certain facilities, including the Artificial Island Project (“Artificial Island”), that are located in the PJM region.
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On April 29, 2019, FERC accepted revisions proposed by PJM Interconnection, L.L.C. (“PJM”) to its Open Access Transmission Tariff (“Tariff”) and Amended and Restated Operating Agreement (“Operating Agreement”) to allow market participants to submit day-ahead offers that vary by hour and to update such offers in real time (“April Order”).  FERC also denied PJM’s motion for clarification as to whether PJM’s Independent Market Monitor (“IMM”) may file certain complaints against PJM.
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On April 17, 2019, FERC issued a Notice of Proposed Rulemaking (“NOPR”) in which it proposed to approve, pending certain modifications, Critical Infrastructure Protection (“CIP”) Reliability Standard CIP-012-1 (“Proposed Reliability Standard”), as submitted by the North American Electric Reliability Corporation (“NERC”).  The Proposed Reliability Standard is designed to mitigate cybersecurity risks associated with communications between bulk electric system control centers.  While FERC found that the Proposed Reliability Standard largely met FERC’s directive set forth in Order No. 822, FERC stated that the Proposed Reliability Standard did not address all of its concerns, and thus proposed to direct NERC to modify the Proposed Reliability Standard.
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On April 18, 2019, FERC partially granted a complaint American Wind Energy Association and the Wind Coalition filed against the Southwest Power Pool, Inc. (“SPP”), alleging that the membership exit fee provisions, as applied to entities who are not transmission owners, violated the cost causation principle and resulted in unduly discriminatory rates (the “Complaint”).  FERC found that SPP’s membership exit fee is unjust and unreasonable because it creates a barrier to SPP membership for non-transmission owners and appears to be excessive. Accordingly, FERC directed SPP to eliminate the membership exit fee for non-transmission owners.

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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.
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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.
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On March 26, 2019, FERC accepted, subject to condition, AMP Transmission, LLC’s (“AMP”) proposed formula rate template and implementation protocols (collectively, “Formula Rate”) to recover a revenue requirement based on a cash-flow method for AMP’s integrated transmission facilities located in the PJM Interconnection, L.L.C. (“PJM”) region.  As a minor condition of acceptance, FERC directed AMP to revise on compliance its Formula Rate to enable AMP to use it in PJM transmission zones that require different rate years, as opposed to only in zones whose rate year is based on the calendar year.
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On March 21, 2019, FERC issued a Notice of Inquiry (“NOI”) seeking information regarding whether and how to revise its policy for determining the rate of return on equity (“ROE”) used in setting rates charged by jurisdictional public utilities.  The NOI also seeks comment on whether any changes to the Commission’s ROE policies for public utilities should be applied to interstate natural gas and oil pipelines.  Specifically, the NOI requests information in eight areas:  (1) the role of FERC’s base ROE in investment decision-making and what objectives should guide the Commission’s approach; (2) whether uniform application of FERC’s base ROE policy across the electric, interstate natural gas pipeline and oil pipeline industries is appropriate and advisable; (3) performance of the discounted cash flow (“DCF”) model; (4) proxy groups; (5) the choice of financial model(s) used; (6) the mismatch between market-based ROE determinations and book-value rate base; (7) how FERC determines whether an existing ROE is unjust and unreasonable under the first prong of Federal Power Act section 206; and (8) model mechanics and implementation.
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