On May 9, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed Otsego 2000 Inc.’s (“Otsego”) petition to set aside a FERC order granting a certificate to Dominion Energy Transmission Inc. (“Dominion”) to construct and operate its New Market Project (“Project”).  Specifically, the D.C. Circuit found that Otsego failed to demonstrate standing to petition the court and that Otsego’s expenditure of resources for litigation was insufficient to demonstrate standing.
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As part of its overall proposal to implement carbon pricing to incorporate the social cost of carbon emissions in the wholesale power market, New York Independent System Operator, Inc. (“NYISO”) staff made a presentation at the Market Issues Working Group (“MIWG”) meeting on April 30, 2019 (“MIWG Presentation”).  The MIWG Presentation set forth NYISO’s proposed methodology to calculate the estimated impact of carbon pricing on locational-based marginal prices (“LBMP”).  Specifically, the MIWG Presentation provides additional details about how NYISO proposes to calculate the location-based marginal price-carbon (“LBMPc”), which would consider the impact of carbon pricing on LBMPs for purposes of subtracting from an energy supplier’s ultimate bid during the market settlement phase.

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On April 23, 2019, FERC denied Flint Riverkeeper’s and Chattahoochee Riverkeeper’s (“Riverkeepers”) request for attorney’s fees after the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) vacated the certificates of public convenience and necessity (“CPCNs”) FERC issued for the Southeast Market Pipelines Project (see March 20, 2018 edition of the WER).  In doing so, FERC found, among other things, that the certificate proceeding at FERC did not qualify as an “adversary proceeding” under the Equal Access to Justice Act (“EAJA”) for which the Riverkeepers could seek attorney’s fees because: (1) certificate proceedings are excluded from the definition of “adversary proceeding” and (2) FERC is not represented by counsel in a certificate proceeding but rather acts as an adjudicator.
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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 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.

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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.
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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.
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On March 21, 2019, the same day FERC issued an inquiry into Return on Equity (“ROE”) policies (see here), FERC also published another Notice of Inquiry (“NOI”) seeking comments on the scope and implementation of its electric transmission incentives policy and regulations.  The NOI covers a broad range of topics from using incentives to encourage new technology integration to unlocking location constrained resources and addressing resiliency concerns.  Initial comments are due 90 days after the NOI is published in the Federal Register, with reply comments due 30 days thereafter.

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On March 6, 2019, FERC denied GridLiance GP, LLC’s (“GridLiance”) proposal (“Proposed Transaction”) to acquire from People’s Electric Cooperative certain transmission lines and related facilities (“Assets”).  In its order, FERC concluded that GridLiance failed to demonstrate that the benefits of its ownership of the facilities would offset the rate increases that GridLiance acknowledged would result from the Proposed Transaction.  However, because FERC denied the proposal without prejudice, GridLiance can make a new filing that, according to FERC “proposes adequate ratepayer protection and demonstrates specific additional benefits to offset a rate increase.”

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