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 19, 2019, FERC conditionally accepted the Midcontinent Independent System Operator, Inc.’s (“MISO”) proposed tariff revisions to: (1) clarify how market participants with pseudo-ties outside of MISO can use virtual transactions to align Financial Transmission Rights (“FTRs”) and transmission usage charges; and (2) reduce the administrative charges assessed to market participants with a pseudo-tie of generation or load out of MISO.
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On March 11, 2019, a U.S. district court judge in California denied FERC’s motion to withdraw the reference of Pacific Gas and Electric’s (“PG&E”) adversary proceeding from the U.S. Bankruptcy Court in the ongoing jurisdictional dispute between FERC and the bankruptcy court.  In his ruling, Judge Haywood Gilliam Jr. of the U.S. District Court for the Northern District of California held that removal of the case from the bankruptcy courts was neither required nor permitted because the plain language of the Bankruptcy Code is sufficient to address the questions raised in the proceeding.
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On February 21, 2019, FERC took “a new approach” to its approval of pending FERC-jurisdictional liquefied natural gas (“LNG”) projects by calculating the direct greenhouse gas (“GHG”) emissions from the operation of the project facilities and comparing those emissions to the national level.  FERC’s approach was a step toward ultimately approving a proposed LNG project that was previously pulled from FERC’s December 2018 open meeting.  Notwithstanding FERC’s approval, Commissioner Cheryl LaFleur reiterated her concern that while FERC’s disclosure of national comparison data is only the first step, “the Commission has not identified a framework for making a significance determination” based on GHG emissions.  Meanwhile, Commissioner Richard Glick dissented, arguing that FERC’s GHG analysis fails to meet the requirements of both the Natural Gas Act (“NGA”) and the National Environmental Policy Act (“NEPA”), both of which require that FERC consider climate change implications in some manner.  Separately, FERC approved two smaller gas pipeline projects, with Commissioner LaFleur issuing separate concurrences, and Commissioner Glick issuing separate dissents, in each.   
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On February 19, 2019, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an unpublished opinion in Appalachian Voices v. FERC, No. 17-1271, denying petitions for review filed by Appalachian Voices, Chesapeake Climate Action Network, and the Sierra Club, among others (“Petitioners”), that challenged FERC’s issuance of a certificate of public convenience and necessity (“certificate”) for the 300-mile natural gas Mountain Valley Pipeline extending from Wetzel County, West Virginia to Pittsylvania County, Virginia. The D.C. Circuit’s order rejected all sixteen of the Petitioners’ challenges to FERC’s approval of the certificate, and notably concluded that: (1) market need for the project was demonstrated by long-term precedent agreements, even though the agreements were with affiliates, and (2) FERC’s estimate of emissions resulting from the end-use combustion of natural gas and explanation why the Social Cost of Carbon is not an appropriate measure of project-level climate change impacts were all that was required by the National Environmental Policy Act (“NEPA”).
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On January 29, 2019, over 180 environmental organizations (“Environmental Groups”) wrote a letter to members of Congress requesting a congressional hearing into the approval process for interstate gas pipelines.  The Environmental Groups argue that FERC approves nearly all proposed pipelines, abuses its eminent domain authority, and relies on erroneous data when evaluating whether to allow pipeline companies to begin construction.
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On January 16, 2019, FERC launched investigations and initiated hearings pursuant to Natural Gas Act (“NGA”) section 5 into three natural gas pipeline companies in response to their Form No. 501-G filings to explore whether they have been over-recovering their costs of service.  Separately, FERC also found that nine other gas companies sufficiently complied with FERC’s directives in Order No. 849 and terminated their Form No. 501-G proceedings without taking any further action.
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On December 20, 2018, FERC proposed to revise the horizontal market power analysis required for electric power sellers seeking to obtain or retain market-based rate authority in certain organized wholesale power markets (“NOPR”).  Specifically, FERC proposed to relieve electric power sellers of the obligation to submit indicative screens when seeking to obtain or retain market-based rate authority in any Regional Transmission Organization (“RTO”)/Independent System Operator (“ISO”) market with FERC-approved RTO/ISO monitoring and mitigation, thus easing the regulatory burden for certain market-based rate sellers.  However, FERC proposed to continue to require market-based rate sellers in an RTO/ISO to submit indicative screens for authorization to make capacity sales at market-based rates in any RTO/ISO market that lacks an RTO/ISO-administered capacity market subject to FERC-approved RTO/ISO monitoring and mitigation.
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On December 11, 2018, FERC approved the Midcontinent Independent System Operator, Inc.’s (“MISO”) proposed tariff revisions to remove the service territory of Entergy New Orleans, LLC (“Entergy New Orleans”) from Cost Allocation Zone 9 to its own new Cost Allocation Zone 12 (“Proposal”).  FERC found that the Proposal was just and reasonable because it would result in an allocation of costs that is at least roughly commensurate with MISO’s Transmission Expansion Plan (“MTEP”) economic project benefits.
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