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.
Continue Reading

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.
Continue Reading

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.
Continue Reading

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.
Continue Reading

On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (together, “Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.”  The practical implications of the Proposed Rule for hydropower project owners and energy project developers are that ephemeral streams and many ponds and ditches used in agricultural, industrial, and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures.
Continue Reading

On December 3, 2018, FERC largely rejected a complaint filed by Monterey MA, LLC (“Monterey”) alleging that PJM Interconnection, L.L.C. (“PJM”) improperly adjusted prices after two transmission line outage events for unauthorized reasons, and without proper notice and documentation in violation of PJM’s Tariff.  Monterey requested that FERC reinstate original prices and that changes be made to the Tariff relating to price revisions so that re-pricing events are more transparent for market participants.  FERC mostly found that Monterey’s allegations were unreasonable and thus largely denied Monterey’s complaint, including Monterrey’s request to reinstate the original market prices.
Continue Reading

On November 19, 2018, FERC accepted ISO New England Inc.’s (“ISO-NE”) request to terminate the capacity supply obligation (“CSO”) of the Clear River Unit 1 natural gas-fired generator (“Clear River”) for the 2021–2022 Capacity Commitment Period. In doing so, FERC found that ISO-NE had the right under its Tariff to terminate Clear River’s CSO because Clear River’s project sponsor, Invenergy Energy Management LLC (“Invenergy”), had covered Clear River’s CSO for two consecutive Capacity Commitment Periods. In the same order, FERC denied Invenergy’s request for waiver of certain provisions of ISO-NE’s Tariff related to the termination of Clear River’s CSO.
Continue Reading

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

On November 15, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) addressing the effect of the Tax Cuts and Jobs Act of 2017 (“TCJA”), which lowered the federal corporate tax rate from 35 percent to 21 percent, on accumulated deferred income tax (“ADIT”) balances. Specifically, FERC proposed to require transmission companies to remove excess ADIT or add deficient ADIT to their rate bases. In addition, FERC issued a policy statement providing accounting and ratemaking guidance related to the treatment of ADIT (“Policy Statement”).
Continue Reading