On July 23, 2019, the U.S. Court of Appeals for the Third Circuit (“Third Circuit”) ruled that state substantive law should be used as the federal standard when determining landowners’ compensation in condemnation actions brought by private entities acting under the Natural Gas Act of 1938 (“NGA”).  The Third Circuit ruling reversed a decision by the U.S. District Court for the Middle District of Pennsylvania (“District Court”) and remanded the case for further proceedings.
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On July 18, 2019, FERC issued a final rule (“Order No. 860”) revising its data collection and reporting requirements for market-based rate (“MBR”) sellers (“MBR Sellers”).  FERC will require MBR Sellers to provide certain information about corporate relationships and affiliations through a “relational database” that FERC will implement over the next year and a half.  Among other things, FERC adopted reforms to (1) revise the scope of ownership information provided by MBR Sellers in their market-based rate filings; (2) change the information to be included in an asset appendix; (3) require MBR Sellers to submit monthly updates to their relational database; (4) require MBR Sellers to file quarterly notices of change in status, instead of 30 days after the change in status; and (5) remove the existing requirement that MBR Sellers submit corporate organization charts.  Notably, FERC declined to adopt its proposal requiring MBR Sellers to submit “Connected Entity” information.
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On June 24, 2019, FERC rejected the Midcontinent Independent System Operator, Inc.’s (“MISO”) and the MISO Transmission Owners’ (collectively, “Filing Parties”) tariff revisions regarding cost allocation for regional and local economic transmission projects, finding that the cost allocation methodology related to the Filing Parties’ newly proposed Local Economic Project category was inconsistent with the cost-causation principle.  FERC rejected the Filing Parties’ filing as a whole based on the above finding, however FERC did provide guidance on other portions of the filing, stating that it did not find such other aspects of the filing to be unjust and unreasonable.
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On June 11, 2019, FERC accepted Republic Transmission LLC’s (“Republic”) proposed transmission formula rate (“Formula Rate”) that will be incorporated into Midcontinent Independent Transmission System Operator, Inc.’s (“MISO”) tariff when Republic becomes a transmission owner in MISO.  Additionally, FERC granted Republic’s request for authorization to allow future affiliates or subsidiaries of Republic that undertake transmission projects in the MISO region to apply the Formula Rate, as well as the transmission rate incentives previously granted to Republic (“Incentives”).
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On June 5, 2019, FERC revoked the self-certification for qualifying facility (“QF”) status of Eco Green Generation LLC’s (“Eco Green”) hybrid power generation facility (the “Facility”) located in and around Fairbanks, Alaska.  In doing so, FERC found that the Facility—which consists of a wind farm and twenty duel-fueled renewable diesel and propane engines intended to firm the energy generated by the wind farm—does not meet the criteria for a small power production QF or a cogeneration QF.
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On May 21, 2019, FERC announced that it will convene a staff-led public meeting on July 15, 2019 to discuss ISO New England Inc.’s (“ISO-NE”) development of tariff revisions addressing the regional fuel security concerns discussed by FERC in a July 2, 2018 order.  Commissioners from FERC are invited to attend and participate in the meeting, along with their staffs.
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On May 16, 2019, FERC rescinded its policy of issuing public Notices of Alleged Violations (“NAV”) after a subject of an investigation has had an opportunity to respond to Office of Enforcement (“OE”) staff’s preliminary findings (“NAV Policy”).  FERC found that the NAV Policy no longer struck an appropriate balance between the benefit of added transparency and the potential negative impacts that the loss of confidentiality may cause to investigative subjects.
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On May 3, 2018, FERC accepted revisions proposed by PJM Interconnection, L.L.C. (“PJM”) to its Open Access Transmission Tariff, Amended and Restated Operating Agreement, and Reliability Assurance Agreement Among Load Serving Entities in the PJM Region, to reflect load reductions from Summer-period Demand Response resources in load forecasts for PJM’s capacity market (“Peak Shaving Adjustment”).
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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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