On May 16, 2019, FERC rescinded its policy of issuing public Notices of Alleged Violations (“NAV”) after a subject of an investigation has had an opportunity to respond to Office of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 March 21, 2019, the Commission issued a proposed order directing two wind energy generators, Cedar Creek Wind Energy, LLC (“Cedar Creek”) and Cedar Creek II, LLC (“Cedar Creek II”) (collectively the “Cedar Creek Entities”) to provide interconnection and transmission service to a proposed wind project, Mountain Breeze Wind, LLC (“Mountain Breeze”) across jointly-owned interconnection customer facilities (“ICIF”) to the Public Service Company of Colorado (“PSCo”) transmission system.  Although Cedar Creek II sought to dismiss the matter as an impermissible attempt by Mountain Breeze to acquire an ownership interest in the ICIF outside of a Federal Power Act (“FPA”) Section 203 or Section 205 proceeding, FERC rejected this characterization and instead found narrowly that Mountain Breeze had properly filed an application for Commission-ordered service under FPA Sections 210 and 211.  FERC directed the parties to attempt to reach an agreement on the terms and conditions for interconnection and transmission service, or a separate order prescribing such terms and conditions would be issued.
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On January 4, 2019, the U.S. District Court for the District of Maine (“Maine District Court”) issued an order on two motions for summary judgment concluding that FERC’s assessment of a civil penalty against Competitive Energy Services, LLC (“CES”) and its managing member, Richard Silkman (collectively, “Respondents”) was not time-barred by the statute of limitations under 28 U.S.C. § 2462.  In doing so, the Maine District Court denied the Respondents’ motion for summary judgment. 
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On September 24, 2018, the U.S. District Court for the Eastern District of Virginia (“District Court”) concluded that FERC’s assessment of a civil penalty against Powhatan Energy Fund, LLC and certain of its traders and affiliates (“Powhatan”) for market manipulation allegations was not barred by the statute of limitations because FERC’s claim accrued when Powhatan failed to pay the civil penalty rather than when the alleged violations actually occurred.  However, the District Court noted that it was particularly difficult to apply the statute of limitations to enforcement actions brought under the Federal Power Act’s (“FPA”) de novo review procedures and thus stayed the issue to allow Powhatan to file an interlocutory appeal.
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On June 8, 2018, FERC approved a Stipulation and Consent Agreement (“Settlement”) between the Office of Enforcement (“OE”) and Duke Energy Corporation and its public utility operating subsidiaries (“Duke”).  OE claimed that Duke violated FERC regulations when it failed to accurately describe certain information in the transmission studies submitted in support of its merger with Progress Energy, Inc. (collectively, “Applicants”).  FERC determined that the Settlement was fair and reasonable and resolved all outstanding claims and proceedings between OE and Duke. 
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On May 4, 2018, the U.S. Court of Appeals for the Second Circuit (“Second Circuit”) dismissed a private suit filed by a group of investors (“Plaintiffs”) seeking damages for Total Gas & Power North America, Inc., Total S.A., and Total Gas & Power Limited (collectively, “Total”) for allegedly manipulating natural gas markets at four western trading hubs.  In doing so, the Second Circuit held that Plaintiffs – who did not trade at the four western trading hubs at which Total traded, but argued that Total’s trading impacted Plaintiffs’ trading at the Henry Hub – established constitutional standing but failed to plead sufficient facts to establish a plausible substantive cause of action.
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On April 25, 2018, FERC approved a Stipulation and Consent Agreement (“Settlement”) between the Office of Enforcement (“OE”) and PSEG Resources & Trade, LLC (“PSEG).  The Settlement resolves an investigation into whether PSEG violated certain sections of the PJM Interconnection, L.L.C. (“PJM”) Tariff, Operating Agreement, and FERC’s Market Behavior Rule, when PSEG submitted incorrect cost-based offers into the PJM energy market between 2005 and 2014.  FERC determined that the Settlement was a fair and equitable resolution of the matter, and that the penalty imposed upon PSEG reflected the nature and seriousness of the violations. 
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On April 10, 2018, FERC approved a Stipulation and Consent Agreement (“Settlement”) among the Office of Enforcement (“OE”), ETRACOM LLC (“ETRACOM”), and Michael Rosenberg (together, with ETRACOM, “Respondents”) as in the public interest.  OE claimed that Respondents violated federal law and FERC’s rules against anti-manipulation in the California Independent System Operator Corp. (“CAISO”) wholesale electric market.  FERC determined that the Settlement was fair and reasonable and resolved all outstanding claims and proceedings between OE and the Respondents.
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On February 27, 2018, FERC staff completed an inquiry in which they did not uncover any evidence of anticompetitive withholding of natural gas pipeline capacity on Algonquin Gas Transmission, LLC pipeline (“Algonquin”) by New England shippers.  The inquiry initially arose from allegations made by the Environmental Defense Fund (“EDF”) that Eversource Energy (“Eversource”) and Avangrid, Inc. (“Avangrid”) were artificially constraining capacity on the Algonquin.  After finding that Eversource and Avangrid did not engage in anticompetitive behavior, FERC staff will not take any further action on the matter.
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On January 25, 2018, as amended on January 31, 2018, FERC Office of Enforcement Staff (“OE Staff”) answered BP America Inc., BP Corporation North America Inc., BP America Production Company, and BP Energy Company’s (collectively, “BP”) arguments that FERC must dismiss its order assessing civil penalties and disgorgement against BP for violating FERC’s anti-market manipulation rule due to the five-year statute of limitations for civil penalties.  Among other things, OE Staff argued that (1) enforcement actions under the Natural Gas Act (“NGA”) are distinct from the enforcement process under the Federal Power Act (“FPA”), and thus similar federal district court precedent in the FPA context is inapplicable to BP; and (2) FERC’s issuance of disgorgement is more remedial than punitive and thus not subject to the statute of limitations.
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