On December 30, 2019, FERC accepted tariff revisions by the California Independent System Operator Corporation (“CAISO”) to apply three previously accepted-interim provisions designed to address the Aliso Canyon natural gas storage facility’s (“Aliso Canyon”) continued operational limitations and impacts on CAISO’s system.

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On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.  The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (“FERC”) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401.
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On December 5, 2019, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) granted a petition for rehearing en banc of an opinion it issued on August 2, 2019 (“August 2019 Opinion”) upholding FERC’s decision to conditionally approve the application of Transcontinental Gas Pipeline Company (“Transco”) to construct and operate the Atlantic Sunrise Project.  Petitioners challenge FERC’s use of tolling orders, which allow FERC to delay rehearing after granting a pipeline certificate, as impermissible under the Natural Gas Act and the Due Process Clause of the Fifth Amendment.  Specifically, Petitioners argue that FERC’s use of tolling orders in pipeline certificate proceedings unlawfully require challengers to wait for the rehearing order to issue before obtaining judicial review, while the pipeline can proceed with eminent domain proceedings and pipeline construction following the issuance of FERC’s certificate order.     
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On November 8, 2019, Representative Frank Pallone, Jr. (D-NJ), Chairman of the House  Energy and Commerce Committee, and Representative Bobby L. Rush (D-IL), Chairman of the Subcommittee on Energy (collectively the “Chairmen”), wrote a letter to FERC Chairman Neil Chatterjee expressing their concerns regarding FERC’s proposed changes to sections 201 and 210 of the Public Utility Regulatory Policies Act (“PURPA”).
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On October 17, 2019, FERC amended its Policy Statement on Consultation with Indian Tribes in Commission Proceedings (“Policy Statement”) by adding a specific reference to treaty rights, noting that the Commission addresses input from tribes in its National Environmental Policy Act (“NEPA”) documents, and adding consultation with Alaska Native Corporations to the Policy Statement.
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On October 17, 2019, FERC issued its 2019-2020 Winter Energy Market Assessment (“Assessment”), which is a summary of staff’s expectations about market preparedness, including a high‐level assessment of the risks and challenges anticipated in the coming winter operating season. In its 2019-2020 Assessment, FERC highlighted that: 1) the National Oceanic and Atmospheric Administration (“NOAA”) forecasts a warmer than average winter; 2) natural gas storage levels are expected to be average going into the winter; 3) natural gas futures prices are lower than last winter; 4) a diverse and changing generation resource mix will maintain electric reliability this winter; and 5) expected winter reserve margins exceed reference levels in all regions.

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On September 18, 2019, the First Circuit Court of Appeals (“First Circuit”) affirmed the U.S. District Court for the District of Massachusetts’s (“District Court”) ruling that dismissed twelve New England retail electricity customers’ (“Plaintiffs”) federal antitrust and state-law claims against Eversource Energy and Avangrid, Inc (“Defendants”).  Initially, Plaintiffs filed their lawsuit in District Court, claiming Defendants violated section 2 of the Sherman Act, 15 U.S.C. § 2, as well as various state antitrust and consumer-protection laws (see December 12, 2017 edition of the WER).  The District Court dismissed Plaintiffs’ claims, finding that they were barred by the filed-rate doctrine and, alternatively, that the Plaintiffs lacked antitrust standing and failed to plausibly allege a monopolization claim under the Sherman Act.  On review, the First Circuit agreed with the District Court that the filed-rate doctrine barred Plaintiffs’ federal and state law claims.  Accordingly, the First Circuit found no need to reach the District Court’s alternative grounds for dismissal and dismissed Plaintiffs’ federal and state claims pursuant to the filed-rate doctrine.

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On September 10, 2019, the United States Court of Appeals for the Third Circuit (“Third Circuit”) vacated a federal district court order permitting PennEast Pipeline Company (“PennEast”) to exercise eminent domain power under the Natural Gas Act (“NGA”) over property interests owned by the State of New Jersey.  The Third Circuit found that while the NGA delegates the federal government’s eminent domain authority to private gas companies, it does not delegate the federal government’s separate and distinct exemption from state sovereign immunity under the Eleventh Amendment.  After acknowledging concerns that its decision would disrupt the interstate gas pipeline industry, the Third Circuit suggested that in the case of state-owned property, a “work-around” might be for a federal official to file the necessary condemnation actions, and then to transfer the property to the natural gas company.
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On September 6, 2019, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) dismissed the City of Oberlin, Ohio’s and the Coalition to Reroute Nexus’s (collectively, “Petitioners”) request to vacate FERC’s authorization for Nexus Gas Transmission, LLC (“Nexus”) to: (1) construct and operate an interstate natural gas pipeline through parts of Ohio and Michigan; and (2) use eminent domain to acquire any necessary rights of way to complete the project (see December 18, 2018 edition of the WER).  The D.C. Circuit agreed with Petitioners, however, that the Commission failed to adequately substantiate its finding that it lawfully credited Nexus’s precedent agreements—under which shippers agree to enter into service agreements once the pipeline is built—with foreign shippers serving foreign customers as evidence of market demand for the interstate pipeline.  As a result, the D.C. Circuit remanded this issue to the Commission, without vacatur, for further explanation of the decision.

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On August 28, 2019, FERC found on voluntary remand from the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) that the New York State Department of Environmental Conservation (“New York DEC”) waived its authority under section 401 of the Clean Water Act (“CWA”) to either issue or deny Constitution Pipeline Company, LLC (“Constitution”) a water quality certificate for a proposed 125-mile pipeline project from that would stretch from Pennsylvania to New York (“Project”).  Based on the D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC (“Hoopa Valley”) (see April 24, 2019 edition of the WER), FERC concluded that Constitution’s agreement with the New York DEC to withdraw and resubmit CWA section 401 certification applications did not restart the one-year statutory deadline for the New York DEC to act on Constitution’s application.
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