On February 21, 2019, FERC issued a final rule (“Order No. 855”) amending Part 33 of its regulations to establish that FERC authorization for mergers or consolidations of a public utility’s jurisdictional facilities is only required when such transactions exceed a $10 million threshold. Order No. 855 also establishes that public utilities are not required to secure FERC authorization for mergers and acquisitions that are valued between $1 million and $10 million – instead they are only required to submit a notification filing. Order No. 855 will become effective 30 days after publication in the Federal Register. Continue Reading FERC Issues Final Rule Regarding Amended Mergers and Consolidations Requirements
On February 21, 2019, FERC issued an order (“Order No. 845-A”) granting in part and denying in part various requests for rehearing and clarification of its determinations in Order No. 845. In Order No. 845, FERC revised its interconnection rules for large generators, i.e., generators with capacities greater than 20 MW. Although the requests for rehearing asked FERC to reconsider all but one of the Order No. 845 reforms, Order No. 845-A effectively leaves the major reforms intact, and focuses in large part on explaining FERC’s intentions as to how the new rules should work. Compliance filings in response to both Order Nos. 845 and 845-A are due May 22, 2019. Continue Reading FERC Revises and Clarifies Order No. 845 Large Generator Interconnection Reforms
On February 21, 2019, FERC issued a Final Rule, Order No. 856, amending its regulations related to interlocking officers and directors in response to a Notice of Proposed Rulemaking (“NOPR”) issued on July 18, 2018 to revise Parts 45 and 46 of its regulations (see July 24, 2018 edition of the WER).
On February 11, 2019, a group of seventeen Democrat United States Senators and Senator Bernie Sanders wrote a letter (the “2019 Letter”) to FERC Chairman Neil Chatterjee urging FERC to adopt a rule requiring Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”) to open their markets to participation of aggregated distributed energy resources (“DERs”). Continue Reading Senators Urge FERC Action on Distributed Energy Resources
On January 7, 2019, FERC Commissioner Bernard McNamee signaled in a letter to members of the United States Senate (“January 7 Letter”) that he would not recuse himself from FERC’s pending grid resiliency proceeding in Docket No. AD18-7 unless the FERC proceeding began to “closely resemble” a Notice of Proposed Rulemaking (“NOPR”) issued in September 2018 by the Department of Energy (“DOE”). Commissioner McNamee helped draft the DOE NOPR, which also addressed grid resiliency issues and was rejected by FERC in Docket No. RM18-1 in January 2018 (see January 17, 2018 edition of the WER), when he was an attorney at the DOE. The January 7 Letter responded to a December 12, 2018 request from a group of Senators, led by Catherine Cortez Masto (D-NV), that Commissioner McNamee provide an update on the guidance he received from FERC ethics officials regarding his recusal from specific proceedings. According to that guidance, notwithstanding the similarities between Docket No. AD18-7 and the now-terminated Docket No. RM18-1 on the DOE NOPR, previous statements by Commissioner McNamee did not meet the legal standard for recusal, although the guidance urged “continued oversight to ensure that Docket No. AD18-7 does not develop in such a way as to replicate or closely resemble Docket No. RM18-1.” Continue Reading Commissioner McNamee Unlikely to Recuse Himself from FERC Grid Resiliency Proceeding Unless it “Closely Resembles” DOE Resiliency NOPR
On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule” or “MATS”) for coal- and oil-fired electric generating units (“EGUs”) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”). The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect. The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews. Continue Reading EPA Proposes to Find the Mercury and Air Toxics Standards Not Cost Justified
On December 6 and December 18, 2018, various environmental groups filed a motion and comments with FERC requesting that Commissioner Bernard McNamee recuse himself from FERC’s two ongoing grid resiliency proceedings. The groups argued that because Commissioner McNamee represented the Department of Energy (“DOE”) when the agency proposed compensating “fuel-secure” units for their contribution to the resilience of the electrical grid, recusal is appropriate because he is already a party to the proceedings, and in any event, may have already “prejudged” central matters of law and fact relevant to those dockets. Continue Reading Advocates Request Recusal of Newly-Confirmed Commissioner McNamee from Grid Resiliency Proceedings
On December 18, 2018, FERC eliminated the requirement for hydroelectric project licensees to file Form 80, which solicited information on the use and development of recreation facilities at FERC-licensed hydropower projects. FERC also revised Sections 8.1 and 8.2 of its regulations to (1) modernize licensee public notice practice, (2) clarify recreational signage requirements, and (3) provide flexibility to assist licensees’ compliance with these requirements. The Final Rule will go into effect 90 days after it is published in the Federal Register. Continue Reading FERC Eliminates Form 80 for Hydroelectric Projects
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 Trump Administration Releases “WOTUS” Rule Proposal
On November 15, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to implement Public Law No. 115-247, which amended section 203 of the Federal Power Act (“FPA”) to clarify that FERC authorization is only required for mergers or consolidations valued at more than $10 million. In addition, in accordance with the new law’s requirements, FERC proposes that transactions that are valued at $10 million or less, but more than $1 million, would only be subject to a notification requirement.