On June 21, 2018, the Supreme Court of the United States (“Supreme Court”) held that the U.S. Securities Exchange Commission’s (“SEC”) Administrative Law Judges (“ALJs”) are “Officers of the United States” whose appointment must meet the requirements of the Constitution’s Appointments Clause.  Accordingly, pursuant to the Appointments Clause, the SEC ALJs must be appointed by the SEC itself, as the “Head of the Department.”  It is unclear whether this impacts any of the current ALJs at FERC.  Continue Reading Supreme Court Rules SEC ALJs Were Not Constitutionally Appointed

On June 12, 2018, the Senate Energy and Natural Resources Committee hosted all five FERC Commissioners for an oversight hearing to discuss topics that included the agency’s approach to changes in the makeup of generating plants on the bulk power system and the efficiency of its energy infrastructure permitting processes. Continue Reading Senate Energy and Natural Resources Committee Holds Hearing on FERC Oversight

On March 6, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied Duke Energy Carolinas, LLC’s (“Duke Energy”) petition for review of FERC’s grant of a forty-year license for the Catawba-Wateree Project (“Project”).  FERC had found that, despite Duke Energy’s requested fifty-year term for the license renewal, the measures required by FERC in issuing the license were only “moderate,” and thus warranted the forty-year term.  Duke Energy argued that FERC acted arbitrarily and capriciously by not granting the fifty-year license.  The D.C. Circuit deferred to FERC’s analysis in granting a forty-year license. Continue Reading D.C. Circuit Defers to FERC’s Qualitative Approach for Establishing Term for Hydroelectric Project Licenses

On January 9, 2018, several state Attorneys General, state agencies, and state consumer advocates (“State Advocates”) sent a joint letter to the FERC Commissioners requesting that FERC open an investigation into the continued justness and reasonableness of FERC-jurisdictional electric and natural gas utilities’ (“Public Utilities”) rates considering the recent reduction in the federal corporate income tax rate.  The State Advocates further urged FERC to promptly adjust the revenue requirements of such Public Utilities to prevent utility customers across the nation from overpaying for service.  Continue Reading Multiple States Ask FERC to Adjust Utility and Pipeline Rates due to Tax Reform Bill

On December 7, 2017, the U.S. Government Accountability Office (“GAO”) issued a report summarizing its review of FERC’s oversight of the nation’s four regional capacity markets.  The GAO found generally that “FERC has not fully assessed the overall performance of capacity markets,” and the agency recommends that FERC improve data quality, use consistent metrics reported through standardized definitions, and establish goals, performance metrics, and risk tolerance levels for capacity markets.  The report comes at a time when FERC is considering significant capacity market-related issues, including the Department of Energy-initiated “Grid Reliability and Resilience Pricing” docket (see October 2, 2017 Edition of the WER), and reliability-focused pricing reforms from the PJM Interconnection, L.L.C. (see November 21, 2017 edition of the WER). Continue Reading Government Accountability Office Urges FERC to Improve Data Collection and Assessment of Capacity Market Performance

On December 7, 2017, Kevin McIntyre was sworn in as FERC Chairman.  The addition of Chairman McIntyre now completes a full, five-member Commission.  On the same day, Chairman McIntyre requested a 30-day extension of the deadline for FERC to act on Department of Energy (“DOE”) Secretary Rick Perry’s proposed rulemaking concerning grid resiliency pricing. Continue Reading McIntyre Sworn in as FERC Chairman, Requests Extension to Address DOE NOPR

On November 29, 2017, Richard Glick was sworn in as the latest FERC Commissioner.  Following his nomination for the position by President Trump in August, Commissioner Glick was confirmed by the Senate on November 2, 2017 (see November 7, 2017 edition of the WER).  Commissioner Glick was previously the Democratic General Counsel for the Senate Energy and Natural Resources Committee.  Commissioner Glick will serve the remainder of a term ending in June 2022.  Commissioner Glick will serve alongside current FERC Chairman Neil Chatterjee and Commissioners Cheryl LaFleur and Robert Powelson.  The swearing-in of Commissioner Glick brings FERC’s Commission one step closer to a full five-member Commission.  The Senate has confirmed Kevin McIntyre to fill the last seat on the Commission, but he has not yet been sworn in.

On October 31, 2017, FERC accepted proposed revisions to the ISO New England, Inc. (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”) to incorporate a methodology for interconnection request cluster studies, which were filed by ISO-NE, the New England Power Pool Participants Committee, and the Participating Transmission Owners Administrative Committee on behalf of the Participating Transmission Owners (collectively, the “Filing Parties”).  Under the new revisions, which became effective on November 1, 2017, interconnection requests for resources located in the same electrical part of the ISO-NE system and that meet certain other criteria, will be studied together, as opposed to individually.  As part of the stakeholder discussions preceding the filing, ISO-NE developed a strategic infrastructure study to identify the transmission upgrades needed to interconnect remotely-located wind resources in Maine, which will serve as the first cluster study to proceed under the newly-accepted methodology. Continue Reading FERC Accepts ISO-NE Methodology for Interconnection Cluster Studies

On November 2, 2017, the U.S. Senate confirmed the nominations of Kevin McIntyre and Richard Glick to join FERC.  McIntyre will serve as Chairman once he is officially sworn in.  Together, McIntyre and Glick will fill the five-member Commission board for the first time since October 2015. Continue Reading Senate Confirms McIntyre, Glick to FERC, Filling Remaining Commissioner Seats