On September 28, 2018, President Donald Trump signed into law Public Law No: 115-247, amending Federal Power Act (“FPA”) section 203 to add a $10 million threshold for public utility mergers and acquisitions requiring FERC approval.  The new law will also require FERC to (i) issue a rule to require any public utility to notify FERC, after 30 days of the close of the transaction, if the value of the merger is more than $1 million but less than $10 million and (ii) submit a report to Congress assessing the impacts of the new law.  The amendments to FPA section 203 will become effective on March 27, 2019. 
Continue Reading New Law Amends FPA Section 203 to Add Monetary Threshold to Public Utility Mergers and Acquisitions

On October 1, 2018, FERC released its Strategic Plan for fiscal years 2018-2022.  FERC affirmed its mission of maintaining reliable, efficient, and sustainable energy for consumers by setting three primary goals: (1) ensuring that rates, terms, and conditions are just, reasonable, and not unduly discriminatory or preferential; (2) promoting the development of safe, reliable, and efficient energy infrastructure that serves the public interest through the review of natural gas and hydropower infrastructure proposals; and (3) managing resourcing to support its mission through organizational excellence.
Continue Reading FERC Releases Strategic Plan for FY 2018-2022

On October 3, 3018, President Donald Trump announced his intent to nominate Bernard L. McNamee to fill the vacant seat on FERC, for the term expiring June 30, 2020, resulting from Commissioner Robert Powelson’s resignation. If nominated, confirmed, and sworn in, Mr. McNamee would restore the Republican majority among FERC Commissioners.
Continue Reading President Trump Nominates Bernard McNamee to Fill Vacancy at FERC

On September 4, 2018, the U.S. Senate passed, by voice vote, two bills related to FERC’s authority under the Federal Power Act (“FPA”).  One bill, S. 186, would allow challenges to rate changes that would automatically go into effect when FERC is deadlocked.  The other bill, H.R. 1109, changes the monetary thresholds for determining when a proposed merger or acquisition requires FERC approval.
Continue Reading U.S. Senate Passes Bills Related to FERC Deadlock, Merger Review

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