On February 19, 2019, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an unpublished opinion in Appalachian Voices v. FERC, No. 17-1271, denying petitions for review filed by Appalachian Voices, Chesapeake Climate Action Network, and the Sierra Club, among others (“Petitioners”), that challenged FERC’s issuance of a certificate of public convenience and necessity (“certificate”) for the 300-mile natural gas Mountain Valley Pipeline extending from Wetzel County, West Virginia to Pittsylvania County, Virginia. The D.C. Circuit’s order rejected all sixteen of the Petitioners’ challenges to FERC’s approval of the certificate, and notably concluded that: (1) market need for the project was demonstrated by long-term precedent agreements, even though the agreements were with affiliates, and (2) FERC’s estimate of emissions resulting from the end-use combustion of natural gas and explanation why the Social Cost of Carbon is not an appropriate measure of project-level climate change impacts were all that was required by the National Environmental Policy Act (“NEPA”). Continue Reading D.C. Circuit Denies Petitions for Review of FERC’s Mountain Valley Pipeline Approval

On February 22, 2019, FERC issued a final rule (“Order No. 857”) conforming FERC’s regulations to the America’s Water Infrastructure Act (“AWIA”), which amended sections of the Federal Power Act (“FPA”) pertaining to preliminary permits, qualifying conduit hydropower facilities, and start for payment of annual charges.  Continue Reading FERC Finalizes Rule Implementing AWIA Hydro Project Reforms

On February 14, 2019, FERC Chairman Neil Chatterjee testified alongside officials from the North American Electric Reliability Corporation, the Department of Energy (“DOE”), the National Guard, and an engineering firm at a hearing before the U.S. Senate Committee on Energy and Natural Resources (“Committee”) to consider cybersecurity efforts in the energy industry.  In response to Senators’ questions about whether the natural gas industry should be subject to mandatory cyber security standards, a position the Chairman laid out in a June 2018 op-ed written with fellow FERC Commissioner Richard Glick, Chairman Chatterjee acknowledged that natural gas pipelines remain vulnerable to cyber-attacks and that it is imperative to continue work to address these threats.  He made clear, however, that industry and government have made significant strides toward addressing the issue even without mandatory cybersecurity standards.  Chairman Chatterjee assured the Committee that FERC is dedicated to protecting the energy sector from cyber threats and is ready to work with Congress and other agencies to bolster the nation’s cybersecurity posture. Continue Reading FERC Chairman Chatterjee Testifies on Cybersecurity

On February 8, 2019, FERC approved nine revisions to the New York Independent System Operator, Inc. (“NYISO”) Tariff addressing its Public Policy Transmission Planning Process.  While the changes mainly provide additional process and transparency to NYISO’s existing procedures, NYISO also removed the requirement that the New York Public Service Commission (“New York Commission”) issue an order confirming the transmission need before NYISO can move forward with its planning process. Continue Reading FERC Approves Changes to NYISO Transmission Planning Process

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 February 5, 2019, a copy of a December 13, 2018 policy directive memorandum from the U.S. Department of the Army’s Assistant Secretary for Civil Works to the U.S. Army Corps of Engineers (“USACE”) Chief of Engineers was released.  Notably, the memorandum directs the USACE to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act (“CWA”) Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification. Continue Reading U.S. Army Corps of Engineers to Tighten Clean Water Act Section 401 Certification Timeframes

On December 14, 2018, Vineyard Wind, LLC (“Vineyard Wind”) filed a Petition with FERC to waive the pro-rata proration requirements of the ISO New England, Inc. (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”) so that Vineyard Wind could participate in the upcoming ISO-NE Forward Capacity Auction 13 (“Auction 13”) as a Renewable Technology Resource (“RTR”).  Because time was of the essence, Vineyard Wind asked FERC to render an expedited decision no later than January 29, 2019.  FERC took no action on the Petition, however, and as of this writing, has also not taken any action on Vineyard Wind’s subsequent Emergency Motion for relief, rendering it all but certain that Vineyard Wind will be unable to participate in Auction 13. Continue Reading FERC Takes no Action on Vineyard Wind’s Petition for RTR Status

On February 5, 2019, in an unpublished summary order, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit (“2nd Circuit”) overturned the New York State Department of Environmental Conservation’s (“New York DEC”) denial of a water quality certification for National Fuel Gas Supply Corporation’s (“National Fuel”) Northern Access Pipeline Project and remanded it back to the state for further explanation. Continue Reading 2nd Circuit Vacates New York’s Denial of Water Quality Certification for Gas Pipeline

On February 4, 2019, FERC issued a notice that its staff and the Department of Energy (“DOE”) will co-host a technical conference on Security Investments for Energy Infrastructure.  The technical conference will broadly address two main topics.  Continue Reading FERC, DOE Announce Technical Conference on Security Investments for Energy Infrastructure

On January 29, FERC issued an order accepting revisions to ISO New England Inc.’s (“ISO-NE”) Competitive Auctions with Sponsored Policy Resources (“CASPR”) program, the ISO-NE’s mechanism to integrate state-sponsored generation resources (“Sponsored Policy Resources”) that might otherwise suppress prices in its Forward Capacity Market.  The order addressed the contested test price mechanism in detail, ultimately accepting it as a just and reasonable modification to ISO-NE’s Forward Capacity Auction (“FCA”) design.  In so doing, FERC’s order permits ISO-NE to bar capacity resources from participating in the FCA secondary auction if those resources bid capacity into the FCA primary action at a price below the ISO-NE’s assessment of their going-forward costs.  FERC’s order drew a dissent from Commissioner Glick, who argued that the test price mechanism had not been shown to be just and reasonable. Continue Reading FERC Accepts Revisions to ISO-NE’s CASPR Program, Including Disputed Test Price Proposal