Energy & Environmental Law Blog

Energy & Environmental Law Blog

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FERC Issues Order Protecting Its Jurisdiction Over Wholesale Power Agreements of Bankrupt Utility

Posted in FERC

The Federal Energy Regulatory Commission has ruled that if any party purchasing electricity pursuant to a FERC-jurisdictional wholesale power agreement proposes to reject that contract as part of a reorganization under the Bankruptcy Code, such party, “must obtain approval from both this Commission and the bankruptcy court to modify the filed rate and reject the… Continue Reading

FERC Rejects Notice of Termination Despite Breach of LGIA

Posted in FERC

The Federal Energy Regulatory Commission (FERC) recently rejected a notice of termination of a large generator interconnection agreement (LGIA), despite finding that the interconnection customer had breached the terms of the agreement. The interconnection customer failed to make scheduled interim payments toward the estimated cost of interconnection facilities and network upgrades, as required under the… Continue Reading

FERC Proposes to Reduce Information Burdens on Certain Market-Based Rate Sellers of Electricity

Posted in FERC
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In a Notice of Proposed Rulemaking dated December 20, 2018, the Federal Energy Regulatory Commission is proposing to reduce the burden on certain entities that sell electricity into organized wholesale electricity markets at market-based rates. At the present time, each entity proposing to sell electricity at market-based rates in wholesale electricity markets must include two… Continue Reading

Residential Solar Developers and Investors Seek Regulatory Clarity from FERC

Posted in FERC

As the costs of residential solar photovoltaic (PV) systems fall and installations rise, developers and investors face new regulatory hurdles. Registration as a qualifying facility (QF) under the Public Utility Regulatory Policy Act (PURPA) recently has become a common subject of concern among both developers and tax equity investors. Developers are working to determine whether… Continue Reading

Could Pairing Storage + Renewables Change a Qualifying Facility’s Status?

Posted in FERC

The Federal Energy Regulatory Commission (FERC) is currently considering whether pairing energy storage with a wind power project could change that facility’s status in FERC Docket No. EL18-195-000. In August 2018, Northwestern Energy petitioned FERC to revoke qualifying facility (QF) status from four Beaver Creek Wind II, LLC (“Beaver Creek”) wind-plus-battery projects under the Public… Continue Reading

Recent DOE Audit Spurs Modernization of FERC.Gov

Posted in FERC

Controversies over natural gas pipeline siting and construction have turned the Federal Energy Regulatory Commission (FERC) into a newsmaker in recent years. As public awareness concerning pipeline projects grows, more members of the public are turning to the FERC’s website (, to understand how FERC evaluates pipeline certificate applications and to get updates on the… Continue Reading

D.C. Circuit Sinks FERC Hydro License for Failure to Adequately Consider Past Environmental Harm

Posted in Electric Power, FERC, Natural Resources, Renewables, Water Law

Last Friday, the D.C. Circuit torpedoed a hydroelectric license issued in 2013 to Alabama Power Company because the Federal Energy Regulatory Commission (FERC) and the U.S. Fish and Wildlife Service (USFWS) “declined to factor in the decades of environmental damage already wrought by exploitation of the waterway for power generation and that damage’s continuing ecological… Continue Reading

FERC’s New Gas Pipeline Certificate Notice of Inquiry: Unlikely to Change the Status Quo

Posted in FERC

On April 19, FERC issued a Notice of Inquiry (NOI) soliciting public comments on whether to revise its long-standing policy governing the processing and approval of new natural gas pipeline facilities under Section 7 of the Natural Gas Act. Although this opens the floodgates to public comment on very contentious issues, it is unlikely to result in… Continue Reading

FERC Raises the Bar for Public Participation in Gas Pipeline Certificate Proceedings

Posted in FERC

The Federal Energy Regulatory Commission (FERC) has a long-standing reputation for non-partisan decision-making. This was reinforced by its January 2018 rejection of the Department of Energy’s demand that electric pricing rules be changed to incentivize coal-fired and nuclear electric generation.  More recent FERC actions, however, suggest that this independent regulatory agency is trending towards greater… Continue Reading

FERC Should Reconsider Its Bias in Favor of Incremental Pricing of Pipeline Expansions

Posted in FERC

At his first Federal Energy Regulatory Commission (FERC) meeting this past December, Chairman Kevin McIntyre announced the agency will be soliciting comments on whether to revise its 1999 Certificate Policy Statement (CPS), which FERC uses to evaluate applications to build new pipelines or expand existing ones. Under the CPS, the pipeline must show that the… Continue Reading

FERC Allows Electric Storage Participation in Wholesale Markets; Sets Technical Conference for Distributed Energy Resource Aggregation

Posted in FERC

Electric Storage On February 15, 2018, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued a final rule (Order No. 841, the “Order”) requiring each independent system operator (“ISO”) and regional transmission organization (“RTO”) to adjust their tariffs to better accommodate energy storage resources. Eligible storage facilities include any “resource capable of receiving electric energy… Continue Reading

Industry Petition Pushes FERC to Require Gas Pipelines and Storage Companies to Immediately Reflect Lower Tax Rates in Shipper Rates

Posted in FERC

In light of reduced corporate tax rates as the result of Tax Cuts and Jobs Act of 2017 (Tax Act), a broad coalition of gas industry trade associations and gas producers recently filed a petition with the Federal Energy Regulatory Commission (FERC) urging the agency to lower gas pipeline and storage company rates to reflect tax rate… Continue Reading

FERC Rejects FirstEnergy’s Application To Transfer Generating Facility to an Affiliated Utility

Posted in FERC

In an order issued on January 12, 2018, the Federal Energy Regulatory Commission (“FERC” or “Commission”) rejected an application by Monongahela Power Company (“Mon Power”), a franchised public utility subsidiary of FirstEnergy Corp. (“FE”) engaged in providing electric service in West Virginia, to acquire needed generation capacity from an affiliate. Mon Power had concluded through… Continue Reading

New Tax Law Exerts Downward Pressure on Incremental Project Recourse Rates

Posted in FERC

Pipeline expansion capacity is priced at the incremental cost of service of the new facilities to be constructed. This causes the incremental recourse rate to generally be higher than the otherwise applicable system recourse rate. That is no longer necessarily the case. In an order issued to Transcontinental Gas Pipe Line Company January 18, 2018, FERC… Continue Reading

2018 Tax Law to Reduce Pipeline Expansion Recourse Rates

Posted in FERC

FERC staff has asked gas pipelines with pending expansion applications how 2018 tax law changes will impact their proposed project’s cost of service and the project’s proposed incremental rates.  FERC has imposed a quick, three business day turnaround on responses. In identical data requests sent to a number of pipelines within the last week, FERC… Continue Reading

Trump Track: FERC Rejects DOE Coal/Nuclear Rule Proposal But Initiates A New One

Posted in FERC, Trump Track

On January 8, 2018, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued an order declining to conduct a rulemaking proposed by Department of Energy Secretary Rick Perry to that would create rate incentives for the coal and nuclear industries (“Proposed Rule”). The Proposed Rule would have required FERC-jurisdictional Independent System Operators (“ISOs”) and Regional… Continue Reading

Trump Track: DOE Proposes FERC Action to Benefit Coal and Nuclear Power

Posted in FERC, Trump Track

On September 28, 2017, the Department of Energy (“DOE”) issued a Notice of Proposed Rulemaking (“NOPR”) to the Federal Energy Regulatory Commission (“FERC”) pursuant to §403(a) of the DOE Organization Act.  Regulations proposed in the NOPR would require FERC-jurisdictional Independent System Operators (“ISOs”) and Regional Transmission Organizations (“RTOs”) to develop rules for compensation of certain… Continue Reading

President Trump to Restore Quorum at FERC

Posted in FERC

It has been widely reported that President Donald J. Trump is preparing to nominate three new commissioners to fill existing vacancies at the Federal Energy Regulatory Commission.  The prospective nominees are Kevin J. McIntyre, Neil Chatterjee, and Robert F. Powelson.  A little bit about each: Kevin McIntyre is co-head of the energy practice of Jones… Continue Reading

Can Electric Storage Resources Collect Both Cost-Based and Market-Based Revenue?

Posted in FERC

The short answer is: yes, with a few caveats. On January 19, 2017, the Federal Energy Regulatory Commission (“FERC”) issued a policy statement that, under appropriate circumstances, electric storage resources may concurrently receive cost- and market-based revenues for providing separate services. If an electric storage resource owner/operator wants to receive cost-based rate recovery and market-based… Continue Reading

FERC Proposes New Market Rules to Better Integrate Energy Storage and Distributed Resources into Organized Markets

Posted in FERC

On November 17, 2016, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Proposed Rulemaking seeking comments on its proposal to remove barriers to the participation of electric storage resources and distributed energy resource aggregators in the organized wholesale electric markets. If successful, these new rules could unlock huge new market opportunities for distributed… Continue Reading

FERC Seeks Comments on Potential Changes to Review of Mergers and Acquisitions

Posted in Federal, FERC

The Federal Energy Regulatory Commission (“FERC” or “Commission”) has asked for comments on procedures established for its review of mergers and acquisitions pursuant to section 203 of the Federal Power Act (“FPA”). In a Notice of Inquiry (“NOI”) issued on September 22, 2016, the Commission explained that it is seeking to “harmonize” its analysis of… Continue Reading

FERC Requires New England Generators to Reveal How Bids Formulated

Posted in Electric Power, FERC

On August 8, 2016, the Federal Energy Regulatory Commission (FERC) issued its order on remand from the D.C. Circuit on FERC’s approval of ISO New England’s (ISO-NE) 2013-14 winter reliability program, results, and rates. (TransCanada Power Marketing Ltd v. FERC, No. 14-1103). In a ruling that could have a significant impact on the rates that… Continue Reading

Securing New Pipeline Capacity in Today’s Turbulent Gas Market: Best Practices and Things to Know

Posted in FERC, Oil & Gas

With the rapid growth of natural gas production from shale plays and growing demand due to low gas prices, pipeline companies have been scrambling to expand and reconfigure their systems to serve the needs of a changing gas marketplace.  Federal Energy Regulatory Commission (FERC) rules generally govern the commercial terms pipelines can offer prospective capacity… Continue Reading