Since January, FERC-regulated market participants and practitioners alike have anticipated how FERC may approach its enforcement mission under the stewardship of Chairman Richard Glick following his appointment as chair by President Biden. Although most market participants and practitioners have expected FERC to take an aggressive approach in investigating and penalizing instances of misconduct, FERC confirmed those expectations in its May 20 open meeting.
Power & Pipes
FERC, CFTC, and State Energy Law Developments
FERC granted a partial waiver requested by a generation and transmission service cooperative (Petitioner) of certain obligations under FERC’s regulations implementing Section 210 of the Public Utility Regulatory Act of 1978 (PURPA), which mandates the purchase of power from qualifying facilities (QFs). Petitioner filed on behalf of itself and six distribution cooperative member-owners (Participating Members) for waiver of the Participating Members’ obligations to purchase energy and capacity directly from QFs and waiver of Petitioner’s obligation to sell energy and capacity directly to QFs. The order is an example of jurisdictional entities’ ability to swap certain of their obligations under FERC’s regulations in limited situations so long as the intent of the relevant laws is fulfilled.
On March 18, FERC issued a highly anticipated order denying the petition for declaratory order filed by several electric public utilities addressing the extent to which equity ownership of multiple utility holding companies by certain institutional investors creates affiliation between those holding companies. The institutional investors in question hold specific blanket authorizations to acquire up to 20% of the voting equity in public utilities without seeking transaction-specific authorizations from FERC, in contrast to the existing blanket authorization available to all entities that allows acquisitions below 10% without prior authorization.
FERC issued a Notice Seeking Comments on March 18 on its proposal to collect additional data from market-based rate (MBR) Sellers whose ultimate upstream affiliate(s) own their voting securities under a Federal Power Act Section 203(a)(2) blanket authorization. FERC proposes changes to the MBR Data Dictionary so that the relational database rolling out in 2021 can more accurately reflect ultimate upstream affiliates (or the lack thereof) among Sellers that have an ultimate upstream affiliate that is an institutional investor who acquired their securities pursuant to a Section 203(a)(2) blanket authorization specific to that investor.
FERC approved revisions to three Critical Infrastructure Protection (CIP) North American Electric Reliability Corporation (NERC) Reliability Standards to expand the scope of the assets subject to supply chain cybersecurity requirements and related obligations. Supply chain cybersecurity continues to be a focus of NERC, energy industry stakeholders, and government regulatory and securities agencies.
FERC issued a final rule on March 18 amending its regulations to establish a one-year period for state agencies or other certifying authorities to act on requests for water quality certifications required for a certificate of public convenience and necessity for a natural gas pipeline or an authorization for an liquefied natural gas (LNG) terminal.
In the wake of the February extreme cold weather that caused record levels of electric generation to be taken offline, the Federal Energy Regulatory Commission (FERC or the Commission) has scheduled a two-day technical conference to discuss issues surrounding the threat to electric system reliability posed by climate change and extreme weather. The virtual technical conference is scheduled for Tuesday and Wednesday, June 1 and 2, from 1:00 pm to 5:00 pm ET.
FERC issued an original license for a period of 25 years, pursuant to Part I of the Federal Power Act, to Oregon State University (OSU) to construct, operate, and maintain the proposed PacWave South Hydrokinetic Project No. 14616 (PacWave Project). The PacWave Project is a first-of-its-kind wave energy testing facility that will be sited approximately seven miles off the coast of the state of Oregon and consists of both offshore and onshore components.
FERC announced on February 22 that it will open a new proceeding to examine the threats of climate change and extreme weather to electric reliability. The investigation will assess how grid operators prepare for and respond to extreme weather events, including, droughts, extreme cold, wildfires, hurricanes, and prolonged heat waves. The proceeding will include a technical conference with an opportunity for parties to submit comments in advance of that conference.
FERC issued a pair of orders terminating, or upholding the termination of, proceedings designed to evaluate the resiliency of the electric grid on February 18. Both proceedings arose from the US Department of Energy’s (DOE’s) controversial proposal directing the Commission in 2017 to consider market reforms that would benefit certain baseload generation resources.