On May 17, 2018, the Federal Energy Regulatory Commission (Commission) held its May 2018 open meeting. Highlights of the meeting include:

PURPA

In his opening remarks, Chairman McIntyre announced that the Commission would soon be turning to a review of its long-standing policies under the Public Utilities Regulatory Policies Act of 1978 (PURPA). He noted that the Commission had initiated a review of these policies in 2015-2016 and had held a technical conference on certain PURPA issues in 2016.  He has directed Commission staff to restart the initiative so the Commission can determine what, if anything, should be done to improve and update the policies.  The other commissioners were supportive of this initiative.  Commissioner Powelson pushed for an expedited review of the PURPA policies, referencing the previously developed record.  Commissioner Glick indicated that any changes to policies should address issues raised not only by industry, but also by qualifying facility developers.  The commissioners also acknowledged that more substantial changes to PURPA would have to be addressed by Congress.
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On April 19, 2018, the Federal Energy Regulatory Commission (Commission) held its April open meeting. Among other things, the Commission issued major orders concerning the interconnection of large generating (and storage) facilities to the electric transmission grid and price formation in wholesale power markets. It also issued a notice of inquiry (NOI) exploring potential changes to the Commission’s policies governing the certification of new interstate natural gas facilities, addressed in a separate post. The Commission also took action on various other matters.
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In April 2015, EPA issued a final rule governing the control and management of coal combustion residuals (CCR) in surface impoundments used to treat those residuals. As part of its rule, EPA required operators to submit initial closure plans for impoundments and post them on a publicly available website in November 2016. These initial closure plans must contain information related to the method of closure, and are subject to change as operators gather additional information. In June 2017, the Roanoke River Basin Association filed the first ever citizen suit under the CCR Rule.
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Federal agencies that authorize or permit large infrastructure projects, like interstate natural gas pipelines, are often subject to the requirements of the National Environmental Policy Act, and environmental organizations frequently rely on NEPA to challenge a project. The D.C. Circuit recently struck down a decision by the Federal Energy Regulatory Commission to approve the construction and operation of three interstate natural gas pipelines because the Court found defects in FERC’s NEPA analysis. The court’s decision to vacate FERC’s authorization now threatens to shut down the pipelines, including the Sabal Trail pipeline currently supplying natural gas to newly constructed power plants in Florida.
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The House Energy & Commerce Committee is considering revising the Public Utility Regulatory Policies Act (“PURPA”), a 1978 law enacted in the wake of the 1973 oil embargo to promote energy conservation and production by domestic alternative energy sources, including renewables. Why is Congress considering changing it, and what would the proposed revisions do?
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The Federal Energy Regulatory Commission (FERC or the Commission) announced last month that it will review its policies governing the certification process for natural gas pipelines. The announcement was made by FERC Chairman Kevin J. McIntyre on December 21, 2017, in fulfillment of a pledge that he made during his Senate confirmation hearing in September 2017. The format and scope of the review are still being determined.
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On November 16, 2017, the D.C. Circuit heard oral argument in the cases challenging EPA’s 2012 rule allowing states to rely on compliance with the Cross-State Air Pollution Rule (CSAPR) to satisfy electric generating units’ “best available retrofit technology” (BART) requirements for emissions of nitrogen oxides and sulfur dioxide under the Clean Air Act (CAA). The cases are UARG v. EPA, No. 12-1342­ and consolidated cases (D.C. Cir.).
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When Congress enacted the Endangered Species Act (“ESA”) to protect and recover imperiled species and the ecosystems on which they depend, it emphasized the need to strike the proper balance between protecting species and allowing productive human activities. Widespread concern that this balance has been lost has sparked movement within the Trump Administration and Congress to improve the ESA and its implementation. With these key changes, the Trump Administration and Congress could make significant progress to restore what many believe is the ESA’s intended balance between the protection of species and economic growth.
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Fifty years ago, the Supreme Court held that in the Federal Power Act (FPA), Congress had drawn a “bright line, easily ascertained, between federal and state jurisdiction…by making [federal] jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States.” FPC v. Southern California Edison Co. (Colton), 376 U.S. 205, 206-07 (1964). Several recent federal court decisions, including two decisions addressing the implementation of Zero Emissions Credits (ZECs) by New York and Illinois, highlight just how blurred that “bright line” has become in an era where Federal Energy Regulatory Commission (FERC) regulation relies primarily on markets, rather than cost-of-service ratemaking, to ensure just, reasonable and not unduly discriminatory electricity prices. For good measure, these decisions also break new ground on the justiciability of FPA preemption claims brought by private parties in federal court.

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