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Recently certain policy advocates have suggested that the Federal Energy Regulatory Commission (FERC) should attempt to revitalize the Federal Power Act Section 216 “backstop siting” authority as a means of addressing climate change. Their objective is to facilitate the construction of more long-haul transmission lines from areas with excess renewable generation, so zero-emitting generation can reach more markets.
This post does not comment on that objective. It comments on the backstop siting authority. …
Continue Reading Resurrecting Federal “Backstop Siting” Authority for Interstate Transmission

On November 19, 2020, the Federal Energy Regulatory Commission (“Commission”) issued Opinion No. 569-B, its latest order addressing evaluations of whether a public utility’s return on equity (“ROE”) is just and reasonable under Section 206 of the Federal Power Act (“FPA”). [1]  As described herein, the Commission largely reaffirmed the methodology established in its prior related opinions.  See here.
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Continue Reading FERC Affirms ROE Methodology for Public Utilities

On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “Court”) issued an en banc rehearing order holding that the Natural Gas Act (“NGA”) does not permit the Federal Energy Regulatory Commission (“FERC”) to issue tolling orders for the sole purpose of preventing rehearing requests from being denied by operation of law.  See Allegheny Defense Project, et al. v. FERC, No. 17-1098 (“Allegheny”).  The decision upends a practice that has been used by FERC for decades to delay addressing the merits of requests for rehearing.  Because the NGA and the Federal Power Act (“FPA”) have essentially identical rehearing provisions, Allegheny’s holding is very likely to be extended to rehearing requests under the FPA.
Continue Reading DC Circuit Upends Long-Standing FERC Practice on Tolling Orders

On May 21, 2020, the Federal Energy Regulatory Commission (“FERC”) issued Opinion No. 569-A1 – the latest step in the recent evolution of FERC’s policies governing the determination of public utilities’ base return on equity (“ROE”) under Section 206 of the Federal Power Act (“FPA”). In recent years, FERC has been revising its long-standing policies when addressing complaints challenging the base ROEs of transmission-owning, FERC-jurisdictional public utilities in the ISO New England, Inc. (“ISO-NE”) and Midcontinent Independent System Operator (“MISO”) regions. In particular, FERC has modified its policies regarding the use of various models to estimate ROE to account for various changes in capital market conditions since the 2008-09 recession.
Continue Reading FERC Again Revises Methodology Governing Public Utility Return on Equity: Opinion No. 569-A

On August 27, 2019, the Federal Energy Regulatory Commission (FERC) and North American Electric Reliability Corporation (NERC) issued a White Paper proposing to disclose the names of entities that violate Critical Infrastructure Protection (CIP) standards, while continuing to withhold other details of those violations. This significant change in policy reflects broader issues in FERC’s handling of security information.
Continue Reading FERC’s CIP Information Proposal: Is it Time to Tip the Scale Toward Security?

The Endangered Species Act increasingly plays a larger role in environmental law and the federal permitting process for infrastructure projects. Hunton Andrews Kurth Partner Kerry McGrath and Associate Brian Levey give an inside look at the complex process of obtaining federal authorization for “take” of endangered species.
Continue Reading VIDEO Inside Look: Endangered Species Act (ESA)

On March 21, 2019, the Federal Energy Regulatory Commission (Commission or FERC) held its monthly open meeting. Highlights of the meeting included the following:

  • Electric Transmission Incentives Policy (Docket No. PL19-4-000)
    • The Commission issued a Notice of Inquiry (NOI) seeking comments on the scope and implementation of its electric transmission incentives regulation and policy.
    • Section 219 of the Federal Power Act directs the Commission to use transmission incentives to help ensure reliability and reduce the cost of delivered power by reducing transmission congestion. The Commission issued Order No. 679 in 2006 to establish its approach to transmission incentives and set forth a series of potential incentives that it would consider. The Commission subsequently refined its approach in a 2012 policy statement.
    • The NOI seeks comments in response to questions addressing many matters, including several that have not previously been addressed by the Commission’s transmission incentive policy, including:

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Continue Reading FERC March 2019 Open Meeting Highlights

“According to FERC, it is now commonplace for states to use Section 401 to hold federal licensing hostage.”

These are the words the DC Circuit used in Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, p. 10 (D.C. Cir., Jan. 25, 2019), to describe the state of play on § 401 certifications affecting hydroelectric facility licensing or re-licensing applications. CWA § 401(a)(1) requires, as a prerequisite for federal permits for activities that may result in a discharge into the navigable waters, that affected states certify that any such discharge will comply with applicable, enumerated provisions of the Clean Water Act. But, if a state fails or refuses to act on a request for certification within “a reasonable period of time (which shall not exceed one year) after receipt of such request,” the statute deems the certification requirements waived.
Continue Reading Act or Waive: DC Circuit Construes CWA § 401’s One-Year Deadline for State Action Applications

On January 17, 2019, the Federal Energy Regulatory Commission (Commission) held its monthly open meeting. The first half of the meeting was dedicated to remembrances of Commissioner McIntyre, who passed away earlier this month. The Commission elected to name the Commission meeting room in his honor.

Highlights of the second half of the meeting included:…

On December 20, 2018, the Federal Energy Regulatory Commission (Commission) held its December 2018 open meeting. This was the first meeting for Commissioner Bernard McNamee, who was confirmed by the Senate on December 6, 2018. Given his recent confirmation, Commissioner McNamee voted present on the consent agenda. Commissioner McIntyre was absent due to continuing health issues and did not vote on the consent agenda.
Continue Reading FERC December 2018 Open Meeting Highlights