FERC’s October 5 Order on Rehearing in Equitrans, L.P. provides a good reminder to market participants that the commitments made in a precedent agreement may subsequently be rejected by FERC when the negotiated rate transportation agreement is filed for Commission approval. Equitrans, L.P. (Equitrans) filed a non-conforming negotiated rate transportation agreement that it entered into with EQT Energy, LLC (EQT Energy) for new service on Equitrans’ Ohio Valley Connector Project. The agreement included the following three non-conforming provisions for service:

  1. A provision that gave EQT Energy the right to participate in any future open season for an expansion of the system with the benefits and designation of a Foundation Shipper (the Foundation Shipper provision);
  2. A provision that gave EQT Energy most-favored nation status, which would allow EQT Energy to match the decreased negotiated rate if Equitrans contracts for a lower negotiated rate with another shipper; and
  3. A provision that imposed stricter creditworthiness requirements for EQT Energy.

In a declaratory order issued on October 4, the Federal Energy Regulatory Commission (FERC) clarified that prior approval under Section 203 of the Federal Power Act is not required for certain types of tax equity investments, substantially simplifying and expediting regulatory requirements.

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The North American Electric Reliability Corporation (NERC) filed a petition on September 26 requesting approval from the Federal Energy Regulatory Commission (FERC or the Commission) for a suite of Reliability Standards that focus on vulnerabilities in vendor products and services and would regulate the utility procurement process.

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On September 29, Secretary of Energy Rick Perry invoked rarely used statutory authority to direct the Federal Energy Regulatory Commission to initiative a rulemaking to enable generation assets in RTOs and ISOs to receive payments for reliability and resiliency benefits that DOE views as uncompensated under current market rules.

If the proposed rules are adopted, they could provide significant economic support to coal and nuclear generation in organized markets.

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A LawFlash prepared by Morgan Lewis’s environmental practice lawyers provides answers to common questions companies may have concerning their environmental obligations after Hurricane Irma.

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On September 12, 2017, FERC and NERC released a joint statement and guidance encouraging ongoing interutility cooperation among all utilities in response to Hurricane Irma, which ravaged areas in Florida and Georgia, neighboring states, Puerto Rico, and US territories in the Caribbean. The statement emphasized that the utility response to Hurricane Irma will likely be among the largest industry restoration efforts in US history. In it, FERC and NERC encourage utilities to lend personnel skilled in vegetation management to those utilities in need as a result of the hurricane.

On September 11, 2017, FERC granted a one-month extension for utilities and others affected by Hurricanes Harvey and Irma to submit certain filings. The extension applies to:

  • FERC-required form submissions,
  • nonstatutory filings such as compliance filings and deficiency letter responses, and
  • filings required by FERC jurisdictional tariffs.

For those filings, entities affected by the hurricanes need not file until after October 11, 2017.

Critically, the extension does not apply to those filings with deadlines imposed by statute. For entities whose filings are not covered by the extension, FERC's order notes that they may seek individual extensions of time where permitted under the applicable statute.

Please visit Morgan Lewis's Hurricane Recovery Resources center for this and other guidance on the complex legal and business implications of Hurricanes Harvey and Irma.

Our employee benefits and tax lawyers have prepared a LawFlash that discusses IRS Notice 2017-48, which significantly expands the tax benefits of certain charitable cash contributions for hurricane relief. The LawFlash also outlines how companies can set up charitable leave donation programs to allow employees to contribute accrued leave that can be converted to cash contributions for charities aiding the victims of Hurricane Harvey.

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