FERC, CFTC, and State Energy Law Developments

In a landmark rulemaking announced at today’s open meeting, the Federal Energy Regulatory Commission (FERC or Commission) opened participation in organized wholesale markets to electric storage resources. The final rule aims to remove barriers to participation in organized markets, reflecting FERC’s view that existing market participation models can limit the availability of services that resources based on newer technology are capable of providing.

The final rule requires each regional transmission organization (RTO) and independent system operator (ISO) to revise their tariffs to establish a participation model that recognizes the physical and operational characteristics of electric storage resources and facilitates the participation of those resources in the organized markets. FERC staff’s accompanying presentation explained that those participation models must (1) ensure that a resource using the participation model in an organized market is eligible to provide all capacity, energy, and ancillary services that it is technically capable of providing; (2) ensure that a resource using the participation model can be dispatched and can set the wholesale market clearing price as both a wholesale seller and wholesale buyer consistent with existing market rules; (3) account for the physical and operational characteristics of electric storage resources through bidding parameters or other means; and (4) set a minimum size requirement that does not exceed 100 kilowatts. The final rule also requires that the sale of electric energy from the organized markets to an electric storage resource that the resource then resells back to those markets must be at the wholesale locational marginal price. The final rule will take effect 90 days after publication in the Federal Register. RTOs and ISOs will have 270 days after the effective date to submit compliance filings, with an additional 365 days to fully implement the new tariff provisions.

The Kleinman Center for Energy Policy invited energy practice partner Ken Kulak to discuss corporate America’s efforts to deepen their clean energy commitments during a recent episode of podcast Energy Now. During the podcast, Ken discusses increasing corporate commitments to sustainability and strategies for procuring renewable energy, including virtual power purchase agreements.

The Federal Energy Regulatory Commission (FERC) issued an order on January 18 approving four Emergency Operations (EOP) reliability standards: EOP-004-4 (Event Reporting), EOP-005-3 (System Restoration from Blackstart Resources), EOP-006-3 (System Restoration Coordination), and EOP-008-2 (Loss of Control Center Functionality). The newly-approved standards are intended to enhance the requirements for system restoration and related personnel training.

At today’s open meeting, the Federal Energy Regulatory Commission (FERC) proposed to approve new Critical Infrastructure Protection (CIP) Reliability Standards developed by the North American Electric Reliability Corporation (NERC) to protect the cybersecurity of the supply chains for critical utility systems. While recognizing the benefits of using a global supply chain to produce the assets used to operate the bulk electric system, FERC staff’s accompanying presentation recognized that relying on a global supply chain “also enables opportunities for adversaries to directly or indirectly affect the management or operations of generation and transmission companies in a manner that may result in risks to end users, such as through the insertion of counterfeits, unauthorized production, tampering, theft, or insertion of malicious software.”

A Supplemental Report of the US International Trade Commission Regarding Unforeseen Developments reaffirms the commission’s original conclusions and emphasizes that the increased imports of CSPV solar cells and modules were both “unforeseen” and the “substantial cause” of “serious harm” to the domestic industry for these products. This sets the stage for the likely imposition of tariffs and other remedies by the president.

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Nineteen states have asked the Federal Energy Regulatory Commission (FERC) to modify public utilities’ FERC-regulated cost-of-service revenue requirements to reflect the recent reduction in the federal corporate income tax rate. The states claimed that “[t]he Tax Cuts and Jobs Act significantly reduces the marginal federal corporate income tax rate from 35 to 21 percent. Unless the Commission adjusts… revenue requirements to reflect this federal corporate income tax reduction, utility customers nationwide will be overpaying for their electric and gas service by hundreds of millions of dollars.”

According to the states, the level of current corporate income tax expense incorporated into public utilities’ rates could render those rates unjust and unreasonable, and if FERC does not proactively reduce those rates, a significant amount of money would need to be refunded to customers in the future.

Over a half dozen natural gas rate proceedings are expected to be initiated at the Federal Energy Regulatory Commission in 2018, many of which will raise issues that are historically addressed in pipeline general rate case proceedings, as well as novel issues such as the impact of the new tax laws on rates and the inclusion of a pipeline modernization tracker in rates.

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On December 15, 2017, the California Court of Appeal, Second Appellate District, issued its opinion in Southern California Gas Co. v. Superior Court of Los Angeles County. In reversing the lower court’s decision, the appeals court concluded that Southern California Gas Co. (SoCalGas) could not be held liable in tort for economic damages in the absence of a transactional relationship unless its actions caused personal injury or property damage. This case underlines the importance of familiarity with the state legal protections that can shield utilities from claims for damages due to the indirect harms stemming from major service or infrastructure disruptions.

The Court of Appeal held that SoCalGas owed no duty to the business plaintiffs in the class action, who “claimed no injury to person or property. Instead, they alleged the gas leak and subsequent relocation of [nearby] residents caused crushing economic loss to their businesses.” The court explained that, under California law, “[g]enerally a defendant owes no duty to prevent purely economic loss to third parties under any negligence theory.” The appeals court determined that none of the various exceptions to this general rule applied to SoCalGas’s actions because those exceptions generally held true only when there was a direct injury to persons or property. Accordingly, SoCalGas could not be held liable to the plaintiffs because no injury to persons or property occurred and no transactional relationship existed that was intended to “directly” affect the plaintiffs.

On January 8, 2018, the Federal Energy Regulatory Commission (FERC) issued an order rejecting the US Department of Energy’s (DOE’s) proposed changes to organized market rules that would have permitted certain baseload resources with at least 90 days of on-site fuel to be paid a cost-of-service rate rather than relying on compensation under market-determined prices. DOE’s September 29, 2017 proposal was focused on ensuring the “resilience” of energy service in these organized markets, and was widely viewed as benefitting primarily coal and nuclear generation.

In its order, FERC concluded that it lacked the record necessary for FERC to take the requested action to order changes to existing market rules under Section 206 of the Federal Power Act. Under that statute, FERC must first find that the existing rates are unjust and unreasonable and then replace it with a rate that is just and reasonable. According to FERC, the DOE proposal failed to satisfy either prong. First, FERC explained that none of the comments submitted by the RTOs/ISOs indicated any threat to resilience posted by past or future generator retirements. Second, FERC explained that allowing any resource that met DOE’s resiliency criteria to receive a cost-of-service rate would not be just and reasonable because that payment would not be tied to the need for the facility or the cost to the system of providing that payment.

As bitcoin and other cryptocurrency values continue to rise, the sheer number of cryptocurrency transactions rises as well. By now, almost 500,000 unique bitcoin transactions are taking place every day, with the number increasing exponentially over the last six months of the year.

So what does cryptocurrency have to do with what is often viewed as a very staid and traditional electric utility business? On the surface, the cryptocurrency and electric businesses could not seem more different. The electric utility business began in the 19th century, while bitcoin is less than a decade old and internet-dependent. But in reality, the operability of bitcoin and other cryptocurrencies relies on massive computing power distributed around the world because of the nature of the technology that makes cryptocurrencies possible. And that computing power requires massive amounts of always-on electric power.