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FERC, CFTC, and State Energy Law Developments

The Federal Energy Regulatory Commission (FERC or the Commission) Office of Enforcement (OE) issued its 2020 Report on Enforcement on November 19. The report provides a review of OE’s activities during fiscal year 2020 (FY 2020), covering October 1, 2019, through September 30, 2020. At bottom, FERC opened and closed significantly fewer investigations this year as compared to the past three, likely due to the ongoing coronavirus (COVID-19) pandemic.

The US Department of Energy (DOE) has released the Hydrogen Program Plan, a strategic framework that intends to “accelerate research, development, and deployment (RD&D) of hydrogen and related technologies in the United States.” The plan communicates DOE’s plan to focus on conducting coordinated RD&D activities to enable the adoption of hydrogen across multiple domestic applications and sectors. DOE will implement those efforts through the DOE Hydrogen Program, an existing program that facilitates hydrogen research and development activities and that spans multiple DOE offices.

Following significant pushback from the regulated community, FERC and NERC Staff jointly announced in a new white paper that filings and other submissions to FERC describing violations of cybersecurity reliability standards would be entirely nonpublic. Under the revised approach, all cybersecurity noncompliance information will be considered CEII and not disclosed in response to FOIA requests.

This was a significant change from last year, when in a heavily criticized white paper, FERC and NERC Staff proposed to publicize the names of utilities found to have violated cybersecurity reliability standards, along with the financial penalty imposed and the reliability standards (but not requirements) that were violated. Under that approach the specific circumstances of the violations would have been nonpublic.

Read our recent LawFlash analyzing the Federal Energy Regulatory Commission’s (FERC’s) Order No. 2222, which directs wholesale electric market operators to facilitate the participation of distributed energy resource (DER) aggregators under one or more participation models. The new rule vastly expands the opportunities for DERs, such as grid-enabled water heaters, small solar installations, and electric vehicles, to aggregate and compete alongside traditional generators for a slice of wholesale market revenues. ISOs/RTOs will have 270 days from the date the rule is published in the Federal Register to submit their compliance filings and propose implementation dates for their regions.

Read the full LawFlash.

As New York seeks a path to achieving its greenhouse gas (GHG) emissions goals, the New York Public Service Commission (NYPSC) recently approved an order authorizing New York’s electric utilities to spend up to $701 million to develop “make-ready” sites for electric vehicle (EV) supply equipment (EVSE) and related infrastructure (i.e., charging stations). The program is referred to as the “Make-Ready Program.”

New York is attempting to reduce its GHG emissions to 40% below 1990 levels by 2030, and 80% below 1990 levels by 2050. Electrifying the state’s transportation sector is viewed as integral to achieving that goal, as the transportation sector has a higher GHG output than any other sector of New York’s economy.

FERC has issued an order extending the blanket waivers of all requirements to hold meetings in person and/or to provide or obtain notarized documents in open-access transmission tariffs through January 29, 2021. The order continues the blanket waivers first issued on April 2, 2020, in response to requests from regulated entities, which were set to expire on September 1, 2020. FERC cites the coronavirus (COVID-19) national emergency proclamation issued by President Trump on March 13, 2020; the continued risk to health and safety currently presented by personal contact; and guidance from public health officials on social distancing as good cause for the waivers.

Our litigation and environmental teams recently discussed the DC Circuit’s ruling that rejected a challenge to the EPA’s listing of a site on the Superfund National Priorities List (NPL). This decision will inform listing decisions at other sites with subsurface contamination, and could lead to the listing of more industrial sites on the NPL. It also serves as a reminder that parties must evaluate and raise with EPA in the preliminary assessment and site listing process all potential challenges to EPA’s listing decision.

Read the full Lawflash

New York and New Jersey have announced the largest offshore wind solicitations in the United States. The solicitations—2,500 megawatts (MW) by New York and 2,400 MW by New Jersey—would add nearly 5 gigawatts of offshore wind capacity.

The offshore wind programs of these two states are among the most ambitious in the country. New York has a goal of developing 9,000 MW of offshore wind by 2035, while New Jersey is targeting the development of 7,500 MW of offshore wind by 2035. To date, each state has conducted one solicitation to procure large-scale offshore wind projects.

FERC has issued a final rule, Order No. 872, revising the Commission’s regulations governing qualifying small power producers and co-generators (collectively, qualifying facilities or QFs) under the Public Utility Regulatory Policies Act of 1978 (PURPA). The Commission stated that the rule addresses significant changes that have occurred in the US energy markets and the Commission’s desire to modernize its PURPA regulations to protect consumers and preserve competition while meeting the Commission’s statutory obligations. The revisions will have significant implications for all utilities required to purchase the output of QFs, as well as generators that rely on PURPA rates and obligations. The final rule takes effect 120 days after publication in the Federal Register.

FERC recently dismissed the New England Ratepayers Association’s petition for declaratory order requesting FERC to exert jurisdiction over certain net-metering transactions. The decision leaves some key legal and jurisdictional questions about net metering unanswered. For now, FERC’s existing view that net-metering transactions are subject to state commissions’ retail sales jurisdiction, unless a customer sells more power back to the utility than it consumes in the applicable retail billing period (usually one month), remains intact.

Read the full LawFlash >>