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FERC, CFTC, and State Energy Law Developments
US Bankruptcy Judge Mary F. Walrath of the District of Delaware entered an order on April 21 in In re Nine Point Energy Holdings, Inc., Case No. 21-10570 (MFW) (Bankr. D. Del. Apr. 21, 2021), finding that Caliber Measurement Services LLC, Caliber Midstream Fresh Water Partners LLC, and Caliber North Dakota LLC (together, Caliber) violated the automatic stay by sending “reservation of rights” letters to third parties that were providing services allegedly in violation of agreements between Caliber and Nine Point Energy Holdings, Inc. and certain of its affiliates (collectively, NPE).
The Commodity Futures Trading Commission (CFTC) announced last week that it has obtained another admission from a trader of violations of the Commodity Exchange Act and CFTC regulations, demonstrating its continued aggressive enforcement of its market anti-manipulation provisions.
On March 18, FERC issued a highly anticipated order denying the petition for declaratory order filed by several electric public utilities addressing the extent to which equity ownership of multiple utility holding companies by certain institutional investors creates affiliation between those holding companies. The institutional investors in question hold specific blanket authorizations to acquire up to 20% of the voting equity in public utilities without seeking transaction-specific authorizations from FERC, in contrast to the existing blanket authorization available to all entities that allows acquisitions below 10% without prior authorization.
FERC issued a Notice Seeking Comments on March 18 on its proposal to collect additional data from market-based rate (MBR) Sellers whose ultimate upstream affiliate(s) own their voting securities under a Federal Power Act Section 203(a)(2) blanket authorization. FERC proposes changes to the MBR Data Dictionary so that the relational database rolling out in 2021 can more accurately reflect ultimate upstream affiliates (or the lack thereof) among Sellers that have an ultimate upstream affiliate that is an institutional investor who acquired their securities pursuant to a Section 203(a)(2) blanket authorization specific to that investor.
The Federal Energy Regulatory Commission (FERC or the Commission) announced during its March 18 open meeting two recent actions to promote greater use of distributed energy resources and demand response. First, FERC has amended regulations on distributed energy resource aggregation in the capacity, energy, and ancillary markets operated by a Regional Transmission Organization (RTO) or an Independent System Operator (ISO). Second, and related to its distributed energy resource amendments, FERC is seeking public comment on whether to revise regulations barring RTOs and ISOs from accepting bids of certain demand response aggregations.
FERC approved revisions to three Critical Infrastructure Protection (CIP) North American Electric Reliability Corporation (NERC) Reliability Standards to expand the scope of the assets subject to supply chain cybersecurity requirements and related obligations. Supply chain cybersecurity continues to be a focus of NERC, energy industry stakeholders, and government regulatory and securities agencies.
Mexico’s Senate approved a set of amendments—sponsored by President Lopez Obrador—to Mexico’s Power Industry Law on March 2, 2021. The amendments aim to improve the market position and profitability of the state-owned utility company, Comisión Federal de Electricidad (CFE), to the detriment of private energy producers, including foreign investors in renewable energy.
FERC issued a final rule on March 18 amending its regulations to establish a one-year period for state agencies or other certifying authorities to act on requests for water quality certifications required for a certificate of public convenience and necessity for a natural gas pipeline or an authorization for an liquefied natural gas (LNG) terminal.
In the wake of the February extreme cold weather that caused record levels of electric generation to be taken offline, the Federal Energy Regulatory Commission (FERC or the Commission) has scheduled a two-day technical conference to discuss issues surrounding the threat to electric system reliability posed by climate change and extreme weather. The virtual technical conference is scheduled for Tuesday and Wednesday, June 1 and 2, from 1:00 pm to 5:00 pm ET.
The Delaware River Basin Commission (DRBC) on February 25, 2021, approved a new regulation formally prohibiting high-volume hydraulic fracturing (HVHF), or fracking, in the Delaware River Basin. The final rule makes permanent a drilling moratorium imposed by the DRBC in 2010.