FERC, CFTC, and State Energy Law Developments

In Order No. 714, FERC mandated that all entities begin submitting tariffs and related agreements electronically. This directive departs from a long-established policy of submitting hard copies of tariffs and related agreements for Commission approval. FERC's new eTariff program will take effect on April 1, 2010.

During this January webcast, presenters explained FERC's eTariff mandate and addressed issues such as who will be subject to the eTariff requirement, what will be required, how FERC will implement its eTariff program, and what are the important dates for implementation.

A recording of the webcast is available.

On January 11, the Nuclear Regulatory Commission (NRC) and the North American Electric Reliability Corporation (NERC) published a Memorandum of Understanding (MOU) regarding the enforcement of NRC cyber security regulations and NERC Critical Infrastructure Protection (CIP) Reliability Standards at commercial nuclear power plants. This MOU provides further detail on what the NRC and NERC view as their separate responsibilities regarding cyber security at nuclear power plants, and explains how they will coordinate execution of these responsibilities going forward.  Read more…

Earlier today, the Federal Energy Regulatory Commission (FERC) approved a stipulation and consent agreement with Florida Power and Light Company (FPL) that included a $25 million penalty to be paid By FPL to resolve potential violations of mandatory Reliability Standards related to the February 26, 2008 Florida Blackout. That event resulted in the loss of 3,650 MW of customer load, and left some noninterruptible customers without power for more than two hours.

The agreement, which contains one of the largest civil penalties ever approved By FERC, is also the first settlement resulting from a reliability investigation headed By FERC enforcement staff, and follows FERC’s public announcement that it—rather than the North American Electric Reliability Corporation (NERC) or the Florida Reliability Coordinating Council, the two entities usually responsible for the enforcement of Reliability Standards in Florida—would investigate the blackout.

Read more…

On September 30, the U.S. Environmental Protection Agency (EPA) issued a proposal describing how it intends to regulate greenhouse gas (GHG) emissions under the Clean Air Act’s (CAA) Title V and Prevention of Significant Deterioration (PSD) permitting programs. EPA’s proposal, if adopted, would establish specially tailored emission thresholds for the application of the Title V and PSD programs to sources that emit GHGs. EPA estimates that the proposed thresholds would apply to sources with nearly 70% of the national GHG emissions from stationary sources and result in GHG-related permit requirements for approximately 14,000 facilities, including approximately 3,000 sources that previously have not been subject to the Title V program.  Read more…

On September 22, the Administrator of the U.S. Environmental Protection Agency (EPA) issued the Mandatory Reporting of Greenhouse Gases (GHGs) Rule. EPA had proposed this rule on March 10 of this year and solicited comments from interested parties. The final rule imposes substantial requirements on various entities to measure and then report to EPA their greenhouse gas emissions. Facilities subject to the new regulations are required to begin collecting data on their GHG emissions in January 2010, with first reports due to be submitted to EPA By March 31, 2011. Two significant changes in the final rule include a mechanism for covered facilities to remove themselves from the program and a reduction in the number of industries immediately subject to the rule.  Read more…

In June 2009, FERC issued Order No. 697-C, an order on rehearing of its orders issuing regulations applicable to public utilities authorized to sell electric capacity, energy, and ancillary services at market-based rates.

Order No. 697-C imposes significant new reporting requirements on public utilities with market-based rate authority. Our Energy Practice presented a webcast on this topic and provided a detailed overview of Order No. 697-C’s reporting requirements.

Topics included:

  • Quarterly reporting of generating capacity site acquisition, to begin October 30, 2009
  • Annual reporting of land acquisition for generation development, to begin January 1, 2010
  • Other reporting requirements

The audio to the webcast may be heard here, and the presentation may be viewed here.

Last week, the North American Electric Reliability Corporation (NERC) released a revised draft of the proposed procedures that Responsible Entities would use to request a Technical Feasibility Exception (TFE) for Critical Infrastructure Protection (CIP) Reliability Standards. The revised procedures make several significant revisions to the draft TFE procedures released for comment this spring.

Under the revised TFE procedures, the responsibility for reviewing and approving TFE requests has been shifted back to the Regional Entities. Any Responsible Entity seeking a TFE must submit an electronic form to the appropriate Regional Entity containing the basic information regarding the TFE, including the relevant CIP Reliability Standard Requirement eligible for a TFE, the basis and justification for the request, the proposed mitigating measures, and the schedule for achieving Strict Compliance. The templates on which Responsible Entities will submit this information should be available from the Regional Entities beginning on September 17, 2009.  Read more…

On August 6, the Federal Trade Commission (FTC) issued a Final Rule prohibiting market manipulation in the petroleum industry. Under the terms of the Final Rule, persons that engage in fraud or deceit in wholesale petroleum markets or omit material information that is likely to distort petroleum markets are subject to significant civil penalties. In issuing the Final Rule, the FTC joins the Federal Energy Regulatory Commission and the Commodity Futures Trading Commission in regulating market manipulation in the energy industry.

The issuance of the Final Rule concludes a two-year process that was authorized By Title VIII of the Energy Independence and Security Act (EISA) of 2007. Under EISA, the FTC is authorized to issue any rule or regulation that prohibits any person from engaging in manipulative or deceptive behavior in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale. Accordingly, the FTC’s Final Order prohibits any person from (a) knowingly engaging in any act that operates as a fraud or deceit upon any person; and (b) intentionally failing to state a material fact that renders a statement made By that person misleading if the omission distorts or is likely to distort market conditions. In practice, paragraph (i) of the Final Rule prohibits fraudulent or deceptive overt conduct while paragraph (ii) of the Final Rule prohibits material omissions that are likely to distort market conditions.  Read more…

Today, the Federal Energy Regulatory Commission (FERC) and the Minerals Management Service (MMS) jointly issued a guidance document addressing many issues relating to the development and implementation of hydrokinetic and hybrid energy projects located on the Outer Continental Shelf (OCS). The issuance of the guidance document serves as an outline for entities seeking to develop hydrokinetic projects on the OCS, building on the Memorandum of Understanding issued By FERC and MMS on April 9, 2009.

The guidance document provides a succinct roadmap for nonfederal entities seeking to develop and implement hydrokinetic energy projects on the OCS. Such entities must obtain a lease from MMS authorizing access to the potential project site. After receiving a lease from MMS, entities are then required to obtain a license from FERC authorizing the construction and operation of the proposed project. As described By the guidance document, hydrokinetic projects are projects that generate electricity from the motion of waves or the unimpounded flow of tides, ocean currents, or inland waterways. The OCS encompasses all submerged lands, subsoil, and seabed lying between approximately three nautical miles and 200 nautical miles from a state shore.  Read more…

On July 29, U.S. Secretary of Energy Steven Chu announced two solicitations that are part of the Department of Energy’s (DOE’s) provision of several billion dollars in loan guarantees for various renewable energy initiatives. Collectively, funding for the DOE loan guarantee program announced By Secretary Chu is authorized and appropriated pursuant to the terms of the American Recovery and Reinvestment Act of 2009 (ARRA) and the Supplemental Appropriations Act of 2009 (FY09 Appropriations Act). The loan guarantee solicitations, which have been widely anticipated since President Barack Obama signed ARRA in February 2009 and the FY09 Appropriations Act in June 2009, are designed to promote energy transmission infrastructure projects and energy projects that employ innovative technologies.  Read more…