FERC, CFTC, and State Energy Law Developments

The US Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) issued Version 3.0 of its guidance on April 17 on identifying essential critical infrastructure workers amid the coronavirus (COVID-19) pandemic. The revised guidance adopts the latest safety recommendations from the Centers for Disease Control and Prevention (CDC) and builds on prior versions of the guidance by providing an expanded breakdown of job roles that CISA considers essential, particularly in the energy sector. The guidance also addresses the manner in which localities can ensure that essential workers can travel to and perform their jobs.

Recognizing that employers of essential workers have had difficulty ensuring that those workers can physically travel as needed for their jobs, the revised guidance urges that such workers be “exempted from curfews, shelter-in-place orders, and transportation restrictions or restrictions on movement.” The guidance also urges local governments to establish guidance that lets essential workers cross jurisdictional boundaries with neighboring jurisdictions.

Nevada became the sixth state to adopt an energy storage procurement goal on March 12. The Public Utilities Commission of Nevada (PUCN) adopted a regulation in Order No. 44671 that establishes biennial energy storage procurement goals of 100 MW by December 31, 2020, and increasing to 1 GW by 2030. The new regulation is consistent with a 2018 Brattle Group study commissioned by the PUCN that determined a 1 GW level of deployment by 2030 would be cost-effective for Nevada. Nevada utilities will now have to include a plan to meet the biennial storage targets as part of their integrated resource plans and submit progress reports to the PUCN starting in 2022. NV Energy is already on track to meet those targets with the utility’s plans to bring nearly 1.2 GW of new solar energy projects to Nevada and an additional 590 MW of energy storage capacity by 2024. 

Functioning critical infrastructure is crucial during the response to the coronavirus (COVID-19) emergency for public health and safety reasons. And as noted in the Coronavirus Guidelines for America issued on March 16, US President Donald Trump has recommended that workers in critical infrastructure industries have a “special responsibility” to maintain normal work schedules. The Cybersecurity and Infrastructure Security Agency (CISA) on March 19 issued guidance on defining the Essential Critical Infrastructure Workforce. That guidance explicitly discusses workers in the nuclear and electric industries.

A declaratory order issued by the Federal Energy Regulatory Commission (the Commission) on January 30 in Docket No. RP20-41-000 grants pipeline developers greater certainty in planning and siting construction. The order was issued after a split 2-1 vote. It may also significantly reduce pipeline developers’ expenses by avoiding costly disputes with states over the possession of state-owned land. The order resulted from a petition filed by a company (Pipeline) seeking to construct an approximately 116-mile greenfield natural gas pipeline designed to provide firm natural gas transportation service from receipt points in the eastern Marcellus Shale region, in Luzerne County, Pennsylvania, to delivery points in New Jersey and Pennsylvania (the Project). The petition requested the Commission’s interpretation of the scope of the eminent domain authority in Section 7(h) of the Natural Gas Act (NGA).

In November 2019, New Jersey Governor Phil Murphy issued Executive Order 92 increasing the state’s offshore wind generation goal from 3,500 MW by 2030 to 7,500 MW by 2035. To date, the New Jersey Board of Public Utilities (BPU) has approved only one 1,100 MW offshore wind project, but is expected to conduct additional solicitations in 2020 and 2022 and approve approximately 2,400 MW of additional offshore wind generation.

New Jersey Governor Phil Murphy signed S. 2252 into law on January 17, 2020. The bill takes steps to advance electric vehicle (EV) goals proposed in the draft New Jersey Energy Master Plan (which was released in June 2019 but has not been posted in final form). By enacting this legislation, New Jersey joins several states, including Oregon and Colorado, that have taken action to encourage EV adoption in recent months.

The bill establishes statewide goals for EV growth in New Jersey and the development of statewide charging infrastructure, each of which will be supported by $300 million in state incentives over the next decade through programs to be established by the New Jersey Board of Public Utilities (BPU). The bill also advances electrification of the state’s transportation fleet by requiring state agencies to escalate purchases of EVs.

The Federal Energy Regulatory Commission (FERC) on December 19, 2019, directed PJM Interconnection to extend its minimum offer price rule (MOPR) from new natural gas–fired electric generators to also cover any generator that receives or is entitled to receive certain types of state subsidies. The rule aims at preserving competitive capacity auctions by preventing resources that receive subsidies from submitting bids that would otherwise be uneconomical—and therefore likely to “capture” a PJM capacity award based on a below-market capacity rate—if not for state support. The order means that existing or planned resources that expected to clear capacity markets with rates made economical by state subsidies will have to identify alternate strategies to generate revenue; so too will states seeking to promote the development or prevent the retirement of preferred but noncompetitive resources.

In an effort to address anticipated electricity shortages and reliability challenges in California, the California Public Utilities Commission (CPUC) voted on November 7 to authorize the procurement of 3,300 MW of energy by 2023. The CPUC also intends to seek extensions of certain compliance deadlines from the State Water Resources Control Board for almost 4,800 MW of gas generation units due to retire soon because they use ocean water for so-called “once-through cooling,” which can have a detrimental impact on marine life.

For more details on the CPUC’s actions, read the full LawFlash.

In October 2018, Pennsylvania Governor Tom Wolf signed into law Act 120 of 2018 (Act 120), which grants the Pennsylvania Public Utility Commission (PaPUC) additional authority to support investor-owned water utilities’ efforts to protect Pennsylvania residents from lead entering their drinking water from customer-owned lead service lines. On October 3, the PaPUC, in its first exercise of this authority, approved Pennsylvania-American Water Company’s (PAWC’s) comprehensive plan for replacing customer-owned lead service lines in its service territory and established a working group to develop recommendations for the uniform implementation of Act 120 by all water companies in the commonwealth.