FERC, CFTC, and State Energy Law Developments
In an article featured in our global energy industry newsletter, Empowered, lawyers Carl Valenstein and Jonathan Wilcon analyze the implications of the Jones Act on offshore wind development. While the authors acknowledge that many see Jones Act compliance as a “potential bottleneck” for the offshore wind industry’s progress, they discuss strategies that will permit Jones Act compliance and offshore wind development in the United States.

The Federal Energy Regulatory Commission recently issued a final rule, Order No. 880, revising its hydropower project inspection and safety regulations. The updates revise part 12 of FERC’s regulations and conclude an approximately year and a half of rulemaking in Docket No. RM20-9.

The Federal Register recently published the US Department of Energy’s (DOE) notice of Request for Information (RFI) seeking public input on energy sector supply chains. The RFI requests that stakeholders provide comment on a wide variety of issues concerning supply chains of energy and related technologies.
US congressional Democrats released the latest version of H.R. 5376—better known as the Build Back Better Act—late last week, hoping to advance a $1.85 trillion spending package after months of deadlock.

FERC recently issued a notice of extension of time further extending, by three months, the compliance dates for FERC’s new market-based rate (MBR) relationship database filing requirements under Order No. 860. This extension follows multiple prior extensions. Meeting these new deadlines is required of all public utilities who either currently hold MBR authority or will request MBR authorization to engage in sales for resale of electric energy, capacity, or ancillary services at marked-based or negotiated rates. Given the complexity of the new reporting requirements, the deadlines extension will provide valuable additional time to entities to prepare their baseline submission.

FERC recently issued an order to show cause and notice of proposed penalty to Ampersand Cranberry Lake Hydro LLC for a violation of Ampersand’s hydro license for the Cranberry Lake Project No. 9658 (Cranberry Lake Project). FERC ordered Ampersand to show cause as to why it should not be found to have violated Article 5 of the project license by failing to retain possession of all project property covered by the license, and to show cause as to why it should not be assessed a civil penalty of $600,000 for that violation.

In a notice issued on September 29, 2021, FERC stated that it did not act on PJM Interconnection LLC’s (PJM’s) proposed reforms to the application of the Minimum Offer Price Rule (MOPR) because the Commissioners are divided two against two as to the lawfulness of the change (Notice). Because FERC did not act within 60 days of PJM’s filing under Section 205 of the Federal Power Act, PJM’s proposal became effective by operation of law. PJM’s revisions “focus” the applicability of the MOPR and will allow certain resources that receive state support to participate in PJM’s capacity auction without being subject to the MOPR, significantly narrowing the scope of the prior rule.

FERC issued an advance notice of proposed rulemaking (ANOPR) in Docket No. RM21-17, seeking comment on the potential need for reform of Commission regulations necessary to improve regional transmission planning and cost allocation and generator interconnection processes. Comments and reply comments are due 75 days and 105 days, respectively, after publication in the Federal Register.
On June 11, 2021, the US Department of the Interior’s (DOI’s) Bureau of Ocean Energy Management (BOEM) issued a proposed sale notice to sell commercial wind energy leases on the Outer Continental Shelf (OCS) in the New York Bight. The New York Bight is an area of shallow waters located between Long Island and the New Jersey coast that is adjacent to the greater metropolitan tristate area, which is home to more than 20 million people. BOEM proposes to offer for sale eight lease areas and to complete the lease sale by holding a public auction.

Bill Kissinger, Ella Foley Gannon, and Rick Rothman discuss recent US regulatory and legislative developments addressing climate change and renewable energy. They discuss the Biden-Harris administration's focus on setting goals to address climate change and highlight the success in California as a possible model for the United States. Read the Law360 article.