FERC, CFTC, and State Energy Law Developments
There are no unimportant North American Electric Reliability Corporation (NERC) reliability standards, but from time to time, NERC and the Regional Entities (Regions) place greater emphasis on certain reliability standards in response to events affecting the grid. With headline-grabbing physical attacks on power substations across the country in recent months, one of NERC’s greatest current priorities is evaluating the effectiveness of its physical security standards, most notably CIP-014.
FERC issued three orders focused on increasing regulations for inverter-based resources (IBRs) in fulfillment of one of its primary goals to protect the reliability of the bulk-power system. FERC ensures this reliability through the North American Electric Reliability Corporation (NERC), an independent Electric Reliability Organization that develops and enforces mandatory reliability standards. The reliability standards are only mandatory for certain entities registered with NERC, but most IBRs are not required to register and therefore are not obligated to follow the reliability standards.
On November 17, 2022, the Office of Enforcement (OE) of the Federal Energy Regulatory Commission (FERC or the Commission) released its annual report on enforcement activities (Report). The Report details the FY 2022 efforts of OE’s three divisions: Division of Investigations (DOI), Division of Audits and Accounting (DAA), and Division of Analytics and Surveillance (DAS).
The energy industry and market participants have provided a variety of comments on what role the Commodity Futures Trading Commission (CFTC) should play in the voluntary carbon markets, in response to a June 2022 request for information on how the CFTC can help enhance the integrity and transparency of the voluntary carbon markets and what aspects of the voluntary carbon markets are susceptible to fraud and manipulation.
The Commodity Futures Trading Commission (CFTC or the Commission) released its enforcement results for fiscal year 2022 on October 20, 2022. The enforcement results detail the 82 enforcement actions the CFTC filed in 2022 and show that orders secured by the Commission imposed more than $2.5 billion in restitution, disgorgement, and civil monetary penalties, either through settlement or litigation.
The Commodity Futures Trading Commission (CFTC) issued orders on September 27, 2022, filing and settling charges against various affiliates of financial institutions for failing to maintain, preserve, or produce records that were required to be kept under the CFTC’s recordkeeping requirements and failing to diligently supervise matters related to their businesses. As FERC also has record retention requirements, we discuss key takeaways on compliance and communication methods in light of the CFTC’s orders.
The Cybersecurity and Infrastructure Security Agency (CISA) issued a request for information (RFI) on the new cyber incident reporting requirements for critical infrastructure owners as required by the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA).
FERC recently issued a notice of proposed rulemaking (NOPR) to expand the existing duty of candor rule by adding a requirement in 18 CFR Part 1 that any entity communicating with FERC or other specified organizations related to a matter that is subject to FERC’s jurisdiction must submit accurate and factual information and must not submit false or misleading information or omit material information. However, exercising due diligence to prevent the submission of false or inaccurate information would be an affirmative defense to violations of the requirement.
As an example of its renewed focus on dam safety, FERC recently issued an order assessing a $600,000 civil penalty to Ampersand Cranberry Lake Hydro LLC for a violation of Ampersand’s hydro license for the 500 kW Cranberry Lake Project No. 9658. The violation is related to Ampersand’s failure to complete known dam safety repairs over multiple years and its loss of property rights needed for the Cranberry Lake Project, located on the Oswegatchie River in St. Lawrence County, New York.
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