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FERC, CFTC, and State Energy Law Developments
FERC issued a pair of orders terminating, or upholding the termination of, proceedings designed to evaluate the resiliency of the electric grid on February 18. Both proceedings arose from the US Department of Energy’s (DOE’s) controversial proposal directing the Commission in 2017 to consider market reforms that would benefit certain baseload generation resources.
FERC has issued an order setting aside in part its prior order on New York Independent System Operator, Inc.’s (NYISO’s) buyer-side market power mitigation rules by reversing its decision not to exempt payments received under the Commercial System Distribution Load Relief Programs (CSRPs) submitted for consideration from the calculation of Special Case Resource (SCR) offer floors.
The Federal Energy Regulatory Commission (FERC) announced on February 22 that its Office of Enforcement would examine wholesale natural gas and electricity market activity during last week’s extreme cold weather “to determine if any market participants engaged in market manipulation or other violations.” FERC’s brief press release explained that its examination is part of its existing surveillance program for market participant behaviors in the wholesale natural gas and electric markets.
Is a midstream contract treated the same as other executory contracts in bankruptcy, subject to assumption and rejection pursuant to the US Bankruptcy Code? An executory contract is any contract of the debtor where both the debtor and the contract counterparty have ongoing performance obligations on the date of the bankruptcy filing. A midstream contract, if considered by the court to be an executory contract, may be assumed or rejected under 11 USC § 365.
On February 18, 2021, FERC approved the recertification of Brunner Island, LLC’s status as an exempt wholesale generator (EWG) subject to conditions that limit the economic activity of Brunner unrelated to wholesale power activities.
FERC has issued an order revising its prior order on PJM’s Minimum Offer Price Rule (MOPR) by vacating a footnote that suggested the New Jersey Basic Generation Service default service auction—and by extension other state default service auctions shaped by state resource policy—were not “fuel neutral” or “nondiscriminatory” as required by Commission precedent. As a result of this clarification, resources selected through the New Jersey default service auction will not be presumed to be subject to the MOPR and may be eligible for the MOPR exclusion for independently evaluated, nondiscriminatory, fuel-neutral, competitive state-directed default service auctions.
A LawFlash prepared by our energy lawyers discusses the Federal Energy Regulatory Commission’s Notice of Inquiry regarding the certification of new interstate natural gas transportation facilities and the potential addition of environmental justice as an additional area of examination.
A LawFlash prepared by our energy team discusses likely results of the Texas power outages and blackouts during the recent winter storm, which include federal and state investigations into the outages, federal investigations into commodity and futures price spikes during the storm, force majeure inquiries, and demands for corrective actions to ensure future reliability of the grid system.
On February 17, Texas Governor Greg Abbott took the extraordinary measure of directing the Railroad Commission of Texas (RRC) to restrict out-of-state exports of natural gas produced in Texas through February 21. Noting the unprecedented extreme weather events facing the state, Governor Abbott’s directive seeks to “ensure[] that any natural gas currently in Texas is not sent outside of Texas,” unless it is first offered for sale to in-state power generators. Governor Abbott “mandate[d] that all sourced natural gas be made available for sale to local power generation opportunities before leaving the state of Texas.”
FERC Chairman Richard Glick announced his plans on February 11 to better incorporate environmental justice and equity concerns into FERC’s decisionmaking process.