Below are summaries of the agenda items for the Federal Energy Regulatory Commission’s February 17, 2022 open meeting, pursuant to the sunshine notice released on February 10, 2022. Item E-11 has not been summarized due to omission from the agenda.
In this issue…
- Electric Items
- Gas Items
- Hydro Items
- Certificate Items
Electric
E-1 – Implementation of Dynamic Line Ratings (Docket No. AD22-5-000). Agenda item E-1 may initiate a new rulemaking proceeding relating to the Implementation of Dynamic Line Ratings. The new docket may build on the formal record established in the rulemaking proceeding in Docket No. RM20-16-000, which led to the issuance of Order No. 881 by the Commission on December 16, 2021. Order No. 881 revised regulations, pursuant to the Open Access Transmission Tariff and the Federal Power Act (FPA), in order to improve the accuracy and transparency of electric transmission line ratings.
E-2 – New York Independent System Operator, Inc. (Docket No. ER20-1718-002). On April 30, 2020, New York Independent System Operator, Inc. (NYISO) submitted proposed revisions to its Market Administration and Control Area Services Tariff, pursuant to section 205 of the FPA. NYISO asserted that the Tariff revisions would enhance the Part A Exemption Test under its buyer-side capacity market mitigation measures. Namely, NYISO aimed to account for the potential shift in resource mix during the next decade and beyond and reflect the policies of New York state incentivizing the deployment of new clean energy generation and related goals. On September 4, 2020, the Commission issued an order rejecting the proposed Tariff revisions, finding a lack of justification for prioritizing the evaluation of Public Policy Resources before non-Public Policy Resources regardless of cost. On October 5, 2020, multiple parties, including NYISO, filed respective requests for rehearing of the September 4 order, stating that the Commission erred in its determination and mischaracterizes the justness and reasonableness of the proposed Tariff revisions. On January 4, 2021 and January 11, 2021, NYISO and the New York Public Service Commission filed respective Petitions for Review of the September 4 order in the US Court of Appeals for the District of Columbia Circuit. Agenda item E-2 may be an order on the requests for rehearing.
E-3 – The Dayton Power and Light Company (Docket No. ER20-1068-003). On February 25, 2020, pursuant to sections 205 and 219 of the FPA, Dayton Power and Light Company (Dayton Power) submitted a request for approval of certain transmission rate incentives for investment in transmission projects that Dayton Power asserted are needed for reliability (Incentive Rate Application). Dayton Power stated that the magnitude of such costs would be financially burdensome and therefore requested Commission approval to implement the CWIP incentive which would apply to a portion of expenses already incurred. Specifically, Dayton Power asserted that, by joining a Regional Transmission Organization (RTO), it should receive the incentive adder on its return on equity and the membership represents the choice that Congress intended with Section 219 of the FPA. On August 17, 2020, the Commission issued an order accepting the Incentive Rate Application in part and also rejecting the Incentive Rate Application in part. On September 16, 2020, Dayton Power filed a request for rehearing and clarification of the August 17 order. On October 16, 2020, the Commission conducted a paper hearing to evaluate the outstanding material issues in the proceeding, by which several parties filed initial briefs; reply briefs were filed on November 16, 2020. On November 19, 2020, the Commission issued an order addressing arguments raised on rehearing and setting aside prior conclusions furnished in the August 17 order. On December 8, 2020, Dayton Power filed a request for clarification or rehearing of the November 19 order, namely requesting that the Commission clarify that the Construction Work In Progress (CWIP) incentive is prospectively applied by allowing rate base treatment beginning as of May 3, 2020 and including 100 percent of prudently incurred costs of Transmission Expansion Plan (TEP) projects before May 3, 2020. On February 18, 2021, the Commission issued an order on the December 8 request, reversing prior order language and stating that the CWIP incentive may apply to the portion of expenses that have already been incurred for approved TEP projects. On July 15, 2021, the Commission issued an order on the paper hearing, as commenced on October 16, 2020, ultimately finding that Dayton Power does not qualify for the RTO incentive adder. On November 22, 2021, Dayton Power filed a Petition for Review of the July 15 order in the US Court of Appeals for the District of Columbia Circuit. Agenda item E-3 may be an order on the outstanding material issues relating to Dayton Power and the Petition.
E-4 – Independent Market Monitor for PJM v. PJM Interconnection, L.L.C. (Docket No. EL19-47-002); Office of the People’s Counsel for District of Columbia, Delaware Division of the Public Advocate, Citizens Utility Board, Indiana Office of Utility Consumer Counselor, Maryland Office of People’s Counsel, Pennsylvania Office of Consumer Advocate, West Virginia Consumer Advocate Division, and PJM Industrial Customer Coalition v. PJM Interconnection, L.L.C. (Docket No. EL19-63-002); PJM Interconnection, L.L.C. (Docket Nos. ER21-2877-001, ER21-2444-001). On February 21, 2019, Monitoring Analytics, LLC (IMM), acting in its capacity as the Independent Market Monitor for PJM Interconnection, LLC (IMM), filed, pursuant to Rule 206 of the Commission's Rules and Practice and Procedure, a formal complaint against PJM Interconnection, L.L.C. (PJM), requesting that the Commission direct PJM to revise the expected number of Performance Assessment Intervals (PAI) used to set the default Market Seller Offer Cap (MSOC) in Reliability Pricing Model (RPM) auctions to a level consistent with a reasonable and supportable expectation of PAI. IMM claimed that the current PAIs result in an MSOC that is overstated. On April 15, 2019, the Office of the People's Counsel for the District of Columbia, Delaware Division of the Public Advocate, Citizens Utility Board, Indiana Office of Utility Consumer Counselor, Maryland Office of People's Counsel, Pennsylvania Office of Consumer Advocate, West Virginia Consumer Advocate Division, and PJM Industrial Customer Coalition (collectively, the Joint Consumer Advocates) filed, pursuant to Rule 206 and 212 of the Commission's Rules of Practice and Procedure, a formal complaint against PJM alleging that the current MSOC used in the RPM Base Residual Auction (BRA) is unjust and unreasonable. The Joint Consumer Advocates also asked that their complaint be consolidated with the IMM's complaint. On March 18, 2021, the Commission issued an order granting complaints and ordering additional briefing, principally finding that it is no longer just and reasonable for PJM to use 360 for the Expected PAI in the default offer cap formula, and subsequently, initiate a further briefing to determine the appropriate replacement rate. Initial briefs were filed by the respective parties on or by May 3, 2021; reply briefs were filed on or before June 10, 2021. On July 16, 2021, PJM submitted a request for waiver of certain pre-auction deadlines in the event that the Commission establishes a lower value for the default offer cap. On September 2, 2021, the Commission issued an order setting the replacement rate and accepting the waiver request, finding that PJM acted in good faith to ensure the rules governing the forthcoming 2023-24 BRA are transparent and known in advance to market participants. On October 4, 2021, multiple parties filed respective requests for rehearing of the September 2 order, alleging that the Commission eliminated the default MSOC without providing a reasonable basis for doing so, as well as failing to remedy the Net Avoidable Cost Rate formula utilized in unit-specific review. On November 19, 2021, the IMM submitted a motion for clarification relating to its ability to update the net energy and ancillary service (EAS) offsets used in the calculation of unit-specific offer caps. On January 20, 2022, the Commission issued an order dismissing the motion brought forward by the IMM, finding that, due to a separate proceeding where the Commission issued an order directing PJM to revert to back-looking net EAS revenue offsets for the 2023-24 BRA, the matter raised is moot. Agenda item E-4 may be an order on the requests for rehearing of the September 2 order.
E-5 – Duke Energy Carolinas, LLC (Docket Nos. ER21-2900-000, ER21-2900-001, ER21-2900-002, ER21-2900-003). On September 17, 2021, Duke Energy Florida, LLC (Duke Energy) submitted proposed revisions, pursuant to Section 205 of the FPA, to its Joint Open Access Transmission Tariff (OATT) in order to remove Network Contract Demand Service which is no longer used by any transmission customer in its service area. Duke Energy states that Network Contract Demand Service was never contemplated formally by the Commission in the issuance of Orders No. 888 and 890 and was never included in the pro forma OATT at any time. According to Duke Energy, the last agreements were terminated as of January 4, 2020. Agenda item E-5 may be an order on the proposed revisions to the Duke Energy OATT.
E-6 – PJM Interconnection, L.L.C. (Docket Nos. EL22-26-000, ER22-957-000). On January 31, 2022, PJM Interconnection, L.L.C. (PJM) submitted a proposal to demonstrate that the existing Transmission Constraint Penalty Factor rules are unjust and unreasonable and, accordingly, set the transmission line limit in its Security Constrained Economic Dispatch program, pursuant to Section 205 of FPA. In the filing, PJM asserted that application of the Transmission Constraint Penalty Factor to the transmission constraint occurring on the Northern Neck peninsula in the Dominion Zone is producing high locational marginal prices that have not led to new generation or demand response to alleviate the constraint. To remedy the persistent unjust prices in the peninsula, PJM proposed to set the transmission line limit in its Security Constrained Economic Dispatch program to a level that incorporates resources used in controlling the constraint in the Congestion Price rather than applying the Transmission Constraint Penalty Factor. A number of parties filed respective Protests to the PJM proposal, commonly stating that a lower penalty factor deployed as a market-based alternative rather than moving entirely to constraint relaxation. The protest filings also point to retaining market fundamentals, such as underlying economic and power flow fundamentals, in lieu of erasing them as proposed by PJM. Agenda item E-6 may be an order on the PJM proposal.
E-7 – Southwest Power Pool, Inc. (Docket No. ER18-1702-002). On May 31, 2018, Southwest Power Pool, Inc. (SPP) submitted an unexecuted Service Agreement for Network Integration Transmission Service (Service Agreement) between itself as transmission provider and American Electric Power Service Corporation (AEP) as network customer and an executed Network Operating Agreement (NOA) among SPP as transmission provider, AEP as both network customer and host transmission owner, and Western Farmers Electric Cooperative (WFEC) as host transmission owner. SPP submitted the filing after AEP declined to execute the revised AEP Service Agreement due to non-conforming terms and conditions in the SPP Tariff. Under Attachment Z2 in the SPP Tariff, the Service Agreement would only terminate when AEP had been credited with all Directly Assigned Upgrade Costs from SPP. On June 21, 2018, AEP submitted a Protest of the May 31 filing, asserting that the unexecuted Service Agreement furnishes charges and terms to which AEP did not agree, namely the retroactive cost allocation for certain transmission upgrades. As a result, AEP requested that the Commission reject the proposed terms in the unexecuted Service Agreement. On October 26, 2018, the Commission issued an order accepting the agreement effective May 1, 2018. On November 26, 2018, AEP filed a request for rehearing of the October 26 order, alleging that the Commission did not sufficiently consider specific concerns regarding the applicability of Aggregate Facilities Study Completion Agreements, through which AEP indicated it was not willing to pay in retroactive Directly Assigned Upgrade Costs. On June 28, 2019, SPP filed for a motion of stay of the refund directive in the order issued by the Commission on February 28, 2019, which implicated several separate but related proceedings. On February 20, 2020, the Commission issued an order denying the motion by SPP. Agenda item E-7 may be an order on Attachment Z2 of the SPP Tariff and the status of refunds.
E-8 – Kansas Electric Power Cooperative, Inc. v. Southwest Power Pool, Inc. (Docket No. EL17-21-001). On November 21, 2016, Kansas Electric Power Cooperative, Inc. (KEPCo) filed a Complaint against SPP, pursuant to Sections 206 and 306 of the FPA. In the Complaint, KEPCo requested that the Commission find that the direct cost assignment to KEPCo in connection with the Z2 revenue crediting process under the SPP Tariff violates the provisions of the Tariff, the filed rate doctrine, and is unjust and unreasonable. Namely, KEPCo stated that SPP inappropriately assigned $6.2 million in network upgrade costs in violation of four separate Network Integration Transmission Service Agreements. On November 6, 2017, the Commission issued an order denying and granting the complaint in part and establishing settlement judge procedures to resolve the outstanding material issues. On January 23, 2018, the chief judge issued an order terminating settlement procedures due to the single issue being resolved following a request for withdrawal as submitted on December 29, 2018 by KEPCo. On June 28, 2019, SPP filed for a motion of stay of the refund directive in the order issued by the Commission on February 28, 2019, which implicated several separate but related proceedings. On February 20, 2020, the Commission issued an order denying the motion by SPP. Agenda item E-8 may be an order on Attachment Z2 of the SPP Tariff and the status of refunds.
E-9 – Xcel Energy Services Inc. v. Southwest Power Pool, Inc. (Docket No. EL18-9-001). On October 10, 2017, Xcel Energy Services Inc. (Xcel) filed a Complaint against SPP, pursuant to Sections 206 and 306 of the FPA. In the Complaint, Xcel stated that SPP incorrectly utilized its assessment of revenue Credit Payment Obligations under Attachment Z2 of the SPP Tariff, and, accordingly, requested that the Commission find that SPP is violating the Tariff and filed rate doctrine. On March 6, 2018, the Commission issued an order denying the Complaint. On April 5, 2018, Xcel filed a request for rehearing of the March 6 order. On June 28, 2019, SPP filed for a motion of stay of the refund directive in the order issued by the Commission on February 28, 2019, which implicated several separate but related proceedings. On February 20, 2020, the Commission issued an order denying the motion by SPP. Agenda item E-9 may be an order on Attachment Z2 of the SPP Tariff and the status of refunds.
E-10 – Entergy Mississippi, LLC (Docket No. ER20-2550-003). On July 30, 2020, Entergy Services, LLC on behalf of Entergy Mississippi, LLC (collectively, Entergy) filed a proposed rate schedule in order to recover its cost-based revenue requirement for providing Reactive Supply and Voltage Control from Generation or Other Sources Service under the Midcontinent Independent System Operator (MISO) Tariff. The rate schedule pertains to a natural gas-fired combined-cycle generating facility located in Mississippi. Cleco Cajun LLC and Cleco Power LLC (collectively, Cleco) filed a Joint Protest on August 20, 2020; Cooperative Energy filed a Protest on August 20, 2020 as well. On November 27, 2020, the Commission issued an order accepting and suspending the proposed rate schedule and establishing hearing and settlement judge procedures. Following numerous settlement conferences, Entergy submitted an Offer of Settlement on November 17, 2021, purporting to resolve all material issues with Cleco and Cooperative Energy. On January 10, 2022, the settlement judge issued a Certification of Uncontested Settlement, and, consequently on February 1, 2022, issued an order terminating settlement judge procedures. Agenda item E-10 may be an order on the uncontested Offer of Settlement.
E-11 – Omitted
E-12 – PJM Interconnection, L.L.C. (Docket No. ER21-1802-000). On April 30, 2021, PJM Interconnection, L.L.C. (PJM) submitted proposed revisions to its Tariff in order to effectuate the single rate component of a reform package jointly sponsored by PJM and the Independent Market Monitor for PJM (IMM) relating to operational processes for generation stability limits, defined as temporary limitations on generator output during certain transmission outage conditions to alleviate potential strain on the system. On May 21, 2021, PJM Power Providers Group (P3) filed a Protest of the April 30 filing, asserting that the proposed revision is unduly discriminatory and relies on an ambiguous new Generator Output Constraint methodology that affects filed rates already approved by the Commission. Agenda item E-12 may be an order on the proposed Tariff revisions by PJM.
E-13 – PSEG New Haven LLC, PSEG Power Connecticut LLC, PSEG Power New York LLC, and Generation Bridge II, LLC PSEG Fossil LLC, PSEG Fossil Sewaren Urban Renewal LLC, PSEG Keys Energy Center LLC, PSEG Energy Resources & Trade LLC, Parkway Generation (Docket Nos. EC21-125-000, EC21-128-000). On September 2, 2021, pursuant to section 203(a)(1) of the Federal Power Act (FPA), subsidiaries of PSEG Power LLC (PSEG Power) and ArcLight Energy Partners Fund VII, L.P. (ArcLight) filed two separate applications requesting authorization for a series of transactions involving the sale of the above-named generation facilities from PSEG Power to subsidiaries of ArcLight, and for the merger and consolidation of jurisdictional facilities. On December 6, 2021, the Commission issued a deficiency letter regarding the effect of the proposed transaction on the PJM and NYISO capacity markets. On December 17, 2021, the applicants filed a response. Multiple parties filed motions to intervene, including the PJM Market Monitor, amongst others. After issuance of the open meeting agenda and listing the dockets as agenda item E-13, prior to the Commission’s open meeting, on February 15, the Commission issued an order granting the applications, authorizing the transactions under Section 203 of the FPA as consistent with the public interest.
Gas
G-1 – Oil Pipeline Capacity Allocation Issues and Anomalous Conditions (Docket No. AD22-7-000). Agenda item G-1 may be a notice of a proposed rulemaking that seeks to address capacity allocation issues (and related methodologies) on oil pipelines under anomalous conditions.
G-2 – Eastern Gas Transmission and Storage, Inc. (Docket Nos. RP21-1187-002, RP21-1187-003). On September 30, 2021, Eastern Gas Transmission and Storage, Inc. (EGTS) filed a general rate case pursuant to section 4 of the Natural Gas Act (NGA), in which EGTS generally seeks to increase its base rates for its transportation and storage services. On October 29, 2021, the Commission issued an order accepting, suspending (subject to refund), and establishing hearing procedures for the tariff records submitted by EGTS in its September 30 filing. The October 29 order also directed EGTS to show cause as to how its reservation charge crediting provisions conform with Commission policy. Specifically, EGTS was directed to show cause, pursuant to NGA section 5, as to how its tariff (1) eliminates or otherwise provides for an adjustment for periods in which shippers’ use of the system was constrained in EGTS’s calculation of historical usage and (2) does not require shippers to nominate quantities during a force majeure event to qualify for reservation charge credits. On November 29, 2021, EGTS filed its response (Response), asserting that its reservation charge crediting provisions are consistent with Commission policy and remain just and reasonable. EGTS also asserted in the Response that it does not have any legal burden to prove the foregoing and that the other participants in this proceeding had not met their burden under NGA section 5 to demonstrate such provisions are unjust and unreasonable or otherwise inconsistent with Commission policy. On January 18, 2022, certain intervenors filed comments on the Response. The intervenors generally assert that firm shippers should not have to submit any nominations in order to receive reservation charge credits when EGTS has given advance notice of an outage, though comments from the National Grid Gas Delivery Companies limited that argument specifically to force majeure outages. One of the intervenors also asserted that EGTS’s reservation charge crediting provisions need to make adjustments for outages that occur during look-back periods, while another argued that changes were necessary to address a specific concern about capacity releases to an asset manager with a zero reservation rate. On February 2, 2022, EGTS filed a reply in which it refutes the Comments, urges the Commission to recognize that none of the intervenors has satisfied their burden of proof under NGA section 5 to order a change to EGTS’s reservation charge crediting provisions, and requests that the Commission dismiss and terminate the show cause proceeding in this docket. Agenda item G-2 may be an order on the show cause proceeding and related foregoing briefings.
Hydro
H-1 – Otter Tail Power Company (Docket No. P-10853-022). On November 27, 2019, Otter Tail Power Company (Otter Tail) filed a Final License Application for the Otter Tail River Hydroelectric Project located on the Otter Tail River in Minnesota under the FPA. The project was already operating under a license issued in 1991, which was set to expire in November 2021. The Commission filed a Notice of Application Accepted for Filing, Soliciting Motions to intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments Recommendations, Preliminary Terms and Conditions, and Preliminary Fishway Prescriptions on May 19, 2020. A year later, the Commission issued an Environmental Assessment on May 18, 2021, Otter Tail responded to assessment and various comments submitted by the Minnesota Department of Natural Resources and the National Park Service, on August 5, 2021. On October 12, 2021, the Office of Energy Projects filed a revised and executed Programmatic Agreement for the project. Agenda item H-1 may be an order on the environmental assessment.
H-2 – Sacramento Municipal Utility District (Docket No. P-2101-178). On October 25, 2021, the American Whitewater and several other petitioners filed a timely rehearing request for Commission’s order issued on September 23, 2021 approving the Slab Creak Recreation Streamflow Parking and Access Plan. On November 23, 2021, the Commission filed a Notice of Denial of Rehearing by Operation of Law and Providing for Further Consideration. Agenda item H-2 may be an order on the rehearing request.
H-3 – Cube Yadkin Generation LLC (Docket No. P-2197-140). On November 22, 2021, the City of Salisbury, North Carolina filed a timely rehearing request for Commission’s order issued on October 21, 2021 approving Cube Yadkin’s Sedimentation and Flood Protection Plan. On December 23, 2021, the Commission filed a Notice of Denial of Rehearing by Operation of Law and Providing for Further Consideration. Agenda item H-3 may be an order on the original rehearing request.
H-4 – South Sutter Water District (Docket No. P-2997-032). On December 3, 2021, South Sutter Water District (South Sutter) filed a Request for Approval of Power Sales Contract with the Northern California Power Agency under Section 22 of the FPA. On December 27, 2021, State Water Resources Control Board filed a Notice of Intervention. South Sutter subsequently submitted supplemental information requested by Commission staff in support of the initial Request for Power Sales Contract. Agenda item H-4 may be an order on the Request for the Approval of South Sutter’s Power Sales Contract.
Certificates
C-1 – Certification of New Interstate Natural Gas Facilities (Docket No. PL18-1-000). On February 18, 2021, the Commission issued a Notice of Inquiry (NOI) that requested new information and additional perspectives that would assist the Commission in determining whether it should revise its 1999 Policy Statement on the Certification of New Interstate Natural Gas Facilities (Certificate Policy Statement). The NOI requested comments on how it identifies and addresses potential health or environmental effects of its pipeline certification programs, policies, and activities on environmental justice communities. The NOI also requested comments on how the Commission determines the need for a project, the exercise of eminent domain and landowner interests, consideration of environmental impacts, and improvements to the efficiency of the Commission’s review process. More than 200 comments were filed in response to the NOI. Agenda item C-1 may be an order revising the Certificate Policy Statement.
C-2 – Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews (Docket No. PL21-3-000). On September 16, 2021, the Commission issued a Notice of Technical Conference scheduling a Technical Conference to discuss methods natural gas companies may use to mitigate the effects of direct and indirect greenhouse gas emissions resulting from authorizations under sections 3 and 7 of the Natural Gas Act (NGA). The Commission issued additional supplemental notices related to the Technical Conference on October 1, November 9, and November 18, 2021. The Commission also issued a supplemental notice on November 16, 2021, seeking post-Technical Conference comments. The Technical Conference was held virtually on November 19, 2021, and consisted of three panels discussing, among other things, the extent of the Commission’s authority concerning GHG emissions and related mitigation, the types of mitigation methods available to natural gas companies, and compliance with and cost recovery of such mitigation methods, respectively. More than 30 comments were filed in response to the Technical Conference. Agenda item C-2 may be an order on the Technical Conference.
C-3 – Spire STL Pipeline LLC (Docket No. CP17-40-012). On December 3, 2021, the Commission issued a temporary certificate of public convenience and necessity (Temporary Certificate) to Spire STL Pipeline LLC (Spire) pursuant to section 7(c)(1)(B) of the Natural Gas Act (NGA). The Commission issued the Temporary Certificate to assure maintenance of service to Spire’s customers while the Commission addresses the issues on remand from the U.S. Court of Appeals for District of Columbia’s (D.C. Circuit) decision in Environmental Defense Fund v. FERC. The D.C. Circuit found that the Commission had improperly granted a certificate to Spire because the Commission had: (1) relied on a single precedent agreement with an affiliated shipper – Spire Missouri Inc. – to establish need and (2) failed to weigh the project benefits against the adverse effects. On December 17, 2021, certain landowners and the Niskanen Center (collectively, Landowners) requested rehearing of the Temporary Certificate. Landowners assert that the Commission should grant rehearing because the Temporary Certificate fails to state that it does not confer eminent domain authority or, if it does confer such authority, why that authority should not be stayed by operation of Order Nos. 871-B and 871-C (announcing a policy of presumptively staying all NGA section 7 certificates – including any eminent domain authority thereunder – for the 30-day period for seeking rehearing and then for the pendency of the rehearing process if any landowner seeks rehearing as to the validity of the certificate). On January 3, 2021, the Environmental Defense Fund (EDF) also requested rehearing of the Temporary Certificate. EDF asserts that the Commission should grant rehearing of the Temporary Certificate because the Commission has allegedly failed to respond to record evidence of self-dealing between Spire and its affiliate Spire Missouri Inc. EDF specifically asserts that the Commission should grant rehearing and modify the Temporary Certificate to address such self-dealing through certificate conditions. Agenda item C-3 may be an order on rehearing.
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RJ Colwell (Associate, White & Case, Houston) co-authored this publication.
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