On June 30, 2020, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ruled en banc 10-1 in Allegheny Defense Project v. FERC to invalidate the Federal Energy Regulatory Commission’s (FERC) common practice of issuing tolling orders to extend the time for deciding rehearing requests under the Natural Gas Act (NGA) beyond the 30-day deadline set forth in the statute. The court found that a tolling order, in which FERC “grants rehearing” for the limited purpose of affording it additional time to act on a rehearing request, does not constitute “action” upon the rehearing request as required by the NGA. The decision reversed the approximately 50-year old D.C. Circuit precedent upholding the tolling order practice as permissible. The court derided the practice as an unauthorized way for FERC to stall for time while precluding parties aggrieved by FERC orders from seeking judicial review.
On May 21, 2020, FERC issued a policy statement to clarify its position regarding requests for waiver of tariff provisions. If finalized, the Policy Statement would revise how FERC treats requests for waiver of tariff provisions.
The proposed policy relates to FERC’s statutory authority to review and approve public utility rates, as set forth in Federal Power Act (FPA) sections 205 and 206, and the parallel provisions in Natural Gas Act (NGA) sections 4 and 5. FERC is concerned that its usual practice of waiving tariff provisions after the fact amounts to retroactive ratemaking in violation of the filed rate doctrine. (more…)
As the novel coronavirus (COVID-19) continues to spread, Sidley is helping clients navigate the potential consequences to energy markets and attendant legal risks. The following frequently asked questions address actions by the U.S. Federal Energy Regulatory Commission (FERC) on April 2, 2020 in response to the current market conditions. This document updates energy regulatory FAQs published by Sidley on March 20, 2020.
The Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC) announced yesterday they are taking steps to ensure that operators of the bulk electric system can focus their resources on keeping people safe and the lights on during this unprecedented public health emergency.
Topics discussed this week include:
- EPA proposes to decline to set CERCLA financial assurance rule for electric power industry.
- D.C. Circuit upholds RCRA transfer-based exclusion.
- EPA proposes renewable volume obligations for 2020.
- EPA issues final enforcement policy on coordination with and delegation to states.
In anticipation of the Department of Energy’s review of the nation’s power grid, stakeholder groups have recently published reports on the state of the U.S. power grid. The reports add to the debate over what mix of energy resources are needed to sustain a stable, secure and reliable supply of electricity in the United States.
An April 14, 2017 memo from Energy Secretary Rick Perry directing the Energy Department to “explore critical issues central to protecting the long-term reliability of the electric grid” has focused the debate. According to Secretary Perry, the 60-day review would assess whether federal policies have caused “the erosion of critical baseload resources.” This includes an assessment of whether reduced coal-fired power generation due “in part from regulatory burdens introduced by previous administrations” has hurt the supply of baseload power and will “undercut the performance of the grid well into the future.” (more…)