05 April 2018

Energy Enforcement Update

This week’s enforcement update covers:

  • FERC files opposition to Powhatan and Chen motion to dismiss amended complaint;
  • Judge denies CFTC motion to compel based on agreement of parties;
  • FERC extends deadline for comments in grid resilience proceeding to May 9;
  • Supreme Court extends time for government to respond to TOTAL;
  • Sidley and The Brattle Group to host webinar on FERC energy storage order; and
  • Sidley’s Ken Irvin moderates PLI program on FERC enforcement.

FERC files opposition to Powhatan and Chen motion to dismiss amended complaint.  On March 21, FERC filed its opposition to the motion to dismiss filed by Powhatan Energy Fund, Alan Chen and the other defendants regarding FERC’s amended complaint in the U.S. District Court for the Eastern District of Virginia.  As we previously reported, the defendants sought to dismiss the case on statute of limitations grounds.  In its opposition, FERC argues that the defendants mischaracterize or ignore the plain language of 28 U.S.C. § 2462 and controlling case law, instead urging a strawman analysis that re-litigates FERC’s adjudication procedures, rather than addressing the proper issue of when FERC’s claim first accrued.  FERC argues that it met the five-year statute of limitations set out in § 2462, both in timely beginning the order to show cause proceeding and timely filing the complaint in district court.  In addition, FERC asserts that the district court has authority to enforce FERC’s disgorgement order, which was timely filed.

Judge denies CFTC motion to compel based on agreement of parties.  On March 20, Judge John Robert Blakey of the U.S. District Court for the Northern District of Illinois issued a minute entry denying the CFTC’s motion to compel as moot based on the agreement of the parties.  The CFTC had requested that the defendants Kraft Foods Group, Inc. and Mondelez Global LLC provide all transcripts and exhibits of depositions taken in a parallel class action, Ploss, et al. v. Kraft Foods Group, Inc., et al., No. 15-cv-2937 (N.D. Ill.).  The defendants objected to the CFTC’s request for rolling production of future deposition transcripts from many new witnesses, without any cut-off date, after the close of discovery.

FERC extends deadline for comments in grid resilience proceeding to May 9.  On March 20, FERC issued an order extending the deadline for comments in its proceeding evaluating the resilience of the bulk power system in the regions operated by RTOs/ISOs (Docket No. AD18-7).  Comments are now due by May 9.  FERC previously directed the RTOs/ISOs to submit information on certain identified resilience issues, which filings were submitted on March 9.  FERC has now extended the time from 30 to 60 days for interested parties to file comments in response to the RTOs/ISOs’ filings.

Supreme Court extends time for government to respond to TOTAL.  On March 9, the Solicitor General filed a motion to extend the time to file a response to TOTAL’s writ of certiorari in the U.S. Supreme Court seeking review of the judgment of the U.S. Court of Appeals for the Fifth Circuit dismissing TOTAL’s declaratory judgment action against FERC.  On March 12, the Supreme Court granted to extension, so the government’s response is now due by April 11.

Sidley and The Brattle Group to host webinar on FERC energy storage order.  On April 4 at 12 PM EST, Sidley is hosting a webinar with The Brattle Group covering FERC’s recent order on energy storage in wholesale energy markets.  In FERC Order No. 841 issued on February 15, FERC voted to remove barriers to the participation of electric storage resources in the capacity, energy and ancillary services markets operated by RTOs/ISOs.  Given the scope of FERC’s action, Brattle released a study finding that storage market potential could grow to 50,000 MW over the next decade if storage costs continue to decline and state regulatory policies build on the recently-issued FERC order to remove barriers that prevent storage resources from realizing multiple value streams.  You can RSVP for the webinar here.

Sidley’s Ken Irvin moderates PLI program on FERC enforcement.  Sidley’s Ken Irvin recently moderated panel titled Navigating the New Era of FERC Enforcement for the Practicing Law Institute (PLI).  The program involves an interactive discussion of FERC enforcement issues with Geof Hobday (Acting Director, FERC Division of Investigations), Joseph Bowring (President, Monitoring Analytics), Martin Ramirez (Compliance Counsel, Freepoint Commodities LLC), Sandra E. Rizzo (Arnold & Porter), and Ed Zabrocki (Managing Director, Morgan Stanley & Co. LLC).  The program is available as an on-demand web program through PLI, and CLE is available in many states.

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