On September 16, 2019, FERC accepted revisions to the PJM Interconnection, L.L.C. (“PJM”) tariff that: (1) establish a process by which existing capacity sellers can request removal of their capacity resource’s status; and (2) revise the process for must-offer exceptions due to an existing seller’s physical inability to meet its capacity requirements. The changes clarify how existing capacity resources may, under certain circumstances, effectively elect to “opt out” of PJM’s annual capacity auctions (termed Based…

On September 19, 2019, FERC proposed substantial revisions to its Public Utility Regulatory Policies Act of 1978 (“PURPA”) regulations.  If adopted, the package of reforms proposed in the Notice of Proposed Rulemaking (“NOPR”) would: (1) allow states more flexibility to incorporate competitive forces when setting avoided cost rates for Qualifying Facilities (“QFs”), (2) modify the “one-mile rule,” (3) reduce the size threshold for the rebuttable presumption about QFs’ ability to access markets, (4) provide clarity…

Summary of NOPR On September 19, 2019, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) proposing to revise its regulations implementing Sections 201 and 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA) in light of changes in the energy industry since 1978.[1]…

On August 30, 2019, FERC instituted a section 206 proceeding to require PJM Interconnection, L.L.C. (“PJM”) to revise its Amended and Restated Operating Agreement (the “PJM Operating Agreement”) in light of a recent reversal from the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”).  In the new section 206 proceeding, FERC is requiring PJM to revise the PJM Operating Agreement to include projects needed solely to address Form No. 715…

On August 28, 2019, FERC found on voluntary remand from the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) that the New York State Department of Environmental Conservation (“New York DEC”) waived its authority under section 401 of the Clean Water Act (“CWA”) to either issue or deny Constitution Pipeline Company, LLC (“Constitution”) a water quality certificate for a proposed 125-mile pipeline project from that would stretch from Pennsylvania to New York…

On July 25, 2019, FERC issued an order directing PJM Interconnection, L.L.C. (“PJM”) “not to conduct the 2019 BRA” (Base Residual Auction) in August (“July 2019 Order”).  The 2019 BRA, which will procure capacity for the 2022-2023 Delivery Year, was already delayed from May to August while FERC considered how to apply the PJM Minimum Offer Price Rule (“MOPR”) to resources which receive out-of-market support, including Zero Emissions Credits (“ZECs”) and Renewable Energy Credits (“RECs”). …

On July 18, 2019, FERC issued an order denying in part and granting in part a request for clarification or rehearing of Order No. 856, which revised its regulations relating to interlocking officers and directors.  FERC provided additional clarification and explanation, but declined to make any further revisions or to allow rehearing.…