On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), sitting en banc, upset FERC’s long-used practice of granting itself more time to consider requests for rehearing of its orders by issuing “tolling orders.” FERC’s prior use of tolling orders prevented parties from seeking judicial review of a Commission order, but did not stay the effect of that order. The crux of the court’s decision is that…

On June 18, 2020, FERC denied a complaint by Anbaric Development Partners, L.L.C. (“Anbaric”) against PJM Interconnection, L.L.C. (“PJM”) alleging that PJM’s transmission interconnection procedures denied meaningful open access interconnection service to Anbaric’s proposed offshore transmission projects (see December 11, 2019 edition of the WER). FERC’s June 18 order concluded that Anbaric failed to demonstrate that PJM’s transmission interconnection procedures are unjust and unreasonable, or that the requirements for merchant transmission projects are either…

On June 22, 2020, FERC issued a declaratory order confirming its view that it shares jurisdiction with the United States Bankruptcy Court (“Bankruptcy Court”) over transportation agreements between ETC Tiger Pipeline, LLC (“ETC Tiger”) and Chesapeake Energy Marketing L.L.C. (“Chesapeake”). As a result, aside from obtaining approval from the Bankruptcy Court to reject its contracts with ETC Tiger, Chesapeake must seek a determination from FERC as to whether a filed rate may be modified or…

On June 18, 2020, FERC issued an order finding that PJM Interconnection, L.L.C. (“PJM”) has been inconsistently implementing Order No. 1000’s immediate need reliability project exemption and directed PJM to implement certain aspects of the exemption more fully and transparently. Concurrently, in separate orders, FERC concluded there was insufficient evidence to find that either Southwest Power Pool, Inc.’s (“SPP”) or ISO New England Inc.’s (“ISO-NE”) implementation of the immediate need reliability project exemption was unjust,…

On June 18, 2020, FERC issued a Notice of Inquiry (“NOI”) requesting comment on whether the currently-effective Critical Infrastructure Protection (“CIP”) Reliability Standards adequately address: (i) cybersecurity risks pertaining to data security; (ii) detection of anomalies and events; and (iii) mitigation of cyber security events. FERC also seeks comment on the potential risk of a coordinated cyberattack on geographically distributed targets and whether Commission action, including potential modifications to the CIP Reliability Standards, would be…

On June 17, 2020, FERC issued two notices of upcoming technical conferences. First, a Commissioner-led technical conference is scheduled for Wednesday, September 30, 2020 to discuss considerations related to state adoption of mechanisms to price carbon dioxide emissions, commonly referred to as “carbon pricing,” in regions with FERC-jurisdictional organized wholesale electricity markets. Second, a staff-led technical conference will be held on October 27, 2020 to: (i) discuss whether existing transmission, interconnection, and merchant transmission facility…

On June 18, 2020, FERC issued an order directing New Fortress Energy LLC (“New Fortress Energy”) to show cause, within 30 days, why the liquified natural gas (“LNG”) handling facilities it constructed adjacent to the San Juan Combined Cycle Power Plant in San Juan, Puerto Rico, are not subject to FERC’s jurisdiction under section 3 of the Natural Gas Act (“NGA”).…