• August 15, 2023

DOE Issues Proposed Rules to Accelerate Permitting and Enable More Rapid Deployment of Interstate Transmission Projects

Clean Energy, Permitting, Regulatory, Renewable Energy, Siting
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On August 10, 2023, the Department of Energy (“DOE”) issued a Notice of Proposed Rule Making (“NOPR”) proposing to establish an integrated Coordinated Interagency Transmission Authorizations and Permits Program (“CITAP Program”) that provides an expedient approval process for qualifying interstate transmission projects. Triggered by the Infrastructure Investment and Jobs Act (“IIJA,” also known as the “Bipartisan Infrastructure Law”) and the Inflation Reduction Act (“IRA”), the CITAP Program intends to relieve capacity constraints and congestion on the nation’s electric transmission grid by:

  • Improving the existing Integrated Interagency Pre-application Process (“IIP Process”) to identify the relevant necessary permits at the earliest opportunity;
  • Setting a two-year deadline for Federal entities to issue decisions and permits authorizing electric transmission projects after the publication of a Notice of Intent (“NOI”) to prepare an Environmental Impact Statement (“EIS”) in compliance with the National Environmental Policy Act (“NEPA”);
  • Simplifying the administrative record by incorporating the IIP Process administrative file into a single docket that contains all
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  • August 07, 2023

FERC Makes Meaningful Revisions to Interconnection Process with Order No. 2023

Clean Energy, Energy Storage, FERC, Regulatory, Siting
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On July 28, 2023, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued Order No. 2023  requiring all public utility transmission providers to adopt reforms to FERC’s pro forma generator interconnection procedures and agreements to address interconnection queue backlogs and prevent undue discrimination for new technologies.

In what FERC Chairman Willie Phillips referred to as “a watershed moment for our nation’s transmission grid,” the new rule includes several areas of reform. Order No. 2023 builds off FERC’s June 2022 Notice of Proposed Rulemaking (“NOPR”), in large part adopting the NOPR but deviating in several key areas after the receipt of approximately 4,500 pages of comments helping FERC inform its decision. Reforms in Order No. 2023  include:

  • Implementing a first-ready, first-served cluster study process, where transmission providers will conduct cluster interconnection studies encompassing numerous proposed generating facilities, rather than separate studies for each individual generating facility.
  • Speeding up interconnection queue processing by imposing firm deadlines with penalties
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  • April 18, 2023

Federal Law Preempts Berkeley’s Natural Gas Pipeline Ban

Natural Gas
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Whether you are a James Beard Award-winning chef or a self-taught home cook dreaming of that shiny new gas stove, you can rest somewhat easier.  The U.S. Court of Appeals for the Ninth Circuit has ruled that the federal Energy Policy and Conservation Act (ECPA), 42 U.S.C. § 6297(c) preempts the City of Berkeley, California’s 2019 regulation prohibiting the installation of natural gas piping in new buildings.

On April 17, 2023, the court of appeals issued an opinion in California Restaurant Association v. City of Berkeley, No. 21-16278, reversing a lower court decision and finding that ECPA “expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.” Berkeley’s ordinance, similar to those proposed elsewhere, did not ban gas appliances.

Instead, the city prohibited installation of natural gas piping extending from the local distribution company’s facilities into new buildings, making the use of gas appliances in such buildings impossible. Prohibition

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  • November 22, 2022

FERC Releases Fiscal Year 2022 Annual Enforcement Report

FERC, Natural Gas Pipelines, Regulatory
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On November 17, 2022, the Staff of the Office of Enforcement (“OE”) of the Federal Energy Regulatory Commission (“FERC”) issued its sixteenth  Annual Report on Enforcement (the “Report”).[1] The Report discusses the activities performed by OE’s Division of Investigations (“DOI”), Division of Audits and Accounting (“DAA”), and Division of Analytics and Surveillance (“DAS”).

The Report provides ample reason for all participants in the energy markets regulated by FERC to continue to place an emphasis on compliance and annual reporting.  The increase in investigations, the scope of DAS’s surveillance activities, and the resolution of self-reports without significant further investigation or penalties suggests that FERC continues to prioritize enforcement activities and values a strong culture of compliance by market participants.

FERC’s Strategic Plan and OE’s Priorities

OE’s priorities follow FERC’s March 28, 2022 Strategic Plan for Fiscal Years 2022-2026 (“Strategic Plan”). The Strategic Plan set forth several of FERC’s principal missions, including: accounting for significant

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  • April 27, 2022

FERC Holds Technical Conference to Consider Financial Assurance for Hydropower Projects

Clean Energy, FERC, Permitting, Regulatory
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On April 26, 2022 FERC held a Commission staff-led technical conference to discuss whether and, if so, how the Commission should require additional financial assurance mechanisms in the licenses and other authorizations it issues for hydroelectric projects.  The purpose of this effort is to ensure that licensees have the capability to carry out license requirements and, particularly, to maintain their projects in safe condition.  The technical conference followed, by over a year, the Commission’s January 26, 2021 notice of inquiry (NOI) seeking comments on potential changes to FERC’s rules relating to financial assurance for hydropower projects.

Background

The genesis of FERC’s January 2021 NOI was FERC’s concern that inadequate financing of hydropower projects may result in threats to public safety and environmental resources, especially for nonoperational projects.  FERC specifically noted recent experiences where a lack of funding for needed dam safety repairs led to several dam failures in 2020.  Therefore, FERC is considering whether to take additional measures to ensure that licensees have the

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  • April 20, 2022

Biden Administration Restores More Stringent Environmental Review under NEPA

Regulatory

On April 20, 2022, The White House Council on Environmental Quality (CEQ) published its final rule to amend three provisions of its National Environmental Policy Act (NEPA) regulations. The amendments largely are the same as the changes proposed this past fall, and are intended to restore provisions that were in effect for decades before they were modified in 2020 by the Trump administration.

Pierce Atwood attorneys Lisa Gilbreath, Matt Manahan, Randy Rich, and Georgia Bolduc have been tracking and reporting on changes to the NEPA regulations since early 2020 and have just published an alert on the final rule. Please read the full alert on our firm’s website: Biden Administration Restores More Stringent Environmental Review under NEPA.

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  • April 15, 2022

Fish and Wildlife Service Proposes to Reclassify Northern Long-eared Bat as Endangered

Clean Energy, Construction, Permitting, Regulatory, Renewable Energy, Siting, Wind Power
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The U.S. Fish and Wildlife Service (FWS) is proposing to change the classification of the northern long-eared bat (NLEB) from threatened to endangered under the Endangered Species Act (ESA). Reclassifying the NLEB will have major implications for development projects throughout the U.S., particularly in wind energy development.

The FWS classifies a species as threatened when the species is likely to become endangered within the foreseeable future in all or a portion of its range. A species is endangered when it is in danger of extinction throughout all or a significant portion of its range.

Due to the fungal disease white-nose syndrome, the NLEB has experienced a steep decline in population across its 37-state range, which includes Maine, New Hampshire, and Massachusetts. In 2015, the FWS classified the NLEB as threatened due to the decline in population, and issued an ESA Section 4(d) rule allowing an incidental “take” of NLEB subject to certain conditions.

In 2020, under court order, the

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  • April 11, 2022

Massachusetts Legislature Moves Forward with Reforms that Would Reshape the Energy Sectors to Achieve Climate and Economic Development Goals

Clean Energy, Energy Storage, Offshore Power, Renewable Energy, Solar Power
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On April 7, 2022, Massachusetts Senate Ways and Means Committee issued its response to an earlier House Ways and Means Bill (House No. 4524).  The Senate bill, Senate No. 2819, revised a number of features of the earlier House bill with respect to the Commonwealth’s procurement of offshore wind energy, but also addressed a range of issues focused upon climate matters.  The Senate bill also included a range of provisions to advance electric vehicles, other forms of renewable energy, real estate development that advances climate goals and fundamentally alter consumers’ options by eliminating the competitive retail electricity supply market and decarbonizing the natural gas industry, as summarized below.

What’s next?  We understand that the Senate will be taking amendments to the bill during the next few days and that the Senate will likely adopt a form of Senate No. 2819 later this month.  The House will likely adopt a different version of the bill, resulting in the establishment of a conference committee to work out the

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  • March 29, 2022

DER Aggregations in RTO/ISO Markets: An Update on FERC Order No. 2222 Compliance and Implementation

Clean Energy, Energy Storage, FERC, Regulatory, Renewable Energy, Solar Power
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In September of 2020, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued Order No. 2222,[1] requiring Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”) to adopt rules allowing aggregations of distributed energy resources (“DERs”) to participate in the RTO/ISO-administered wholesale electricity markets.  Now, a year-and-a-half later, the compliance process for each RTO and ISO is ongoing, the proposed implementation timelines for the market rules vary widely, and numerous legal and technical challenges remain to be resolved. Below is an overview of the current status of RTO/ISO efforts to implement Order No. 2222, certain related industry activities, and various implementation challenges that have come to the fore through those market design efforts.

Background

FERC issued Order No. 2222 to “remove barriers” to DER aggregations’ participation in RTO/ISO markets, and to help ensure that the RTO/ISO markets produce just and reasonable rates as required by the Federal Power Act.  Under FERC’s definition, DERs are “any resource located on the

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  • March 28, 2022

Slimmed Down Energy Tax and Social Spending Package Targeted for Vote Before August

Clean Energy, Development Incentives, Renewable Energy, Solar Power, Tax, Tax Credits
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A slimmed down version of the Build Back Better bill is reportedly in discussions between the Biden Administration and Senator Joe Manchin (D-W.Va). The Build Back Better bill has been stalled in Congress due to opposition by Senator Manchin. The new discussions come as welcomed news as the wind production tax credit is set to expire this year, and the solar investment tax credit continues to phase down. Current law also does not include tax incentives for stand-alone energy storage projects.  Experts generally agree that prices for renewable energy development will increase absent legislative action.

According to the Washington Post, Senator Manchin has said that he would seek to bring the package to a vote prior to the August recess. Following the recess it becomes more difficult to move major legislation in advance of midterm elections

The bill is said to include an extension of the solar investment tax credits and wind production tax credits along with other clean energy provisions contained in the

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