Regulatory

  • 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
Authors:
Practice area:
Industries:

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
Continue Reading...
  • August 07, 2023

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

Clean Energy, Energy Storage, FERC, Regulatory, Siting
Authors:
Practice area:

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
Continue Reading...
  • November 22, 2022

FERC Releases Fiscal Year 2022 Annual Enforcement Report

FERC, Natural Gas Pipelines, Regulatory
Authors:
Practice area:

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

Continue Reading...
  • April 27, 2022

FERC Holds Technical Conference to Consider Financial Assurance for Hydropower Projects

Clean Energy, FERC, Permitting, Regulatory
Authors:
Practice area:
Industries:

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

Continue Reading...
  • 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.

Continue Reading...
  • 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
Authors:
Practice area:
Industries:

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

Continue Reading...
  • 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
Practice area:
Industries:

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

Continue Reading...
  • March 24, 2022

Update: FERC Commissioners Vote Unanimously to Revise Pipeline Certificate and GHG Emission Policy Statements

Natural Gas Pipelines, Regulatory
Authors:
Practice area:
Industries:

The Federal Energy Regulatory Commission has reached consensus to revise the two policy statements it issued on February 18, 2022, impacting the permitting and construction of new natural gas pipeline facilities

During the March 24, 2022 FERC open meeting, Chairman Glick explained that the new order will:

  • Change the status of both policy statements to be “draft” policy statements
  • Reopen the comment period for both draft policy statements so that the Commission can re-engage with stakeholders and further develop the record
  • Further develop the record, and revise both policy statements to make them applicable only prospectively to any pipeline certificate applications that are filed subsequent to the issuance of any final versions of the policy statements.

Currently-pending certificate applications will be reviewed pursuant to the Commission’s 1999 Policy Statement  and relevant FERC and judicial precedent.  Although the vote was unanimous, each of the Commissioners indicated that they intend to issue separate statements explaining their

Continue Reading...
  • March 15, 2022

Amidst Ongoing Policy Statement Controversy, D.C. Circuit Remands Another FERC Pipeline Order Over GHG Analysis

FERC, Natural Gas Pipelines, Regulatory
Authors:
Practice area:
Industries:

Once again finding the Federal Energy Regulatory Commission’s (“FERC” or “Commission”) environmental assessment (“EA”) analysis of the downstream effect of greenhouse gas (“GHG”) emissions associated with interstate natural gas pipelines and liquefied natural gas terminals certificated pursuant to the Natural Gas Act (“NGA”) legally insufficient, on March 11, 2022, the United States Court of Appeals for the District of Columbia Circuit issued a remand directing FERC to consider the reasonably foreseeable indirect effects of burning natural gas as the result of a pipeline expansion project.  The court directed FERC to consider such indirect downstream impacts on remand and to prepare a conforming EA, but declined to vacate the FERC’s orders. Food & Water Watch and Berkshire Environmental Action Team v. FERC, No. 20-1132 (Mar. 11, 2022) (“Food & Water Watch”).  Food & Water Watch, authored by Chief Judge Srinivasan and joined by Judges Millett and Katsas, appears to provide further support for some of the reasoning provided by

Continue Reading...
  • March 04, 2022

Massachusetts Poised to Reshape Natural Gas Distribution Companies to Address Climate Change

Biogas, Clean Energy, Regulatory
Authors:
Practice area:
Industries:

About one year ago, the Massachusetts Department of Public Utilities or DPU opened an investigation (D.P.U. 20-80) to examine the appropriate role of gas LDCs in helping to meet the Commonwealth’s 2050 climate goals.  The proceeding sought to identify and evaluate strategies to move to net-zero GHG while simultaneously protecting ratepayer interests.  The potential to “recast” the role of the LDCs was a principal part of the focus.

Consultants were retained by the LDCs and an extensive stakeholder process has been completed.  A material step in the process was to identify and then evaluate the merits of what turned out to be eight “pathways” that each reflected changing roles for LDCs.  A two-volume report – Independent Consultant Report Vol. I and Vol. II – has been released in draft, is being finalized and will ultimately be reviewed by the DPU.  It is clear that the role of the LDCs will evolve substantially.  These “pathways” reflected various ranges of “electrification” and differing roles

Continue Reading...