Energy Infrastructure Project Development & Finance

FERC Holds Technical Conference to Consider Financial Assurance for Hydropower Projects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contentious Senate Committee Hearing Highlights the Politically-Charged Nature of FERC’s Recent Pipeline Policy Statements

The Senate Energy & Natural Resources Committee held a hearing today to question Federal Energy Regulatory Commission (FERC) Chairman Richard Glick and Commissioners Allison Clements, Mark Christie, James Danly, and Willie Phillips about FERC’s two recent policy statements regarding natural gas certificates.  Those two policy statements, each of which were issued by 3-2 vote with Commissioners Christie and Danly dissenting with separate statements, were issued on February 18, 2022 and are the subject of a separate Pierce Atwood blog post. Members of the Pierce Atwood Energy team watched the livestream video of the Senate hearing, and, in this post, provide some high-level insights based on the Senators’ questions and Commissioners’ responses today.

To no one’s surprise, the hearing was a politically-charged event. With one notable exception, the participating Senators’ response to FERC’s actions was split along party lines, with Democrats generally supporting the policy statements and Republicans criticizing the policy statements with openly expressed dismay and frustration.  The FERC Commissioners’

FERC Issues Two Controversial Policy Statements on Natural Gas Infrastructure

Industries:

On February 18, 2022, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued two controversial policy statements that will significantly impact the permitting and construction of new natural gas pipeline facilities.  The policy statements were each approved by a 3-2 majority with Commissioners Danly and Christie issuing separate dissents.

The Updated Policy Statement on Certification of New Interstate Natural Gas Facilities (“Updated Policy Statement”) revises FERC’s 1999 Certificate Policy Statement to give environmental analysis and policy, including environmental justice, a greater role in determining whether FERC should approve new natural gas transportation facilities as consistent with the “public convenience and necessity” under Section 7 of the Natural Gas Act (“NGA”).  A companion Interim Policy Statement on the Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews (“GHG Policy Statement”) seeks to explain how FERC will assess the impacts of natural gas infrastructure projects on climate change in its reviews under the National Environmental Policy Act (“NEPA”) and the NGA.