Trump to Nominate Christie and Clements as FERC Commissioners
On July 27, 2020, President Donald Trump introduced that he intends to appoint Virginia Company Fee Chair Mark Christie and former Pure Sources Protection Council (NRDC) lawyer Allison Clements as Federal Power Regulatory Fee (FERC) Commissioners. Christie was beforehand president of the Group of PJM States Inc. and was elected president of the Mid-Atlantic Convention of State Utility Regulators. Clements at the moment serves as founder and president of Goodgrid, LLC, an vitality coverage and technique consulting agency, and beforehand labored for a decade on the NRDC.
At the moment the FERC Commissioners embody Neil Chatterjee (Chairman), Richard Glick, Bernard McNamee, and James Danly. McNamee, a Republican, has introduced that he is not going to search one other time period. His present time period expired on June 30, 2020, however he has beforehand indicated that he’ll stay a commissioner till his substitute is confirmed and sworn in. FERC has been working for many of the yr with 4 members—three Republicans and one Democrat. If Christie and Clements are confirmed by the U.S. Senate, FERC will return to a full slate of 5 Commissioners. Christie would fill the Republican seat that will likely be vacated when Commissioner McNamee steps down, and Clements would fill the vacant Democratic seat.
FERC Proposes Adjustments to Dam Security Laws
On July 16, 2020, FERC issued a Discover of Proposed Rulemaking (NOPR) to revise its rules governing its dam security program, codified at 18 C.F.R. Half 12. The NOPR was the results of suggestions obtained from the Unbiased Forensic Crew investigating the spillway incident at Oroville Dam in February 2017 and findings of the After-Motion Panel on causes of the incident and suggestions to enhance the effectiveness of FERC’s Dam Security Program. FERC famous that the NOPR just isn’t supposed to handle the Michigan dam failures that occurred in Could 2020.
The NOPR proposes a number of modifications to the Division of Dam Security and Inspections’ Unbiased Advisor Inspection Program, generally known as the Half 12D Program. First, FERC proposes to implement two tiers of Half 12 security inspections. Beneath the two-tier scheme, initiatives would nonetheless be topic to a Half 12D Inspection each 5 years, however the required scope of the inspection would alternate between a Periodic Inspection and a Complete Evaluation. The Periodic Inspection would concentrate on the efficiency of the mission over the earlier 5 years, and would come with a area inspection, in addition to an analysis of whether or not any potential failure modes are occurring. The Complete Evaluation builds on a Periodic Inspection with a deep dive into each facet of a mission, together with an in depth overview of the design foundation, analyses of document, building historical past, and an analysis of spillway adequacy.
FERC is also proposing to vary the method by which it opinions and evaluates the {qualifications} of unbiased consultants that carry out Half 12D Inspections. At the moment, a licensee is required to retain a single unbiased guide to conduct the inspection, topic to FERC’s approval. Beneath the NOPR, the licensee should retain an unbiased guide crew comprised of a number of unbiased consultants and extra engineering or scientific personnel, as wanted, topic to FERC’s approval. The licensee should exhibit to FERC that members of the crew possess an applicable stage of experience for the particular mission. Beneath the NOPR, the designated unbiased guide members of the crew, however not the supporting members, should nonetheless have a minimal of ten years’ expertise in dam design and building and the investigation of the security of current dams.
FERC additionally proposes to codify current steering associated to the Proprietor’s Dam Security Program. At the moment, licensees aren’t explicitly required to develop an Proprietor’s Dam Security Program, although it is strongly recommended underneath FERC steering issued in August 2012. The NOPR proposes to codify the requirement that licensees of a number of excessive or important hazard potential dams should file and keep an Proprietor’s Dam Security Program.
The NOPR additionally would replace current rules associated to public security incident reporting. At the moment, licensees are required to report deaths and severe accidents at their initiatives. Beneath the NOPR, licensees should report public security incidents which can be associated to the operation of the hydropower mission and report rescues along with deaths and severe accidents. Licensees should additionally put together and keep a public security plan, which is the present apply underneath current FERC steering.
Lastly, FERC is issuing plans to replace and add new chapters to its engineering tips doc. FERC is soliciting public overview and touch upon these tips in Docket Nos. AD20-20 via AD20-23.
Feedback on the NOPR are due on September 22, 2020.
Replace on FERC’s Use of Rehearing Tolling Orders
As reported in final month’s e-newsletter, on June 30, 2020, in Allegheny Protection Venture v. FERC, the U.S. Court docket of Appeals for the D.C. Circuit (D.C. Circuit) held that the Pure Gasoline Act (NGA) doesn’t grant FERC the authority to challenge a “tolling order” that serves solely to stop a petitioner from searching for judicial overview underneath a statutory 30-day “deemed denied” provision. Beneath the order, if FERC fails to behave on the deserves of a rehearing request inside 30 days, the rehearing is deemed denied by operation of regulation and the get together searching for rehearing might search to acquire judicial overview. As a result of the Federal Energy Act (FPA) incorporates an similar provision requiring FERC motion on a rehearing request inside 30 days, the case seems to make FERC’s use of tolling orders in hydropower proceedings weak to an analogous problem.
On July 23, the D.C. Circuit granted FERC’s movement to remain issuance of the mandate within the case.
FERC argued {that a} keep was essential to assess learn how to revise its processes and allocate its sources to implement the Court docket’s choice and to permit the federal authorities time to think about whether or not to file a petition for a writ of certiorari with the U.S. Supreme Court docket. On account of the keep, FERC just isn’t obligated to adjust to the Court docket’s order till October 5. Nevertheless, whereas FERC might not must comply but with the Allegheny choice, arguably the choice now determines the deadline for submitting a petition for judicial overview of a FERC order, and can, until the Supreme Court docket overturns the choice. Regardless of the keep of the mandate, FERC has adjusted its practices in response to the Allegheny choice. Quite than issuing tolling orders, in various instances FERC has issued a “Discover of Denial of Rehearing by Operation of Legislation and Offering for Additional Consideration,” noting that the rehearing request will likely be addressed in a future order. In different proceedings, FERC has issued a substantive order on rehearing throughout the 30-day window, which was a uncommon incidence previous to the Allegheny order.
Replace on EPA’s Ultimate Rule to Streamline CWA Part 401 Overview
As reported in final month’s e-newsletter, on June 1, 2020, the U.S. Environmental Safety Company (EPA) launched a Ultimate Rule that considerably revises its rules implementing part 401 of the Clear Water Act (CWA). The Ultimate Rule is EPA’s first complete effort to promulgate federal guidelines governing the implementation of CWA part 401.
The Ultimate Rule was revealed within the Federal Register on July 13, 2020, and can grow to be efficient on September 11. At the very least three lawsuits difficult the Ultimate Rule have already been filed. On July 13, 2020, the Delaware Riverkeeper Community and the Delaware Riverkeeper filed a criticism within the U.S. District Court docket for the Japanese District of Pennsylvania. Additionally, on July 13, 2020, American Rivers, American Whitewater, California Trout, and Idaho Rivers United filed a criticism within the U.S. District Court docket for the Northern District of California. On July 21, 2020, a gaggle of 20 states and the District of Columbia filed a separate criticism earlier than the federal district court docket within the Northern District of California.
For extra info on EPA’s Ultimate Rule, see our challenge alert.
FERC Points Declaratory Order Discovering Waiver of California Part 401 Authority
On July 16, 2020, FERC issued a discovering that the California State Water Sources Management Board (Water Board) waived its authority underneath part 401 of the CWA to challenge a water high quality certification (WQC) within the ongoing relicensing of Pacific Gasoline and Electrical Firm’s (PG&E) Higher North Fork Feather Hydroelectric Venture. PG&E filed its request for dedication of waiver in response to the D.C. Circuit’s choice in Hoopa Valley Tribe v. FERC and FERC’s subsequent declaratory order in Placer County Water Company.
PG&E initially filed its 401 utility with the Water Board in October 2002 and subsequently withdrew and resubmitted the appliance every year for 16 years in coordination with the Water Board. In February 2019, the Water Board denied PG&E’s utility with out prejudice on the premise that the California Environmental High quality Act (CEQA) course of was not but full. In March 2019, PG&E filed a brand new request for WQC, which was once more denied with out prejudice in March 2020 on the identical grounds. PG&E didn’t file a brand new 401 utility, however as an alternative sought a dedication from FERC that the Water Board had waived its authority underneath part 401. In Could 2020, with no utility pending earlier than it, the Water Board issued a draft WQC for the mission.
FERC granted PG&E’s request for a waiver dedication, discovering that the coordinated withdraw and refile course of constituted a waiver of part 401 authority. According to its prior selections, FERC held {that a} formal settlement between a licensee and a state just isn’t essential to help a discovering of waiver. In response to the Water Board’s argument that the licensee voluntarily withdrew its utility every year to keep away from a denial with out prejudice, FERC discovered that the Water Board anticipated and inspired PG&E to serially withdraw and resubmit its utility to keep away from the one-year deadline. FERC additionally rejected arguments that the 401 certification course of was held up by the necessity for added info on the mission’s capability to adjust to water high quality aims for temperature. FERC concluded, because it did in prior orders, that the “state’s cause for delay is immaterial” and, in any occasion, the Water Board repeatedly raised the potential of requesting additional info however by no means did so. FERC additional discovered {that a} state’s reliance on a regulatory course of like CEQA doesn’t excuse compliance with the one-year deadline underneath the CWA. Whereas the draft WQC was issued with out an utility pending earlier than it, FERC held that it isn’t precluded from contemplating the situations included therein in making its licensing dedication.
FERC additionally has issued three rehearing orders in current weeks affirming its prior part 401 waiver determinations in Yuba County Water Company, PG&E’s Kilarc-Cow Creek Venture, and Southern California Edison Firm. Any of those orders might be appealed to the Court docket of Appeals inside 60 days of the respective order.
FERC Approves Partial Switch of Klamath Venture License
On July 16, 2020, FERC issued an order approving the partial switch of the license for the decrease 4 developments that comprise the Klamath Hydroelectric Venture in California and Oregon. PacifiCorp’s switch utility, filed in September 2016, proposed to switch the license to the Klamath River Renewal Company (KRRC) which, upon FERC approval of the switch, would oversee decommissioning and removing of the mission dams. On the identical day, KRRC filed an utility to give up the license and take away the 4 developments. Beneath its proposal, upon switch of the mission to KRRC, PacifiCorp would proceed to supply administration and operations providers for the mission till it was decommissioned, however would haven’t any duty or legal responsibility as a licensee.
FERC authorised the switch, however discovered that due to the magnitude of the proposed decommissioning and uncertainties related to it, PacifiCorp should stay as a co-licensee of the mission, and conditioned approval of the license switch upon it doing so. FERC discovered it “wouldn’t be within the public curiosity for the complete burden of those efforts to relaxation with [KRRC] ought to we approve the give up utility.” It famous that whereas KRRC has restricted funds and no expertise with hydropower dam operation or dam removing, PacifiCorp has further sources and expertise in eradicating a serious mission. FERC famous that whereas its order doesn’t present legal responsibility safety to PacifiCorp as envisioned, the 2 events might elect to amend their association for KRRC to indemnify PacifiCorp for bills it bears because of being a co-licensee.
That is the primary occasion by which FERC has granted an utility to switch a license to a brand new entity whose sole objective is to give up a license and decommission a mission. FERC will act on the give up utility in a future order.
FERC Finalizes PURPA Rule
On July 16, 2020, FERC issued a Ultimate Rule revising its rules implementing the Public Utility Regulatory Insurance policies Act of 1978 (PURPA). PURPA was enacted to encourage growth of small energy manufacturing services that don’t depend on fossil fuels and cogeneration services (collectively, qualifying services or QFs). FERC has not comprehensively reviewed its PURPA guidelines since they had been first enacted in 1980. With restricted exceptions, the Ultimate Rule largely adopts the proposals in FERC’s September 2019 NOPR.
The Ultimate Rule contains a number of important modifications to FERC’s implementation of PURPA. First, FERC will enable states extra flexibility to include market pricing in prevented value charges. The Ultimate Rule additionally clarifies when and the way a legally enforceable obligation (LEO) for the sale of energy to utilities is established. Particularly, the Ultimate Rule requires a QF to exhibit business viability and monetary dedication to assemble the mission to acquire a LEO. In a change from the NOPR, the Ultimate Rule states {that a} QF counting on allowing to help the institution of a LEO want solely present that it has utilized for all required permits and paid all relevant charges, and never that it has obtained such permits.
FERC additionally broadened the flexibility of utilities to terminate their necessary buy obligation from small energy manufacturing QFs. Beneath PURPA, a utility might search to terminate its necessary buy obligation by demonstrating that QFs have non-discriminatory entry to wholesale markets. FERC’s present guidelines set up a rebuttable presumption that QFs with a capability of 20 MW or much less do not need non-discriminatory entry to wholesale markets. Within the NOPR, FERC proposed to cut back the rebuttable presumption for small energy manufacturing QFs to 1 MW or much less. In response to feedback filed by the Nationwide Hydropower Affiliation and others, the Ultimate Rule limits utility of the rebuttable presumption to small energy manufacturing QFs with a capability of 5 MW or much less. This modification will enable utilities to terminate their necessary buy obligation from small energy manufacturing QFs with a capability between 20 MW and 5 MW.
The Ultimate Rule will grow to be efficient 120 days after publication within the Federal Register. Adjustments adopted within the Ultimate Rule are efficient prospectively and aren’t supposed to have an effect on current contracts or LEOs or current facility certifications. For extra info on the Ultimate Rule, see our challenge alert.
CEQ Finalizes NEPA Rule
On July 15, 2020, the Council on Environmental High quality (CEQ) issued a Ultimate Rule revising its procedural rules implementing the Nationwide Environmental Coverage Act (NEPA). CEQ is liable for issuing rules addressing federal company compliance with the NEPA overview necessities. The Ultimate Rule is the primary main revision to CEQ’s NEPA rules since 1978, and is the newest in a collection of efforts by the Trump Administration to streamline federal company processes for allowing infrastructure initiatives.
The Ultimate Rule modifications most of the core parts of the NEPA overview course of. It revises the definition of environmental “results” by eliminating references to “direct,” “oblique,” and “cumulative” results and focuses the evaluation on results which can be fairly foreseeable and have a fairly shut causal relationship to the proposed motion. The Ultimate Rule additionally clarifies that “cheap alternate options” have to be “technically and economically possible” and meet the aim and wish for the proposed motion. Particularly, when the company’s motion includes a non-federal applicant, the event of cheap alternate options should think about the targets of the applicant. It additionally establishes deadlines of 1 yr for the federal company to challenge environmental assessments (EAs) and two years for environmental affect statements (EISs), in addition to web page limits of 75 pages for EAs, 150 pages for a routine EIS, and 300 pages for an EIS protecting a matter of “uncommon scope or complexity.” According to the One Federal Determination coverage, the place a number of federal companies have discretionary decision-making authority for a proposed mission, the companies should coordinate scheduling and, the place practicable, challenge a single environmental doc.
The Ultimate Rule will likely be efficient September 14, 2020. At the very least one criticism has been filed difficult the Ultimate Rule within the U.S. District Court docket for the Northern District of California. The revised rules apply to all NEPA processes that start after September 14, 2020. Companies have the discretion to use the revised rules to ongoing actions and environmental opinions. Federal companies should revise their agency-specific NEPA implementing rules by September 14, 2021. As an unbiased company, FERC has held that it isn’t sure by CEQ’s rules. Nevertheless, FERC executed the One Federal Determination Memorandum of Understanding and will decide to revise its NEPA procedures to be in keeping with CEQ’s revised guidelines.
For extra info, see our challenge alert.
Barton Named CEO of FirstLight Energy
On July 15, 2020, FirstLight Energy named Alicia Barton as its new chief government officer, efficient August 3, 2020. Ms. Barton served most just lately as President and CEO of the New York State Power Analysis and Growth Authority and beforehand as CEO of the Massachusetts Clear Power Middle. Ms. Barton will succeed John Shue, who has been CEO of FirstLight since 2016 and is retiring. FirstLight is the proprietor and operator of the Northfield Mountain pumped storage hydroelectric facility and various different vitality belongings in Massachusetts and Connecticut.
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