Below are summaries of the agenda items for the Federal Energy Regulatory Commission's December 16, 2021 open meeting, pursuant to the agenda issued on December 9, 2021. Items E-5 and E-12 have not been summarized due to omission.
In this issue…
- Electric Items
- Gas Items
- Hydro Items
- Certificate Items
Electric
E-1 – Managing Transmission Line Ratings (Docket No. RM20-16-000). On November 19, 2020, the Commission issued a Notice of Proposed Rulemaking (NOPR) relating to managing transmission line ratings. In the NOPR, the Commission initiated potential reforms to the pro forma Open Access Transmission Tariff in order to improve the accuracy and transparency of transmission line ratings pursuant to Section 206 of the Federal Power Act (FPA). The Commission states that inaccurate transmission line ratings may subsequently lead to unjust and unreasonable rates under its jurisdiction. Namely, the NOPR would require: transmission providers to implement ambient-adjusted ratings on the transmission lines over which they provide transmission service; regional grid operators to establish and implement the systems and procedures necessary to allow transmission owners to electronically update transmission line ratings at least hourly; and transmission owners to share transmission line ratings and transmission line rating methodologies with their respective transmission provider(s) and with their respective market monitor(s). During the ensuing comment period, a number of entities filed comments generally supportive of the NOPR framework. Agenda item E-1 may be a final rule stemming from the NOPR on improving transmission line ratings.
E-2 – Rate Recovery, Reporting, and Accounting Treatment of Industry Association Dues and Certain Civic, Political, and Related Expenses (Docket No. RM22-5-000). This new docket may be responsive to a petition filed by the Center for Biological Diversity requesting that the Commission open a rulemaking proceeding about industry association dues. At present, utilities are able to recover those association dues, minus disclosed spending on lobbying activities as defined by the IRS. The petition argued that dues should be presumptively non-recoverable through rates and utilities should have the burden of proving that particular expenses should be recovered in ratemaking. Agenda item E-2 may initiate a new rulemaking proceeding relating to Rate Recovery, Reporting, and Accounting Treatment of Industry Association Dues and Certain Civic, Political, and Related Expenses.
E-3 – Tenaska Clear Creek Wind, LLC v. Southwest Power Pool, Inc. (Docket No. EL21-77-000). On May 21, 2021, Tenaska Clear Creek Wind, LLC (Tenaska) filed a Complaint against Southwest Power Pool, Inc. (SPP) pursuant to Sections 206, 306, and 309 of the FPA. In the Complaint, Tenaska asserted that SPP has improperly allocated system upgrade costs related to the affected system studies for the Clear Creek Wind Project (Project). Tenaska requested that the Commission resolve the multi-year study process which has included the issuance of a restudy report assigning an additional $66 million in upgrades necessary to address reliability issues that pre-date interconnection of the Project to SPP transmission systems; respectively, the initial study comprised of $33 million in costs compared to the restudy proposal of $99 million total. On June 23, 2021, Tenaska filed a motion to hold the proceeding in abeyance, citing newly-established settlement discussions facilitated by the Commission's Dispute Resolution Service (DRS) in an attempt to reach an agreement on the issue presented in the Complaint. SPP filed comments on June 28, 2021, concurring with the Tenaska motion and informing the Commission that the parties would file an update on the status of DRS settlement discussions. On August 6, 2021, Tenaska submitted a motion to resume the Complaint proceeding, stating that the DRS efforts did not materialize in an agreement and that guidance from the Commission is necessary to reach an outcome. Agenda item E-3 may be an order on the Complaint as brought forward by Tenaska against SPP.
E-4 – Long Ridge Energy Generation LLC (Docket No. ER21-1225-003). On February 26, 2021, Long Ridge Energy Generation LLC (Long Ridge) filed an application for market-based rate (MBR) authorization and requested Commission approval for the proposed MBR Tariff as well as sales of energy, capacity, and ancillary services. On April 15, 2021, the Commission issued a deficiency letter requesting additional information on certain matters relating to the upstream ownership of Long Ridge. The Commission issued multiple requests for information in the ensuing months pertaining to the same issue in an attempt to clarify the nature of affiliations and voting equity interests in Long Ridge. On October 27, 2021, Long Ridge filed a request for expedited processing of the February 26 MBR application, asserting that it has furnished complete responses to the Commission and that Long Ridge meets the criteria for MBR authorization even with the role of expanded affiliates. Agenda item E-4 may be an order on the Long Ridge MBR application.
E-5 – Omitted
E-6 – PJM Interconnection, L.L.C., Atlantic City Electric Company, Delmarva Power & Light Company, and PECO Energy Company (Docket Nos. ER21-2965-000, ER21-2965-001). On September 29, 2021, Atlantic City Electric Company (ACE), Delmarva Power & Light Company (Delmarva), and PECO Energy Company (PECO) filed proposed modifications to their formula transmission rates as contained in the PJM Interconnection, L.L.C. (PJM) Tariff. Namely, the Tariff revisions would revise the Transmission Wages and Salary Allocator to include labor received and to be received from their affiliated utility services companies related to a single common control center facility. Several parties, including municipal groups and industrial energy users, filed substantive protests during the comment period, commonly pointing to a lack of transparency and justification on the proposed Allocator methodology and associated cost allocation. Agenda item E-6 may be an order on the proposed formula transmission rate revisions to the PJM Tariff as brought forward by ACE, Delmarva, and PECO.
E-7 – PJM Interconnection, L.L.C. (Docket No. ER21-1635-002). On April 7, 2021, PJM filed proposed revisions to Schedule 6A of its Tariff, pursuant to Section 205 of the FPA. The revisions included changes to certain non-rate provisions for Black Start Service, including commitment and termination periods and outage and substitution restrictions for Black Start Units. On August 10, 2021, the Commission issued an order accepting most of the proposed Tariff revisions and directing PJM to submit a compliance filing in order to address certain compliance directives including specification of formula inputs and processes to perform annual updates. On September 9, 2021, PJM submitted the compliance filing furnishing the requested information. Agenda item E-7 may be an order on the compliance filing relating to the proposed Tariff revisions by PJM.
E-8 – Gallatin Power Partners, LLC (Docket No. QF21-1213-000). On September 2, 2021, Gallatin Power Partners, LLC (Gallatin) submitted Form No. 556 for the Shields Valley Solar Project for self-certification as a qualifying facility (QF) for small power production under the Public Utility Regulatory Policies Act (PURPA). The Project would comprise 160 MW in nameplate capacity from solar generation, limited to a maximum net power production capacity of 80 MW in order to not breach the PURPA threshold. On October 1, 2021, NorthWestern Corporation (NorthWestern) filed a Protest, alleging that the Project contravenes PURPA due to the 160 MW capacity and therefore the Commission should revoke its QF self-certification. NorthWestern also requested that the Commission evaluate the Project based on all of its components, which includes battery storage systems in addition to the solar generating facility. Agenda item E-8 may be an order on the Form No. 556 submission by Gallatin for QF status of the Shields Valley Solar Project.
E-9 – System Energy Resources, Inc. (Docket No. ER21-142-000). On October 19, 2020, System Energy Resources, Inc. (SERI) submitted a limited amendment to add formula rate protocols to the Unit Power Sales Agreement (UPSA), a wholesale rate schedule on file with the Commission. SERI proposes to establish a process for the annual exchange of information concerning the development of UPSA rates including information request and informal challenge procedures. SERI alludes to a prior favorable outcome reached in Docket No. EL18-152, where the Commission recommended adoption of the protocols contained in this filing. Agenda item E-9 may be an order on the UPSA addition to the formula rate as proposed by SERI.
E-10 – Smoky Mountain Transmission LLC (Docket No. ER22-187-000). On October 22, 2021, Smoky Mountain Transmission LLC (SMT) filed requests for waivers of certain accounting and reporting requirements and blanket authorization to issue securities and assume liabilities, pursuant to Section 204 of the FPA and Part 34 of the regulations of the Commission. SMT indicates that, by owning and operating limited and discrete transmission facilities solely used by an affiliate, there is no other generation or load connected to the facilities and therefore it is not a traditional public utility subject to Commission jurisdiction. Agenda item E-10 may be an order on the waiver requests and blanket authorization as brought forward by SMT.
E-11 – Tucson Electric Power Company (Docket No. ER10-2564-011), UNS Electric, Inc. (Docket No. ER10-2600-011), UniSource Energy Development Company (Docket No. ER10-2289-011), Tucson Electric Power Company (Docket No. EL22-5-000). On June 21, 2021, Tucson Electric Power Company (Tucson Electric), UNS Electric, Inc. (UNS), and UniSource Energy Development Company (UED) (collectively, UNS Parties) submitted a notice of non-material change in status, pursuant to Section 205 of the FPA and in accordance with Order Nos. 652, 697, and 816. Given that the UNS Parties hold MBR authority as granted previously the Commission, the filing includes new information relating to the commencement of two new power purchase agreements (PPAs). UNS Parties state that the new PPAs will not alter the lack of horizontal or vertical market power in relevant geographic markets. Agenda item E-11 may be an order on the notice as filed by UNS Parties.
E-12 – Omitted
E-13 – PacifiCorp (Docket No. ER21-1772-001), Sierra Pacific Power Company (Docket No. ER21-1774-001), Nevada Power Company (Docket No. ER21-1775-001). On April 27, 2021, PacifiCorp, Sierra Pacific Power Company, and Nevada Power Company (collectively, the BHE Entities) submitted proposed amendments to their respective MBR Tariffs, pursuant to Section 205 of the FPA and Part 35 of the regulations of the Commission. The BHE Entities sought to revise the provisions in order to permit a limited category of sales between themselves that are, at present, prohibited by the market power mitigation in the respective MBR Tariffs. The BHE Entities assert that, due to emergency power shortage conditions such as the heat wave in August of 2020, the restrictions should be lifted under extenuating circumstances to ensure system operation and reliability. On June 25, 2021, the Commission issued an order rejecting the proposed MBR Tariff amendments and denied the BHE Entities the ability to transact at prevailing market prices during emergency conditions. On July 26, 2021, the BHE Entities filed a request for rehearing of the June 25 order, citing a prior limited waiver granted by the Commission for a similar circumstance. Agenda item E-13 may be an order on the request for rehearing by BHE Entities.
E-14 – Southwest Power Pool, Inc. (Docket No. ER21-2676-000), Midcontinent Independent System Operator, Inc. (Docket No. ER21-2677-000), American Electric Power Service Corporation v. Midcontinent Independent System Operator, Inc. and Southwest Power Pool, Inc. (Docket No. EL17-89-000), City of Prescott, Arkansas v. Southwestern Electric Power Company and Midcontinent Independent System Operator, Inc. (Docket No. EL19-60-000). On September 15, 2017, American Electric Power Service Corporation (AEPSC), on behalf of its operating company affiliate, Southwestern Electric Power Company (SWEPCO), filed a complaint against MISO and SPP, pursuant to Sections 206, 306, and 309 of the FPA. The complaint alleged, inter alia, that MISO violated the Joint Operating Agreement between MISO and SPP regarding the assessment of certain congestion charges associated with SWEPCO loads that are pseudo-tied out of MISO and into SPP. On April 5, 2019, pursuant to Sections 206, 306, and 309 of the FPA, the City of Prescott, Arkansas (Prescott) filed a complaint against SWEPCO and against MISO. The complaint alleged, inter alia, that (1) an Amended Power Supply Agreement (PSA) between Prescott and SWEPCO is unjust and unreasonable and should be amended in certain respects or terminated; (2) the PSA requires SWEPCO to implement the effective MISO congestion hedging strategy; or, in the alternative, that the PSA violates the public interest by depriving Prescott of an effective hedge for MISO congestion charges and justifies termination of the PSA; and (3) that MISO violated the Joint Operating Agreement between MISO and SPP and must coordinate with SPP to eliminate pancaked transmission charges to Prescott. On September 19, 2019, the Commission issued an order granting and denying the Complaint in part, setting certain issues for hearing and settlement judge procedures, and establishing a refund effective date of April 5, 2019. During settlement hearing procedures, the parties submitted an Offer of Settlement in Docket No. EL19-60 on January 24, 2020. The matters at hand in Docket No. EL17-89 were brought before the Chief Judge through a number of filings and a technical conference convened on November 10, 2020. On April 15, 2021, the Commission issued a further order on complaints following briefing and technical conference, addressing a number of outstanding material issues in the proceedings. On May 17, 2021, MISO filed a request for rehearing of the April 15 order, namely pertaining to two items: holding that the data submitted by MISO and SPP substantiate that the RTOs have been assessing unjust and unreasonable overlapping congestion charges on pseudo-tied load and resources between the two grid operators and reversing course by holding that existing hedging mechanisms are inadequate in addressing the overlapping congestion charges. On July 20, 2021, the Commission issued an order addressing arguments raised on rehearing and granting clarification in part. Principally, the order furnished detail on the discussion portion of prior orders and reaffirmed that the record evidence was sufficient to reach a conclusion, but ultimately did not revise the end result in the proceeding. Agenda item E-14 may be a final order on the proceedings.
E-15 – NedPower Mount Storm, LLC (Docket No. ER20-2471-003). On July 22, 2020, NedPower Mount Storm, LLC (NedPower) submitted a rate schedule for Reactive Supply and Voltage Control from Generation Sources Service as defined in Schedule 2 of the PJM Tariff, specifying the revenue requirement from the NedPower facility. On November 27, 2020, the Commission issued an order accepting the rate schedule and established settlement judge procedures for hearing. During settlement discussions, NedPower and PJM reached an agreement in May of 2021. On June 17, 2021, NedPower filed a Joint Offer of Settlement and Settlement Agreement in order to resolve all outstanding issues previously set for hearing. The settlement judge issued a certification of uncontested settlement on July 23, 2021 and the Commission subsequently terminated settlement judge procedures on August 5, 2021. Agenda item E-15 may be an order on the Joint Offer of Settlement and Settlement Agreement as brought forward by NedPower.
E-16 – Nebraska Public Power District v. Tri-State Generation and Transmission Association, Inc. and Southwest Power Pool, Inc. (Docket No. EL21-100-000). On September 1, 2021, the Nebraska Public Power District (NPPD) filed a complaint against Tri-State Generation and Transmission Association, Inc. (Tri-State) and SPP, pursuant to Sections 206 and 306 of the FPA and Rule 206 of the Rules of Practice and Procedure of the Commission. In the complaint, NPPD requests that the Commission find that, by including certain amounts in its 2021 Annual Transmission Revenue Requirement (ATRR), Tri-State is producing unjust and unreasonable rates for transmission service under the SPP Tariff. In particular, NPPD states that a Joint Transmission Agreement with Tri-State is included in the ATRR, despite the termination of the agreement in November of 2020. Agenda item E-16 may be an order on the complaint by NPPD against Tri-State and SPP.
E-17 – Arcadia Solar, LLC and WGL Georgia Project Group, LLC (Docket No. EL21-60-000), Arcadia Solar (Docket No. QF21-480-001), WGL Georgia Project Group, LLC (Docket Nos. QF21-481-001, QF21-482-001, QF21-483-001). On March 19, 2021, Arcadia Solar, LLC and WGL Georgia Project Group, LLC (collectively, Petitioners) filed a Petition for Declaratory Order requesting a partial waiver from the filing requirement of section 292.203(a)(3) of the regulations of the Commission for four QF small power production facilities. Petitioners seek the partial waiver so that the facilities will be granted QF treatment for the purposes of exemption from the FPA, the Public Utility Holding Company Act (PUHCA), and certain state laws and regulations. The facilities are each solar generating units of less than 1 MW net rating. Agenda item E-17 may be an order on the petition.
Gas
G-1 – Rover Pipeline LLC and Energy Transfer Partners, L.P. (Docket No. IN17-4-000). Agenda item G-1 may initiate a new investigation relating to the certification process of the 711-mile interstate natural gas pipeline owned and operated by Rover Pipeline LLC and Energy Transfer Partners, L.P.
Hydro
H-1 – Safety of Water Power Projects and Project Works (Docket No. RM20-9-000). On July 16, 2020, the Commission issued a NOPR to amend the regulations of governing the safety of hydroelectric projects pursuant to the FPA. Namely, the Commission proposed to revise its regulations to incorporate two tiers of project safety inspections by independent consultants, codify existing guidance requiring certain licensees to develop a dam safety program and a public safety plan, and update existing regulations related to public safety incident reporting. Multiple entities filed comments during the ensuing intervention period, largely in favor of the general tenets of the NOPR in moving toward enhanced safety practices of hydroelectric projects. Agenda item H-1 may be an order adopting a final rule.
H-2 – Public Utility District No. 1 of Pend Oreille County, Washington (Docket No. P-2042-191). On June 10, 2019, the Public Utility District No. 1 of Pend Oreille County, Washington (Pend) submitted an Offer of Settlement, Joint Explanatory Statement, and Application for Amendment of License. The settlement pertains to the initial January 28, 2009 Settlement Agreement for the Box Canyon Hydroelectric Project No. 2042, located in northeastern Washington and northwestern Idaho. On June 25, 2021, the Commission issued the Environmental Assessment for the non-capacity license amendment, finding that if the proposed amendment is approved, with certain recommended measures set forth by Commission environmental staff, the project would continue to operate according to its license while providing protection and enhancements to water quality, aquatic resources, terrestrial resources, recreation, and cultural resources. Agenda item H-2 may be an order on the Offer of Settlement as brought forward by Pend.
H-3 – City of Danville, STS Hydropower, LLC, and Eagle Creek Schoolfield, LLC (Docket No. P-2411-029). On June 14, 2021, STS Hydropower, LLC (STS) and City of Danville (Danville) filed an Application for Approval of Partial Transfer of License relating to the co-licensed Schoolfield Project No. 2411, located in Virginia. STS and Danville seek to replace STS with Eagle Creek Schoolfield (Eagle Creek) as co-licensee of the project. Agenda item H-3 may be an order on the license transfer application by STS and Danville.
H-4 – AEP Generation Resources Inc. and Eagle Creek Racine Hydro, LLC (Docket No. P-2570-033). On March 5, 2021, AEP Generation Resources Inc. (AEP) filed a Joint Application for Approval of Transfer of License relating to the Racine Hydroelectric Project No. 2570, located in Ohio. AEP seeks to replace itself with Eagle Creek Racine Hydro, LLC (Eagle Creek) as the potential applicant for pre-filing documents in the license proceeding upon the transfer of the project license. Agenda item H-4 may be an order on the license transfer application by AEP.
H-5 – South Feather Water and Power Agency (Docket No. P-2088-083). On September 2, 2021, South Feather Water and Power Agency (SFWPA) filed a request for approval of a Power Purchase Agreement (PPA) between itself and Northern California Power Agency (NCPA) pertaining to the South Feather Power Project No. 2088, located in California. SFWPA seeks approval of the PPA in order to sell power for a period beyond expiration of its existing license in accordance with Section 22 of the FPA. Agenda item H-5 may be an order on the request for approval of the PPA between SFWPA and NCPA.
H-6 – Public Utility District No. 1 of Chelan County, Washington (Docket No. P-943-134). On September 22, 2021, Public Utility District No. 1 of Chelan County, Washington (Chelan PUD) filed a request for approval of a PPA between itself and Avista Corporation (Avista) pertaining to the Rock Island Hydroelectric Project No. 943. Chelan PUD seeks approval of the PPA in order to sell power for a period beyond expiration of its license in accordance with Section 22 of the FPA. Agenda item H-6 may be an order on the request for approval of the PPA between Chelan PUD and Avista.
Certificates
C-1 – Midship Pipeline Company, LLC (Docket No. CP17-458-010). On May 31, 2017, Midship Pipeline Company, LLC (Midship) filed, pursuant to section 7(c) of the Natural Gas Act (NGA), an application for authorization to construct and operate the proposed Midcontinent Supply Header Interstate Pipeline Project (MIDSHIP Project). The MIDSHIP Project was designed to provide up to 1,440 million standard cubic feet (MMcf) per day of firm transportation capacity from the South Central Oklahoma Oil Province, and the Sooner Trend Anadarko Basin Canadian and Kingfisher gas plays in the Anadarko Basin in Oklahoma, to existing natural gas pipelines near Bennington, Oklahoma, for subsequent transport to Gulf Coast and Southeast markets. On August 13, 2018, the Commission issued an Order Issuing Certificate approving the MIDSHIP Project with environmental conditions. On May 1, 2019, Midship filed, pursuant to section 7(c) of the NGA, an application to amend its certificate of public convenience and necessity issued on August 13, 2018, to implement cost-based interim recourse rates to enable Midship to provide up to 1,100,000 dekatherms per day (Dth/d) of interim transportation service on the MIDSHIP Project. On September 6, 2019, the Commission granted Midship's request to phase construction of the Project and approved interim rates for service in an amount of up to 1,100 MMcf/d. On March 18, 2021, following two years of filings related to environmental compliance, the Commission issued an order directing Midship to take immediate action to remedy unresolved restoration issues on certain land tracts. On May 2, 2021, Midship mobilized to address the restoration issues. On October 1, 2021, the Commission issued a letter indicating that Midship had sufficiently complied with the directives identified in the March 18 order. On November 1, 2021, Central Land Consulting (CLC) filed a request for rehearing of the October 1 letter, stating that the restoration efforts were inadequate and did not meet landowner expectations. CLC alleges that the Commission did not investigate specific issues raised by an affected landowner and therefore rendered an arbitrary and capricious conclusion. Agenda item C-1 may be an order on the rehearing request as brought forward by CLC.
C-2 – Midship Pipeline Company, LLC (Docket No. CP17-458-011). Agenda item C-2 may establish a new sub-docket in the proceeding relating to the MIDSHIP Project as developed by Midship.
C-3 – Midship Pipeline Company, LLC (Docket No. CP17-458-012). Agenda item C-3 may establish a new sub-docket in the proceeding relating to the MIDSHIP Project as developed by Midship.
C-4 – PennEast Pipeline Company, LLC (Docket Nos. CP15-558-000, CP19-78-000, CP20-47-000). On September 24, 2015, PennEast Pipeline Company, LLC (PennEast) submitted an application pursuant to section 7(c) of the Natural Gas Act for a certificate of public convenience and necessity (CPCN) to construct the PennEast Pipeline Project. The project includes approximately 116 miles of 36-inch diameter pipeline, three lateral pipelines, one compressor station, and related facilities to provide up to 1,107,000 dekatherms per day of new firm natural gas transportation capacity. On January 19, 2019, the Commission issued an order authorizing the project and issuing the CPCN. On January 30, 2020, the Commission issued an order on a petition for declaratory order concerning the scope of PennEast's eminent domain authority under section 7(h) of the Natural Gas Act. On January 30, 2020, PennEast, LLC filed, pursuant to section 7(c) of the NGA, an Application for Amendment to Certificate of Public Convenience and Necessity for the PennEast Pipeline Project (Amendment Application). The Amendment Application requests authority to construct, own, and operate the project in two phases to accommodate delays in obtaining governmental authorizations and acquiring property rights in New Jersey. On March 19, 2020, the Commission issued an order amending the CPCN based on the Amendment Application. On August 3, 2020, Commission Staff issued an Environmental Assessment in which they determined that if PennEast constructs and operates the proposed facilities in accordance with its application and supplements, and recommended mitigation measures, approval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment. On November 30, 2021, PennEast submitted a letter to the Commission indicating that all further development on the project has ceased, due to permit approval challenges and various regulatory hurdles. Agenda item C-4 may be an order relating to the change in status of the project in light of the recent disclosure by PennEast that development will not continue.
C-5 – Pacific Connector Gas Pipeline, LP (Docket No. CP17-494-004), Jordan Cove Energy Project L.P. (Docket No. CP17-495-004). On September 21, 2017, Jordan Cove Energy Project L.P. (Jordan Cove) submitted, pursuant to Section 3(a) of the Natural Gas Act (NGA), an application for authorization to site, construct, and operate a liquefied natural gas terminal in Coos Bay, Oregon, capable of liquefying up to 1.04 billion cubic feet of natural gas per day for export to overseas markets (Jordan Cove Liquefied Natural Gas Project). On September 21, 2017, Pacific Connector Gas Pipeline, LP (PCGP) submitted, pursuant to Section 7 of the Natural Gas Act (NGA), an application for a Certificate of Public Convenience and Necessity (CPCN) to construct and operate a natural gas transmission pipeline providing about 1.2 billion cubic feet per day of natural gas from the Malin hub to the Jordan Cove terminal, crossing portions of Klamath, Jackson, Douglas, and Coos Counties, Oregon (Pacific Connector). On November 15, 2019, Commission staff issued an Environmental Impact Statement (EIS) concluding that approval of both the Jordan Cove Liquefied Natural Gas Project and the Pacific Connector would result in a number of significant environmental impacts; however, the majority of impacts would be less than significant because of the impact avoidance, minimization, and mitigation measures proposed by Jordan Cove and Pacific Connector and those recommended by staff in the EIS. On March 19, 2020, the Commission issued an order authorizing the project. On April 21, 2020, Pacific Connector Gas Pipeline, LP and Jordan Cove Energy Project L.P. (Applicants) submitted a Petition for Declaratory Order finding that the Oregon Department of Environmental Quality (ODEQ) waived its ability to issue certification for the Jordan Cove LNG Terminal and Pacific Connector Pipeline pursuant to Section 401 of the Clean Water Act (CWA). A number of stakeholders and intervening parties filed substantive comments and protests to the Petition, alleging that Applicants had previously stated in local proceedings that a CWA permit from ODEQ would be acquired as a condition for constructing the Jordan Cove LNG Terminal and Pacific Connector Pipeline. The Petition stated that in light of ODEQ failing to issue a denial within one year of October 2017, it has waived its authority under the CWA. On January 19, 2021, the Commission issued an order denying the Petition, finding that Jordan Cove and PCGP did not request Section 401 certification and, consequently, ODEQ did not waive its authority. On May 10, 2021, Jordan Cove and PCGP submitted a letter informing the Commission that they had decided to pause the development of the project. On November 1, 2021, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) issued a decision remanding the record in the proceedings for the Commission to contemplate whether an imposition of a stay of the authorization for the project is appropriate. On November 18, 2021, the Commission issued an order establishing briefing pursuant to the DC Circuit decision; initial briefs were due on December 1, 2021. Jordan Cove and PCGP submitted their initial brief on December 1, 2021, stating that following a review of the status of securing state-level approvals and permits, the project will not continue and therefore a decision regarding a stay is moot. Agenda item C-5 may be an order vacating the authorization for the project as requested by Jordan Cove and PCGP in their initial brief.
Jackie Ostrogorsky (Associate, White & Case, Washington, DC) contributed to the development of this publication.
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