Below are summaries of the agenda items for the Federal Energy Regulatory Commission's November 17, 2022 open meeting, pursuant to the sunshine notice released on November 10, 2022.
In this issue…
- Electric Items
- Gas Items
- Hydro Items
- Certificate Items
Electric
E-1 – Registration of Inverter-Based Resources (Docket No. RD22-4-000). Agenda item E-1 may initiate a new proceeding relating to the formation of electric reliability standards for the registration of inverter-based resources.
E-2 – Reliability Standards to Address Inverter-Based Resources (Docket No. RM22-12-000). Agenda item E-2 may initiate a new rulemaking proceeding relating to reliability standards to address inverter-based resources.
E-3 – North American Electric Reliability Corporation (Docket No. RD22-5-000). On June 14, 2022, the North American Electric Reliability Corporation (NERC) filed a Petition for Approval of Proposed Reliability Standards, pursuant to Section 215(d)(1) of the Federal Power Act (FPA). In the petition, NERC describes the perceived benefits of adding two new Reliability Standards, respectively entitled FAC-001-4 (Facility Interconnection Requirements) and FAC-002-4 (Facility Interconnection Studies). Namely, NERC states that the two new Reliability Standards would ensure that changes to existing interconnected facilities that may present impacts to bulk power system operations and reliability would be properly addressed in interconnection requirements and studies. Agenda item E-3 may be an order on the proposed Reliability Standards as brought forward by NERC.
E-4 – Omitted
E-5 – TransAlta Energy Marketing (U.S.) Inc. (Docket No. ER21-58-001). On October 7, 2020, and as supplemented on July 19, 2021, TransAlta Energy Marketing (U.S.) Inc. (TransAlta) submitted a Notice and Justification for Spot Sales above the Western Electricity Coordinating Council (WECC) Soft Cap, pursuant to Section 205 of the FPA. In the notice, TransAlta detailed certain arrangements where it delivered electricity to buyers, as a power marketer, during periods of scarcity at prices exceeding the threshold established by the WECC Soft Cap. TransAlta asserted that none of the buyers had retroactively sought Commission authorization for refunds of those purchases. On June 17, 2022, the Commission issued an order directing TransAlta to refund to buyers a portion of amounts paid for compensation for the delivery of electricity exceeding the WECC Soft Cap prices. On July 15, 2022, TransAlta filed a request for rehearing of the June 17 order, arguing that the Commission had acted in an arbitrary and capricious manner and contravened the intent of Order No. 831, in which it was deemed reasonable to permit certain transactions above the Soft Cap when warranted. Agenda item E-5 may be an order on the request for rehearing by TransAlta.
E-6 – Sempra Gas & Power Marketing, LLC (Docket No. ER21-2462-000). On July 19, 2021, Sempra Gas & Power Marketing, LLC (SGPM) submitted a Cost Justification Filing relating to certain spot sales above the WECC Soft Cap, pursuant to Section 205 of the FPA. In the notice, SGPM detailed certain arrangements where it delivered electricity in August of 2020 at spot prices exceeding the WECC Spot Cap due to extreme heat conditions and adverse ambient temperatures. SGPM asserted that, in compliance with prior Commission directives, the above-index prices were consistent with prevailing market conditions. SGPM also claimed that none of the buyers had retroactively sought Commission authorization for refunds of those purchases. In 2021, the Commission issued a Guidance Order providing guidance on different frameworks that sellers can rely on to justify sales in excess of the WECC soft cap. Under each framework, sellers can demonstrate that sales above the cap were "just and reasonable." Agenda item E-6 may be an order on the cost justification filing by SGPM.
E-7 – Tri-State Generation and Transmission Association, Inc. (Docket No. ER21-2457-000). On July 19, 2021, Tri-State Generation and Transmission Association, Inc. (Tri-State) submitted a Cost Justification Filing relating to certain spot sales above the WECC Soft Cap, pursuant to Section 205 of the FPA. In the notice, Tri-State detailed certain arrangements where it delivered electricity in August of 2020 at spot prices exceeding the WECC Spot Cap due to extreme heat conditions and adverse ambient temperatures. Tri-State asserted that, in compliance with prior Commission directives, the above-index prices were consistent with prevailing market conditions. On August 6, 2021, Southern California Edison Company and Pacific Gas and Electric Company filed a joint protest to the cost justification, stating that Tri-State had not sufficiently justified exceeding the Soft Cap and therefore should refund costs exceeding the Soft Cap to buyers, as well as affirming that the Mobile-Sierra doctrine does not absolve Tri-State from their cost justification obligations. On August 9, 2021, the Department of Market Monitoring of the California Independent System Operator Corporation (CAISO DMM) filed comments indicating that, in some circumstances, sellers had not adequately furnished cost justification for breaching the Soft Cap. Accordingly, the CAISO DMM requested that the Commission issue clear guidance to provide better regulatory certainty for such matters going forward. Agenda item E-7 may be an order on the cost justification filing by Tri-State.
E-8 – El Paso Electric Company (Docket No. ER21-61-003). On October 7, 2020, El Paso Electric Company (EPE) submitted a supplemental filing of justification for transactions above WECC Soft Cap, pursuant to Section 205 of the FPA. In the filing, EPE stated that the transactions were in compliance with both the index and opportunity cost framework previously outlined in Commission guidance. EPE claimed that its transactions above the WECC Soft Cap were justified because it possessed the ability to transact at other points of sale during the period of scarcity, and accordingly, the buyers agreed to pay index prices presumed reasonable under the Mobile-Sierra doctrine. On June 16, 2022, the Commission issued an order directing EPE to refund to buyers a portion of amounts above the average index price for sales delivered on August 18, 2020. On July 15, 2022, EPE filed a request for rehearing of the June 16 order, stating that the Commission had erred in adopting an arbitrary justification for sales prices above the price index and ignored relevant evidence of purchase price and costs. Agenda item E-8 may be an order on the request for rehearing by EPE.
E-9 – Brookfield Renewable Trading and Marketing LP (Docket No. ER21-2370-000). On July 7, 2021, Brookfield Renewable Trading and Marketing LP (BRTM) filed a justification (the BRTM Justification) for one bilateral sale of energy delivered on June 17, 2021 (the Reportable Transaction). The Reportable Transaction was a "spot market sale" in the Western Electricity Coordinating Council (WECC) outside of the California Independent System Operator Corporation (CAISO) at a price in excess of the $1,000/MWh soft cap applicable to WECC spot market sale. On August 6, 2021, Southern California Edition Company (SCE) and Pacific Gas and Electric Company (PG&E) filed a protest contending that index liquidity standards should be applied only with respect to the specific time period in which a transaction occurs and that Mobile-Sierra presumption does not apply to the BRTM Justification. On August 9, 2021, the Department of Market Monitoring of the CAISO (DMM) filed a Motion to Comment Out-of-Time regarding the framework for sales above the soft cap adopted in the 2010 WECC Cap Order and the 2021 Guidance Order. On August 23, 2021, BRTM filed a motion for leave to answer and answer to SCE and PG&E protests and the comments of DMM arguing that the Commission should reject the arguments raised by SCE, PG&E, and DMM and accept for filing the BRTM Justification. Agenda item E-9 may be an order on the BRTM Justification.
E-10 – Rainbow Energy Marketing Corporation (Docket No. ER21-2456-000). On July 9, 2021, Rainbow Energy Marketing Corporation (Rainbow) submitted a report justifying a few bilateral sales (Rainbow Justification) made on June 17, 2021 above the soft price cap for short-term, spot market sales within the Western Electricity Coordinating Council (WECC). On August 6, 2021, Southern California Edison Company (SCE) and Pacific Gas & Electric Company (PG&E) filed a Protest to the Rainbow Justification arguing that that Commission should not follow precedent for standards establishing index liquidity, and suggesting that the Mobile-Sierra Doctrine does not apply to bilateral sales in the WECC. On August 9, 2021 the Department of Market Monitoring of the CAISO (DMM) filed Comments based on issues raised by the cost justification filings for sales above the $1,000/MWh soft cap in June 2021. DMM has asked that the Commission provide further clarity and transparency on how the requirements and principles in the 2021 Guidance Order will be applied in specific cases and market conditions going forward. Agenda item E-10 may be an order on the Rainbow Justification.
E-11 – Guzman Energy LLC (Docket No. ER21-56-001). On July 15, 2022, Guzman Energy LLC (Guzman) filed a Request for Rehearing of the June 16, 2022 Order of Guzman Energy LLC under ER21-56, regarding the justification for spot market sales that exceeded the Western Electric Coordinating Council (WECC) soft price cap of $1,000/MWh during the summer months of 2020. In the June 16, 2022 order, the Commission found that Guzman had justified making the identified August 2020 spot market sales up to the average index prices, but that it had not justified the premium above the index price for one its sales the Commission found that Guzman On July 15, 2022 the California Public Utilities Commission (CPUC) also submitted a Request for Rehearing of the June 16, 2022 Order of Guzman Energy LLC under ER21-56. On August 18, 2022, the Commission filed a Notice of Denial of Rehearing by Operation of Law and Providing for Further Consideration. Agenda item E-11 may be an order on the original rehearing request.
E-12 – Chaves County Solar II, LLC (Docket No. ER22-2516-000). On July 28, 2022, Chaves County Solar II, LLC (Chaves II) submitted for filing a motion for a limited tariff waiver (Waiver Request) to allow for a five-and-a-half-month extension of the December 15, 2022 commercial operation date milestone in its Generator Interconnection Agreement (GIA) with Southwest Power Pool, Inc. (SPP) and Southwestern Public Service Company (Southwestern Public Service). Following discussion with Commission staff Chaves II filed a supplement on September 2, 2022. The supplement specified that by requesting such waiver, Chaves II was specifically requesting waivers of sections 2.3.2 and 11.2 of the GIA, which requires Chaves II, as the interconnection customer, to install the generating facilities within three years of the commercial operation date. Agenda item E-12 may be an order on the request for limited tariff waiver.
E-13 – Office of the Ohio Consumers' Counsel v. American Electric Power Service Corporation, American Transmission Systems, Inc., and Duke Energy Ohio, LLC (Docket No. EL22-34-000). On February 24, 2022, the Office of Ohio Consumers' Counsel (OCC) filed a complaint (OCC Complaint) against American Electric Power Service Corporation (AEPSC), American Transmission Systems, Inc. (ATSI) and Duke Energy Ohio, LLC (Duke) and argues that the Commission should declare the respondents ineligible for the transmission incentive for participation in a Transmission Organization (RTO Adder) as it provides, at consumer expense, a 50 basis point adder to a transmission owner's Return on Equity (ROE) for participation in a Transmission Organization such as Regional Transmission Organization (RTO) or an Independent System Operator (ISO). OCC argues the incentive allows profits for nothing, at consumer expense. On March 3, 2022 AEPSC filed an Unopposed Motion for Extension of Time and Waiver of Period for Responses, which was granted by the Commission on March 8, 2022. On March 28, 2022 AEPSC filed a Motion to Dismiss the OCC Complaint arguing that AEPSC is not a public utility and does not have a transmission rate on file and never has. Thus, AEPSC was never awarded a transmission rate incentive. On March 31, 2022, Buckeye Power, Inc. (Buckeye) filed a Motion to Intervene and Comments in Support of Complaint. Buckeye argued that ATSI, AEPSC, and Duke are ineligible for the RTO Adder, at least to the extent applied to their or their affiliate's Ohio facilities and charged to Ohio load, because Ohio law requires participation in a Transmission Organization whereas voluntary participation is a threshold requirement for an Adder under Commission policy. ATSI and Duke separately filed individual Motions to Dismiss and Answer to OCC's Complaint on March 31, 2022. AEPSC filed an Answer to the OCC Complaint on March 31, 2022. On April 12, 2022 OCC filed its Answer to the separate answers filed by ATSI, Duke, and AEPSC on March 31, 2022. On April 28, 2022 ATSI filed a Motion to Leave to Answer and Answer and Response to OCC's Answer filed on April 15, 2022. On May 5, 2022, AEPSC filed a Motion to Leave to Answer and Answer to Response to OCC's Answer filed on April 15, 2022. On May 13, 2022, Buckeye filed an Answer to ATSI's and AEPSC's answers filed on April 28 and May 5 respectively. Agenda item E-13 may be an order on OCC's original complaint.
E-14 – CID Solar, LLC, Cottonwood Solar, LLC, Onward Solar Gen-Tie, LLC, and RE Columbia, LLC (Docket No. EC22-91-000). On July 15, 2022, CID Solar, LLC, Cottonwood Solar, LLC, Onward Solar Gen-Tie, LLC, and RE Columbia, LLC (IIF Applicants), each of which is an indirect subsidiary of IIF US Holding 2 LP (IIF US Holding 2) filed a Joint Application for Authorization Under Section 203 of the Federal Power Act for the disposition of jurisdictional facilities that resulted from separate transactions (Transactions) involving the transfer on January 22, 2019 of an approximately 33.3% membership interest in IIF US Holding 2 GP, LLC (IIF US 2 GP), the general partner of IIF US Holding 2 LP, from one private individual, Mr. Randy Daniels, to another private individual, Ms. Rita Sallis; and (2) the transfer on December 17, 2020 of an approximately 33.3% membership interest in IIF US 2 GP from one private individual, Mr. Dennis Clarke, another private individual, Ms. Anne Cleary (Ms. Cleary and Ms. Sallis, together the Buyers). On August 5, 2022 Public Citizen, Inc. (Public Citizen) filed comments focusing on the exclusively on the relationship between IIF US Holding 2 and J.P. Morgan Investment Management Inc. (JPMIM) and between IIF US Holding 2 and IIF Int'l Holding L.P. (IIF Int'l). On August 22, 2022 the IIF Applicants filed a response to Public Citizen's comments arguing that the relationship between IIF US Holding 2, JPMIM, IIF US Holding 2 and IIF Int'l are not directly relevant to what the Commission is asked to authorize in its 203 application, which is the change in control resulting from Buyers' acquisition of membership interests in IIF US 2 GP. IIF Applicants argue that the issues raised by Public Citizen is already before the Commission in Docket No. EL21-36-000, where the Commission issued an order pursuant to section 206 of the Federal Power Act and set for paper hearing the issue of whether two affiliates of IIF US Holding 2 should be treated as affiliates of JPMIM under the separate prong set forth in section 35.36(a)(9)(iii). Agenda item E-14 may be an order on the IIF Applicants Section 203 application for the Transactions.
E-15 – Louisiana Public Service Commission, Arkansas Public Commission, and Council of the City of New Orleans, Louisiana v. System Energy Resources, Inc., Entergy Services, LLC, Entergy Operations, Inc., and Entergy Corporation (Docket No. EL21-56-000). On March 3, 2021, Louisiana Public Service Commission, Arkansas Public Service Commission and Council of the City of New Orleans (collectively the Retail Regulators) filed a joint complaint against System Energy Resources Inc. Entergy Operations, Inc., and Entergy Corporation (collectively SERI), seeking a remedy for the significant customer harm arising from years of imprudent operations and mismanagement of the Grand Gulf nuclear facility (the Complaint). The Complaint alleged that mismanagement of SERI's Grand Gulf Nuclear facility resulted in significant overcharges to SERI's four affiliated operating company customers (Entergy Arkansas, LLC; Entergy Louisiana, LLC; Entergy New Orleans, LLC; and Energy Mississippi, LLC) and their customers, pursuant to SERI's Unit Power Sales Agreement. On April 16, 2021 SERI filed a Motion to Dismiss the Retail Regulators Complaint. On May 17, 2021 the Retail Regulators filed their reply to SERI’s April 16th Motion to Dismiss. On February 22, 2022 the Retail Regulators filed a Motion for Commission Action pursuant to its original Complaint. The Retail Regulators urged the Commission to set the Complaint based on the Commission's statutory obligation to act expeditiously on the Retail Regulators' complaint. The Retail Regulators argued that such expeditious action was warranted as the 15-month refund period for complaints under FPA section 206 was established to promote fairness in recognition of the time it takes to resolve a complaint and the Commission's obligation to ensure just and reasonable rates. Additionally, they argued that because of the Commission's delay, SERI's imprudent management and operation of the Grand Gulf plant remains uninvestigated and the harm to ratepayers continues without remedy. On July 25, 2022 the retail Regulators filed a Renewed Motion for Commission Action to set the Original Complaint for hearing. On August 9, 2022 SERI filed their reply to the Retail Regulators Renewed Motion for Commission Action, contending that the Retail Regulators' Renewed Motion attempts to litigate the merits of the case by "alleging facts that post-date the complaint." On August 19, 2022 the Retail Regulators filed a Motion for Leave to Answer and Answer to SERI's August 9th Answer to the Renewed Motion. The Retail Regulators argue that SERI's August 9th Answer attempts to obfuscate the fact that three regulatory bodies with retail oversight over Entergy have been, for eighteen months, requesting that the Commission set the instant proceeding for hearing to address significant ratepayer harm caused by Grand Gulf's abysmal performance and safety record and attempts to shoehorn into the record new, supplemental legal theories and analyses that SERI should have raised in its original April 16, 2021 Motion to Dismiss. On November 14, 2022 SERI filed That, In The Event The Proceeding Is Set For A Hearing, The Presiding Officer Be Appointed In Compliance With Jarkesy v. SEC, 34 F. 4th 446 (5th Cir. 2022). SERI requested that in the event the Complaint is set for hearing that to comply with Jarkesy, the Commission must either (1) assign the matter to one or more of the Commissioners as the presiding officer(s); or (2) arrange for the designation of an ALJ as the presiding officer and then stay the proceeding pending a court ruling severing the statutory removal protections currently applicable to the Commission's ALJs. Agenda item E-15 may be an order setting the original Complaint for hearing.
E-16 – Cimarron Windpower II, LLC v. Southwest Power Pool, Inc. (Docket No. EL19-96-000). On September 10, 2019, Cimarron Windpower II, LLC (Cimarron) filed a complaint (Cimarron Complaint) that Southwest Power Pool (SPP) violated Attachment Z2 of its Open Access Transmission Tariff (SPP Tariff) and Article 11.4 of Cimarron Windpower II's Generator Interconnection Agreement (GIA) and failed to compensate to upgrade sponsors from users of sponsored projects for a seven-year period. On October 10, 2019, Xcel Energy Services Inc., filed a Motion to Intervene and Protest on behalf of Southwestern Public Service Company and Golden Spread Electric Cooperative, Inc. filed a Motion to Dismiss the Cimarron Complaint. On October 10, 2019, SPP filed its Answer to the Cimarron Complaint. SPP argued that the Commission's February 28, 2019 order on remand in Docket No. ER16-13413 and a plain reading of relevant provisions of the SPP Tariff, and the Cimarron's GIA with Sunflower Electric Power Corporation and SPP as well as SPP's status as a non-profit, regional transmission organization (RTO), confirm that Cimarron is not entitled to the Commission findings and the relief it seeks. On October 25, 2019, Cimarron filed its Answer to SPP's October 10, 2019 Answer. On November 12, 2019, Sunflower Electric Power Corporation and Mid-Kansas Electric Company, Inc. filed a Motion for Leave to Answer and Answer October 25, 2019 Answer by Cimarron Windpower II, LLC. On November 26, 2019 SPP filed a Motion for Leave to Answer and Answer Cimarron's October 25, 2019 Answer by Cimarron Windpower II, LLC. On December 11, 2019 Cimarron filed its response to SPP's November 26, 2019 Answer. On January 14, 2022 Cimarron, EDF Renewables, Inc., Enel Green Power North, America, Inc., NextEra Energy Resources, LLC, Oklahoma Gas and Electric Co., Post Rock Wind Project, LLC, Southern Power Company, and Western Farmers Electric Cooperative (the Indicated Upgrade Sponsors) responded to an "Informational Update Regarding Proposed Refund Plan" filed by SPP in Docket No. ER16-1341-003 on January 4, 2022, requesting that the Commission not issue any further order directing refunds until all pending Attachment Z2-related litigation is resolved. The Indicated Upgrade Sponsors requested that Pending Complaints in their various related dockets, including EL19-96 be resolved promptly before any refund plan is adopted and refund payments are ordered. Agenda item E-16 may be an order on Cimarron's original September 10, 2019 complaint.
E-17 – Western Farmers Electric Cooperative v. Southwest Power Pool, Inc. (Docket No. EL19-93-000). On August 22, 2019, Western Farmers Electric Cooperative (WFEC) filed a formal complaint against Southwest Power Pool, Inc. (SPP). Pursuant to sections 206, 306, and 309 of the Federal Power Act (FPA), the complaint addresses certain contractual and tariff commitments, under the SPP Open Access Transmission Tariff (OATT), providing for revenue credits vested to WFEC due to its funding of certain regional transmission facilities. In the complaint, WFEC asserts that Attachment Z2 of the SPP OATT allows for the recovery of revenue credits to which it is entitled, regardless of the demonstrated need or ultimate completion status of any related generation project(s). Additionally, WFEC states that the Network Integration Transmission Service Agreement under the SPP OATT provided for revenue credits to be retained in accordance with the calculation of other transmission customers' use of the upgrade facilities. WFEC requests that the Commission require that SPP to retain the revenue credits and not unwind prior payments received. A number of utilities in the SPP region filed motions to intervene and filed answers to respective issues raised by the complaint. On September 23, 2019, Xcel Energy Services Inc. (Xcel) submitted a protest, alleging that the complaint contravenes prior Commission directives established in Docket No. ER16-1341, which permitted SPP to retroactively rebill transmission service customers for Creditable Payment Obligation (CPO) transmission charges under Attachment Z2 of the OATT. In that order, the Commission affirmed that it was necessary to provide the compensation to upgrade sponsors from transmission service customers that benefitted from upgrades paid for by upgrade sponsors. However, following a petition for review filed by Xcel at the United State Court of Appeals for the D.C. Circuit, the Commission eventually issued an order on remand, reversing the prior order and concluding that the filed rate doctrine precluded the Commission from granting SPP to retroactively bill customers for Attachment Z2 CPO charges. Also on September 23, 2019, Golden Spread Electric Cooperative, Inc. submitted a motion to dismiss the complaint outright. Agenda item E-17 may be an order on the complaint as brought forward by WFEC.
E-18 – Southwest Power Pool, Inc. (Docket No. ER18-2404-001); Nebraska Public Power District (Docket No. EL21-68-000). On September 10, 2018, SPP filed a request for waiver regarding the one-year limitation on making billing adjustments under the terms of its Tariff in order to correct a circumstance where the Nebraska Public Power District (NPPD) was incorrectly charged twice the filed rate on record during a period from June 2016 through December 2017. On March 19, 2021, the Commission issued an order denying the waiver request, stating that approval would have constituted a violation of the filed-rate doctrine. On April 19, 2021, NPPD filed a new request for remedial relief, pursuant to Section 309 of the FPA. NPPD states that, due to a billing error, it was charged twice the filed rate for point-to-point transmission service as furnished in the SPP tariff as demonstrated in the prior docket, and therefore is under Commission jurisdiction to remedy such excessive charges borne by ratepayers despite the one-year adjustment limitation. Agenda item E-18 may be an order on the request for waiver as brought forward by NPPD.
E-19 – Oklahoma Gas and Electric Company v. Southwest Power Pool, Inc. (Docket No. EL19-77-000). In December of 2008, and amended on February 19, 2009, SPP executed a Sponsored Upgrade Agreement (SUA) with Oklahoma Gas and Electric Company (OG&E) for the Northwest-to-Woodward 345 kV transmission upgrade project, known as the Windspeed Transmission Line. In accordance with the goals set forth in Order No. 1000, and due to the nature of the transmission (wind development with no identified group of customers from which OG&E could recover the cost of their investment), the SUA included a provision where SPP would furnish revenue credits pursuant to its Tariff to defray the costs borne by OG&E in the development of the wind generation. Under Attachment Z2 in the SPP Tariff, the SUA would only terminate when OG&E had been credited with all Directly Assigned Upgrade Costs from SPP. The SUA stipulates that OG&E is entitled to payment of the revenue credits from users of the Windspeed Transmission Line if not conferred by SPP. On May 24, 2019, OG&E filed a formal complaint, recommending that the Commission rule that SPP not improperly deny reimbursement of revenue credits and order SPP to not seek refunds or wind those payments from line users. On February 20, 2020, the Commission issued an order denying the motion by SPP in related proceedings regarding the delay of implementation in granting refunds originating from Attachment Z2 calculations, whereby generation developers such as OG&E would be entitled to refund credits and/or an order directing SPP the manner in which to proceed regarding the outstanding revenue credits related to the OG&E project. On January 4, 2022, SPP filed an informational filing in all of the respective Attachment Z2 proceedings, stating that the Commission should not issue any further order(s) directing refunds until all pending action regarding the refund process has been resolved. On January 14, 2022, the indicated upgrade sponsors in the respective dockets filed a separate response to the January 4 letter and implored the Commission to resolve the complaints promptly before any refund plan is adopted and, consequently, refund payments are ordered. Agenda item E-19 may be an order on the complaint as brought forward by OG&E.
E-20 – EDF Renewables, Inc., Enel Green Power North America, Inc., NextEra Energy Resources, LLC, and Southern Power Company v. Southwest Power Pool, Inc. (Docket No. EL19-75-000). On May 9, 2019, EDF Renewables, Inc., Enel Green Power North America, Inc., NextEra Energy Resources, LLC, and Southern Power Company (collectively, Complainants) filed a formal complaint against SPP regarding the same issue at-hand described in agenda item E-19, namely the failure of SPP to implement Attachment Z2 of the SPP Tariff. In the filing, Complainants sought that the Commission fashion a remedy to allow Complainants to retain all the credits and interest paid to date and to find that any remaining credits and interest owed are due immediately at the time of filing. On February 20, 2020, the Commission issued an order denying the motion by SPP in related proceedings regarding the delay of implementation in granting refunds originating from Attachment Z2 calculations, whereby generation developers such as Complainants would be entitled to refund credits and/or an order directing SPP the manner in which to proceed regarding the outstanding revenue credits. On January 4, 2022, SPP filed an informational filing in all of the respective Attachment Z2 proceedings, stating that the Commission should not issue any further order(s) directing refunds until all pending action regarding the refund process has been resolved. On January 14, 2022, the indicated upgrade sponsors in the respective dockets filed a separate response to the January 4 letter and implored the Commission to resolve the complaints promptly before any refund plan is adopted and, consequently, refund payments are ordered. Agenda item E-20 may be an order on the complaint.
E-21 – Ameresco, Inc. (Docket No. EL22-74-000). On July 5, 2022, Ameresco, Inc. (Ameresco) filed a petition for declaratory order, requesting an exemption from certain requirements of the Public Utility Holding Company Act of 2005 (PUHCA) and attendant Commission regulations governing PUCHA compliance. Namely, Ameresco states that, in anticipation of developing, owning, and operating battery energy storage systems (BESS), the exemption as a "non-traditional utility" under PUHCA will not apply, the books and records of the Ameresco Companies are not relevant to any jurisdictional rates and the BESS Subsidiaries do not raise concerns with respect to any jurisdictional rates, there is no need to subject the Ameresco Companies to additional PUHCA obligations as a result of the BESS Subsidiaries. Agenda item E-21 may be an order on the petition.
E-22 – System Energy Resources, Inc. (Docket No. ER18-1182-002); Arkansas Public Service Commission, Mississippi Public Service Commission v. System Energy Resources, Inc. (Docket No. EL17-41-000); Louisiana Public Service Commission v. System Energy Resources, Inc., Entergy Services, Inc. (Docket No. EL18-142-000); Louisiana Public Service Commission v. System Energy Resources, Inc., Entergy Services, Inc. (Docket Nos. EL18-204-000, EL18-204-001); Louisiana Public Service Commission v. System Energy Resources, Inc., Entergy Services, Inc. (Docket No. EL18-152-000); System Energy Resources, Inc. (Docket No. ER18-1182-000); Louisiana Public Service Commission, Arkansas Public Service Commission, Council of the City of New Orleans, Louisiana, Mississippi Public Service Commission v. System Energy Resources, Inc., Entergy Services, LLC (Docket No. EL20-72-000); System Energy Resources, Inc. (Docket Nos. ER21-117-000, ER21-129-000, EL21-24-000, ER21-748-000, EL21-46-000); Louisiana Public Service Commission, Arkansas Public Service Commission, Council of the City of New Orleans, Louisiana v. System Energy Resources, Inc., Entergy Services, LLC, Entergy Operations, Inc., Entergy Corporation (Docket No. EL21-56-000); System Energy Resources, Inc. (Docket No. ER22-958-000). The above-captioned proceedings generally relate to respective complaints filed by various state public utility commissions (collectively, State PUCs) against electric utilities owned by Entergy Corporation and related affiliate companies including System Energy Resources, Inc. (collectively, Respondents) operating in their markets, alleging that their Commission-approved returns on equity are unjust and unreasonable pursuant to Sections 206, 306, and 309 of the FPA. In the respective complaints, State PUCs argue that the capital structure utilized by Respondents is rich with equity and its depreciation rates are excessive. The complaints, beginning on January 23, 2017 by the Arkansas and Mississippi PUCs, also generally seek refunds for the statutory refund period for the purported unlawful rates as well as revisions to the formula rate provisions contained in the governing agreement between Respondents, known as the Unit Power Sales Agreement (UPSA). Under the terms of the UPSA, System Energy Resources, Inc. (SERI) sells energy and capacity from a nuclear generating unit to four Entergy Operating Companies pursuant to a cost-based formula rate. Given that some of the above-captioned proceedings originate from complaints filed in ensuing years following the initial round of complaints submitted in 2017, State PUCs have recently clarified that new data and new issues must also necessitate the establishment of a refund-effective data, pursuant to Section 206(b) of the FPA. A consolidated proceeding, originally comprised of Docket Nos. EL17-41, ER17-2219, and EL17-93 and later expanded to include all of the above-captioned dockets, represents settlement negotiations and therefore may alter the course of the other proceedings if a settlement in reached, or, if a settlement is not reached and the issues go before hearing procedures as set by the Commission. On June 23, 2022, Respondents filed a Partial Settlement Agreement (Settlement) among itself and the Mississippi Public Service Commission in each of the above-captioned proceedings. Each of the dockets implicated by the Settlement involves issues related to the justness and reasonableness of the formula rate and SERI's recovery of costs under the UPSA. On August 11, 2022, Respondents and State PUCs filed a joint and unopposed motion for procedural relief for disposition of the Settlement and a request for expedited action. However, the other State PUCs did not opt to join the Mississippi PUC in the Settlement. Of the ongoing proceedings not resolved by the Settlement, only Docket No. EL20-72 is currently slated for active litigation and the discovery process. Therefore, the parties to the Settlement requested that the Commission enable the hearing to continue as scheduled without holding the hearing in abeyance while the Settlement is pending certification. On September 23, 2022, the Commission issued an order granting the August 11 joint procedural motion, indicating that forthcoming review of the Settlement, including the evaluation of any genuine issues of material fact and a determination of an uncontested or contested Settlement, will proceed to the extent necessary to preclude the ongoing litigation to be conducted without undue delay. Agenda item E-22 may be an order on the Partial Settlement Agreement and, accordingly, the active litigation proceedings.
Gas
G-1 – Revised Filing and Reporting Requirements for Interstate Natural Gas Company Rate Schedules and Tariffs (Docket No. RM21-18-000). On June 24, 2021, the American Gas Association (AGA), American Public Gas Association (APGA), American Forest & Paper Association (AF&PA), Industrial Energy Consumers of America (IECA), Process Gas Consumers Group (PGC), and Natural Gas Supply Association (NGSA) (collectively, the Petitioners) submitted a Petition for Rulemaking (Petition). The Petition specifically requested that the Commission conduct a rulemaking to revise its regulations at 18 C.F.R. Part 154, or in the alternative update its filing procedures, to require the submission of all statements and schedules in native format with all cells, links, and formulas intact when a natural gas company files for a change in rates or charges pursuant to Section 4 of the Natural Gas Act (NGA). On May 19, 2022, the Commission issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations and sought stakeholder comment. In the NOPR, the Commission proposed to establish a rule to require natural gas pipeline companies to submit all supporting statements, schedules and workpapers in native format with all links and formulas intact when filing an NGA Section 4 rate case. Petitioners generally filed supportive comments in response to the NOPR, but requested that the Final Rule make clear that the required submissions are to be publicly filed. Other commenters filed comments opposing such clarification, arguing that natural gas pipeline companies should not be prohibited from seeking privileged treatment under the Commission's regulations for any portion of filed materials that the natural gas pipeline company treats as confidential for commercial reasons. Still other commenters argued that the proposed rule is unjust and unreasonable or otherwise arbitrary and capricious because it would shift litigation costs and burdens to interstate natural gas pipelines. Agenda item G-1 may be a Final Rule.
G-2 – Eastern Gas Transmission and Storage, Inc. (Docket No. RP21-1187-008). On September 30, 2021, Eastern Gas Transmission and Storage, Inc. (EGTS) initiated a general rate case proceeding pursuant to Section 4 of the Natural Gas Act (NGA). In its rate case filing, EGTS did not propose any change to Section 45 of the General Terms and Conditions of its FERC Gas Tariff (GT&C), nor address in any way its existing, Commission-approved methodology for reservation charge crediting. Two parties – Ascent Resources – Utica, LLC (Ascent) and the National Grid Delivery Companies (National Grid) – filed protests asserting that certain aspects of EGTS's tariff language involving reservation charge crediting are inconsistent with Commission policy. Ascent asked the Commission to set for hearing its concern that GT&C Section 45 does not explicitly provide for eliminating system constraints from the calculation of the historical average if the shippers' usage was also constrained by a previous outage. National Grid urged the Commission to act under NGA Section 5 to require EGTS to revise its tariff to eliminate any need for shippers to nominate service to obtain reservation credits in instances when there is advance notice of a force majeure outage. In its answer to these protests, EGTS explained that GT&C Section 45 had been accepted by the Commission in a proceeding where the relevant issues were contested, and observed that protestors seeking to challenge them in the instant rate case must do so pursuant to NGA Section 5. On October 29, 2021, the Commission issued an order suspending EGTS's rate case filing and setting it for hearing (Suspension Order). In the Suspension Order, the Commission also directed EGTS to "show cause" as to why two specific aspects of GT&C Section 45 remain just and reasonable and not unduly discriminatory or preferential and, if EGTS were to conclude the tariff provisions do not, what tariff changes EGTS would propose. On November 29, 2021, EGTS responded to the show cause directive in the Suspension Order, asserting the Commission-approved tariff language in GT&C Section 45 remained just and reasonable and not unduly discriminatory or preferential. On July 20, 2022, the Commission issued an order (Show Cause Order) requiring EGTS to modify certain reservation charge crediting provisions set forth in GT&C Section 45. On August 19, 2022, EGTS requested rehearing (Rehearing Request) of the Show Cause Order, asserting that the Commission erred because, among other things, the Show Cause Order failed to comport with the requirements of NGA Section 5, was arbitrary and capricious and not supported by reasoned decision-making, failed to articulate a rational connection between the facts in the record and the Commission's ruling, failed to engage with arguments presented by EGTS, and failed to comport with Commission precedent or explain adequately the Commission's departure from such precedent. On August 19, 2022, the Commission issued a notice of denial of rehearing by operation of law with respect to the Rehearing Request while providing that the Commission would address the Rehearing Request in a future order. Agenda item G-2 may be an order on the Rehearing Request.
Hydro
H-1 – PacifiCorp, Klamath River Renewal Corporation, State of Oregon, and State of California (Docket Nos. P-2082-063, P-14803-001). On September 23, 2016, Klamath River Renewal Corporation (KRRC) and PacifiCorp (PacifiCorp) (collectively, Applicants) submitted a concurrent application for surrender of license for major project and removal of project works related to the Klamath Project located in California and Oregon, pursuant to Section 6 of the FPA. The applications pertain to outstanding relicensing matters resolved in the Amended Klamath Hydroelectric Settlement Agreement for Project No. 2082 signed by all parties on April 6, 2016. KRRC seeks to surrender the license for the purpose of removing four developments to achieve a free-flowing condition and volitional fish passage. On September 7, 2018, pursuant to Section 401 of the Clean Water Act (CWA), the State of Oregon submitted the final water quality certification and final environmental impact report for the Lower Klamath Project License Surrender. On April 7, 2020, pursuant to Section 401 of the CWA, the California State Water Resources Control Board submitted the final water quality certification and final environmental impact report for the Lower Klamath Project License Surrender. On February 25, 2022, the Commission issued the Draft Environmental Impact Statement (Draft EIS), finding that the proposed action for project approval would be conditioned on staff modifications and mitigation measures. Agenda item H-1 may be an order on the concurrent applications for license surrender.
H-2 – Norton Pump Storage, LLC (Docket No. P-15236-000). On October 1, 2021, Norton Pump Storage, LLC (Norton) submitted an application for a preliminary permit for the Norton Pumped Storage Project to be located in Ohio, pursuant to Part 1 of the FPA. Agenda item H-2 may be an order on the application for a preliminary permit.
Certificates
C-1 – Updating Regulations for Engineering and Design Materials for Liquefied Natural Gas Facilities Related to Potential Impacts Caused by Natural Hazards (Docket No. RM22-8-000). Agenda item C-1 may be a Notice of Proposed Rulemaking proposing updates to the Commission's regulations for engineering and design materials for liquefied natural gas facilities related to potential impacts caused by natural hazards.
C-2 – Commonwealth LNG, LLC (Docket Nos. CP19-502-000, CP19-502-001). On August 20, 2019, Commonwealth LNG, LLC (Commonwealth) filed an application (Application) requesting Commission authorization to site, construct, and operate natural gas liquefaction and liquefied natural gas (LNG) export terminal, including an integrated Natural Gas Act (NGA) Section 3 natural gas pipeline, in Cameron Parish Louisiana (collectively, the Project). The Project consists of two main components: (1) construction and operation of the LNG export terminal, which includes six LNG plant facilities to liquefy natural gas, six tanks to store the LNG, an LNG carrier loading/berthing facility, and other appurtenant facilities; and (2) construction and operation of 3.0 miles of 42-inch diameter pipeline and one new meter station to deliver natural gas to the LNG export terminal. The Commission accepted Commonwealth's request to begin the pre-filing process for the Project on August 15, 2017. The pre-filing process ended on August 20, 2019, when Commonwealth filed the Application. On March 16, 2020, the Commission suspended the environmental review schedule for the Project pending adequate responses from Commonwealth to Commission staff data requests and an official interpretation from the Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) pertaining to Commonwealth's proposed LNG storage tank design. On July 8, 2021, Commonwealth filed an amendment to its Application to modify the proposed LNG storage tank designs and capacities so as to not require an interpretation from PHMSA. The Commission issued a draft Environmental Impact Statement (EIS) for the Project (as amended) on March 31, 2022 and a final EIS for the Project (as amended) on September 9, 2022. Commission staff concluded that approval of the Project (as amended), with the mitigation measures recommended in the final EIS, would result in some adverse environmental impacts. While most of these impacts on the environment would be reduced to less than significant levels, Commission staff concluded in the final EIS that there would significant impacts on visual resources and that impacts on environmental justice communities would be disproportionately high and adverse. Commission staff further concluded in the final EIS that construction and operation of the Project (as amended) would increase the atmospheric concentration of greenhouse gases (GHGs), in combination with past and future emissions from all other sources, and would contribute to climate change, but expressly provided that the final EIS is not characterizing such GHG emissions as significant or insignificant because the Commission is conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward. Agenda item C-2 may be an order on the Application.
C-3 – Delfin LNG LLC (Docket No. CP15-490-003). On September 28, 2017, the Commission issued an order (Order) granting a certificate of public convenience and necessity under Section 7(c) of the Natural Gas Act (NGA) authorizing Delfin LNG LLC (Delfin LNG) to construct, operate and maintain certain onshore metering, compression, and piping facilities located in Cameron Parish, Louisiana. The authorized onshore facilities – which consist of just over 2 miles of pipeline, new compression, and appurtenant facilities within the fence line of an existing gas facility, and a new metering and regulation station – will exclusively transport and deliver natural gas to Delfin LNG's planned deepwater port to be located in the Gulf of Mexico approximately 37.4 to 40.8 nautical miles off the cost of Cameron Parish, Louisiana. Ordering Paragraph (C)(1) of the Order originally conditioned the certificate authorization on Delfin LNG completing the construction of the authorized onshore facilities and making them available for service within two years of the Order date. The Commission subsequently granted three, successive one-year extensions of this in-service timing condition, with the result that the facilities currently are required to be made available for service by September 28, 2022. On July 15, 2022, Delfin LNG filed a request for an additional one-year extension of this timing condition for good cause (Extension Request). As part of the "good cause" supporting its Extension Request, Delfin LNG informed the Commission that it had recently entered into a number of binding commercial agreements for liquefaction capacity at and offtake from the Delfin Deepwater Port. Agenda item C-3 may be an order on the Extension Request.
C-4 – Gulf South Pipeline Company, LLC (Docket No. CP22-161-000). On April 8, 2022, Gulf South Pipeline Company, LLC (Gulf South) filed an application (Application) requesting Commission authorization to construct and operate the Index 130 MS River Replacement Project (Project). The Project consists of: (1) replacing via horizontal directional drilling (HDD) its existing pipelines (MS River Crossing) under the Mississippi River and installing tie-in, auxiliary and appurtenant equipment (including new mainline valves) all to reconnect to the existing mainlines; (2) abandoning in-place and by removal the existing MS River Crossing; and (3) reconfiguring its tie-in for an existing Gulf South pipeline (Index 804) located on the east bank of the Mississippi River, which would require constructing approximately 730 feet of 6-inch-diameter pipeline to a new tie-in point on the Index 130 and 130L. The Commission issued an Environmental Assessment (EA) for the Project on October 5, 2022, in which Commission staff determined that if Gulf South constructs the Project in accordance with the Application and Commission staff's mitigation measures set forth in the EA, approval of the Project would not constitute a major federal action significantly affecting the quality of the environment. Agenda item C-4 may be an order on the Application.
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