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By Michael J. Gergen and Miles B. Farmer

On May 23, 2014, the U.S. Court of Appeals for the D.C. Circuit Court issued a decision in Electric Power Supply Association v. FERC (“EPSA”) vacating and remanding FERC’s Order No. 745, which provides compensation for demand response resources that participate in the energy markets administered by Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”).  The decision holds that the Federal Energy Regulatory Commission (“FERC” or “Commission”) did not have jurisdiction under the Federal Power Act (“FPA”) to issue Order No. 745 because demand response is part of the retail market, which is exclusively within the states’ jurisdiction to regulate.  Furthermore, the court holds that even if FERC did have jurisdiction under the FPA to issue Order No. 745, the Order would still fail as arbitrary and capricious because FERC failed to properly consider concerns of the petitioner and other parties that Order No. 745 would result in unjust and unreasonable rates because it would overcompensate demand response resources.

By Michael J. Gergen and Jared W. Johnson

On November 15, 2012, the Federal Energy Regulatory Commission (“FERC”) issued a Policy Statement to provide new guidance for applicants seeking rate incentives for new transmission infrastructure projects.  FERC’s transmission rate incentives policy stems from a package of amendments to the Federal Power Act (“FPA”) enacted by Congress in 2005, specifically Section 219 of the FPA, which was added to provide incentive-based rate treatments for investments in transmission infrastructure that would…

By Energy Regulatory & Markets Practice

On July 21, 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000. As previously discussed in our Clean Energy Law Report and in a previous Client Alert, Order No. 1000 introduced several significant reforms FERC’s transmission and cost allocation processes. One key aspect of Order No. 1000 is that it requires each public utility transmission provider to develop procedures for considering transmission needs driven by public policy requirements established by…

By Janice Schneider, Buck Endemann, and Jennifer Roy

On October 22, 2012, the Ninth Circuit vacated certain federal authorizations for the Ruby Pipeline, a completed natural gas pipeline running from Wyoming to Oregon.  The Court concluded that the U.S. Fish and Wildlife Service’s (Service) Biological Opinion (BiOp) failed to comply with the federal Endangered Species Act (ESA).[1]  The Court also found that the Bureau of Land Management’s (BLM) Record of Decision (ROD) relying on the…

By Joshua T. Bledsoe, Tim B. Henderson, and Jared W. Johnson

Seeking to quell uncertainty surrounding the definition of resource shuffling ahead of the first cap-and-trade auction on November 14, 2012, the California Air Resources Board (“CARB”) passed a Resolution on October 18, 2012, requiring the Executive Officer to redefine resource shuffling and provide concrete examples.  CARB’s Resolution requires CARB Staff to issue proposed regulatory amendments by mid-2013 and release regulatory guidance consistent with the Resolution before the…

By Marc T. Campopiano and Tim B. Henderson

On August 9, 2012, the California Energy Commission (CEC) adopted a revised Sixth Edition of the Renewables Portfolio Standard Eligibility Guidebook (RPS Guidebook) to clarify changes to the RPS Guidebook Fifth Edition, which was recently adopted on May 9, 2012, as described in our prior blog discussion.  Highlights of the changes include the following:

  • The CEC clarified additional RPS requirements for generating facilities with a first point of interconnection to the

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By Joshua T. Bledsoe, Tim B. Henderson, and Jared W. Johnson

With the first auction in California’s cap and trade program fast-approaching on November 14, 2012, the California Air Resources Board (“ARB”) recently suspended a much-discussed aspect of the program that requires first deliverers of electricity to attest that they have not engaged in “resource shuffling.”  Resource shuffling involves a seller of energy into California modifying its portfolio of sales so that lower or no-emission electricity is…

By David E. Pettit

Since its decision in American Ref-Fuel Company in 2003, the Federal Energy Regulatory Commission (“FERC”) has taken the view that avoided cost power purchase agreements between a qualifying facility (“QF”) and a utility buyer under the Public Utility Regulatory Policies Act of 1978 (“PURPA”), often referred to as a “PURPA Put Contract,” do not also convey renewable energy certificates (“RECs”) to the utility buyer unless the contract expressly states otherwise.  RECs are state-created and state-issued instruments…

By Daniel Scripps

Affirming its basis for issuing Order 745, “Demand Response Compensation in Organized Wholesale Energy Markets,” the Federal Energy Regulatory Commission (FERC) on December 15, 2011 issued Order 745-A (PDF), denying petitions for rehearing of the original Order, and making only minor clarifications to the requirements of Order 745. As was the case in the original Order, FERC Commissioner Philip Moeller dissented from Order 745-A.

The FERC issued Order 745 (PDF) on…

By Michael Feeley and Aron Potash

A lawsuit which delayed and once threatened to dismantle California’s greenhouse gas (GHG) cap and trade scheme was largely resolved last week, removing one roadblock to California’s plan to be the first state to impose an economy-wide GHG trading program.  Under modified regulations adopted by the California Air Resources Board (CARB) on October 20, 2011, California will require certain emitters of GHGs to obtain allowances or offsets in amounts commensurate to their respective emissions…