On March 7, 2013, the Federal Energy Regulatory Commission (“FERC”) issued an order denying a request for authorization pursuant to Section 203 of the Federal Power Act for Wayzata Investment Partners, LLC (“Wayzata”) to acquire an indirect interest in New Harquahala Generating Company, LLC (“New Harquahala”), which owns a 1,054 megawatt (“MW”) gas-fired, combined-cycle facility located in the Arizona Public Service Company (“APS”) balancing authority area. FERC’s order is significant because it represents one of the few instances where FERC has denied Section 203 authorization. (more…)
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In a decision issued February 15, 2013 (New England Power Generators Assn., Inc. v. FERC, No. 11-1422 (D.C. Cir. Feb. 15, 2013)), the United States Court of Appeals for the District of Columbia held that in fulfilling its statutory obligation to ensure that rates charged for sales of electric generation capacity resulting from ISO New England’s capacity auction process are “just and reasonable,” the Federal Energy Regulatory Commission (FERC) may apply the Mobile-Sierra public interest standard. In accordance with the Mobile-Sierra doctrine, which originated from with the Supreme Court’s rulings in United Gas Pipe Line Co. v. Mobile Gas Serv. Corp. (Mobile), 350 U.S. 332 (1956), and Fed. Power Comm’n v. Sierra Pac. Power Co. (Sierra), 350 U.S. 348 (1956), a freely negotiated contract rate is presumed to be “just and reasonable” under the Federal Power Act and such rate may only be upset if that presumption is rebutted by evidence demonstrating that the contract rate is contrary to the public interest. Sierra, 350 U.S. at 355; see also Morgan Stanley Capital Grp., Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty., 554 U.S. 527, 533-35 (2008). As a basis for Commission action to modify rates, the Mobile-Sierra public interest standard, intended to promote stable energy supply arrangements, is more difficult to satisfy than the traditional just and reasonable standard. (more…)
On February 1, 2013, the Department of Justice (DOJ) filed comments in response to the Federal Energy Regulatory Commission’s (FERC) Notice of Inquiry in which FERC is considering amending its regulations to require jurisdictional sellers of natural gas to report on a quarterly basis detailed, transaction-specific information regarding every sale of natural gas that entails physical delivery the next day or the next month. FERC already requires sellers of electricity and transmission service to file such information on a quarterly basis. FERC has taken the position that existing natural gas reporting requirements may not be sufficient to ensure that market prices are transparent such that FERC can detect and prevent market manipulation. FERC also is considering whether and how publicly to disseminate any transactional data that is collected. (more…)
On January 22, 2013, the American Antitrust Institute (AAI), an independent non-profit organization with a mission to advance the role of competition in the economy and protect consumers, filed comments in the Federal Energy Regulatory Commission’s proceeding involving the proposed merger of the transmission businesses of ITC Holdings Corp. (ITC) and Entergy Corporation (Entergy). FERC is reviewing the transaction under Section 203 of the Federal Power Act.
If the $1.8 billion transaction is approved, ITC will become one of the largest electric transmission companies in the U.S., with over 30,000 miles of transmission lines spanning 11 states from the Great Lakes to the Gulf Coast. (more…)
Last month, the Federal Energy Regulatory Commission (FERC) issued an Order Approving Stipulation and Consent Agreement  (EnerNOC, Inc., 141 FERC ¶ 61,211 (2012)) to resolve an investigation by the Office of Enforcement (Enforcement) into whether EnerNOC, Inc. (EnerNOC) submitted inaccurate metering data to ISO New England (ISO-NE) without exercising due diligence and to address multiple late filings by EnerNOC’s wholly-owned subsidiary, Celerity Energy Partners San Diego LLC (Celerity). EnerNoc is a demand response provider and Celerity is an operator/lessor of Network Distribution Resource Facilities with a maximum aggregated generation capacity of 25 MW. Celerity has a market-based rate schedule on file with FERC. The settlement requires EnerNOC and Celerity to pay a civil penalty of $820,000, disgorge $656,806 (plus interest), develop a compliance program, and make semi-annual reports to Enforcement. The last section of this post identifies some “takeaways” specific to this order. (more…)
In a move somewhat unusual in the context of its normal exercise of authority with respect to hydroelectric licenses, on January 15, 2013 FERC publicly issued a “Staff Notice of Violations”, stating that its staff had preliminarily determined that Seneca Falls Power Corporation has violated several articles of the license for the Seneca Falls Project, No. P-2438, located in upstate New York. The litany of alleged violations is long, ranging from failure to procure and maintain adequate property rights for the project to failure to meet certain environmental conditions, such as maintenance of water elevations, installing fish passage facilities, monitoring wetlands and installing recreational facilities. The procedural posture of the case is that the FERC Office of Enforcement Staff has now completed its fact-finding, presented Seneca Falls with its preliminary findings, Seneca Falls has had the opportunity to respond and Staff has had an opportunity to analyze the response. Frequently after a Notice of Alleged Violation, we see that the subject of an investigation enters into a settlement with FERC Enforcement Staff. The Notice of Alleged Violation is the first time the Office of Enforcement’s investigation becomes public. (more…)