FERC issued guidance on October 17, 2019, that may significantly aid hydroelectric developers in planning and siting potential projects. FERC issued a list, jointly developed with the secretary of the US Army, secretary of the US Department of the Interior, and secretary of the US Department of Agriculture (collectively, the Secretaries), of 230 existing nonpowered federal dams that FERC and the Secretaries agree have the greatest potential for nonfederal hydropower development. FERC also issued guidance to assist applicants for licenses or preliminary permits for closed-loop pumped storage projects at abandoned mine sites. These actions fulfill FERC’s requirements under the America’s Water Infrastructure Act of 2018 (AWAI) and are intended to encourage development of renewable energy resources by developing hydroelectric power at sites where the addition of hydroelectric capabilities would not add significant additional environmental impacts.
The Commodity Futures Trading Commission (CFTC) recently released its Annual Report on the Whistleblower Program and Customer Education Initiatives for fiscal year (FY) 2019. The report, which details the operation of the whistleblower program and the CFTC’s initiatives to educate consumers about fraud or other violations of the Commodity Exchange Act (CEA), showed that during FY 2019, the CFTC awarded more than $15 million in five whistleblower awards. These whistleblowers had provided information that prompted the CFTC to open an investigation and/or provided substantial assistance to the CFTC during the course of the investigation. The report results serve as a reminder to energy companies to review and assess their compliance programs and policies to ensure that employees are encouraged to bring compliance concerns to management’s attention, and that such concerns are addressed in a timely manner.
FERC has provided specific, detailed guidance for the first time on the use of voting trusts to eliminate ownership affiliation.
Direct and indirect owners of 10% or greater voting interests in FERC-regulated “public utilities” are typically treated by FERC as “affiliates” and as “holding companies” of their public utilities. These owners become subject to FERC regulation with respect to some mergers, acquisitions, divestitures, and changes in control, and with respect to their and their affiliates’ FERC-conferred right to sell electricity at wholesale.
Join Morgan Lewis lawyers for these upcoming programs:
OSHA-Go Summit │ November 04, 2019 Seminar │ Washington, DC │Presenters: Jason S. Mills, Jonathan L. Snare, Dennis J. Morikawa, Carol A. Field, Kaiser H. Chowdhry, Alana F. Genderson, and Alexander S. Malson
Deal Structuring: Threshold Questions to Ask and Answer from Either Side of the Table │ November 05, 2019 Webinar │ Presenters: Gitte J. Blanchet and Eric Hwang
Morgan Lewis Shareholder Activism Defense Webinar: What You Need to Know to Avoid Being an Easy Target for an Activist Investor │ November 06, 2019 Webinar │ Presenters: Keith E. Gottfried and Sean M. Donahue
Deal Structuring: Threshold Questions to Ask and Answer from Either Side of the Table │ November 12, 2019 Webinar │ Presenters: Kristen E. Ferris and Andrew B. White
State and Federal Developments in Cybersecurity for Energy Companies │November 13, 2019 Webinar │ Presenters: Lewis M. Csedrik, Mark L. Krotoski, and J. Daniel Skees
The Commodity Futures Trading Commission (CFTC) filed and settled charges on October 24 against Upstream Energy Services LLC (Upstream Energy) for acting as an unregistered futures commission merchant. The Commission’s order raises several important points for energy companies. First, while energy companies may view the Federal Energy Regulatory Commission (FERC) as their primary federal regulatory agency, certain types of transactions involving energy resources may fall under the purview of another regulatory authority, such as the CFTC. Second, a company that accepts and places futures and options order on behalf of another party must register as a futures commission merchant. Third, voluntary and full cooperation with an enforcement action can reduce greatly the nature and severity of any penalty sought.
FERC recently issued a pair of orders approving the electric storage market participation proposals of PJM Interconnection, Inc. (PJM) and Southwest Power Pool, Inc. (SPP). PJM and SPP submitted those proposals to comply with the directives of Order No. 841, FERC’s final rule addressing the participation of electric storage resources in the capacity, energy, and ancillary service markets operated by independent system operators and regional transmission organizations. The October 17 orders represent the agency’s first two approvals of Order No. 841 compliance filings, which have been under review since late last year.
Morgan Lewis energy partner Ken Kulak takes a look at the role of regulation in defining the future of energy storage in Energy Policy Now, a podcast produced by the University of Pennsylvania Kleinman Center for Energy Policy. Ken also previews an upcoming FERC meeting during which the agency will consider plans submitted by regional transmission organizations to facilitate the participation of battery storage.
President Donald Trump signed a pair of executive orders on October 9 that may limit the impact of an agency’s use of informal guidance documents. The executive orders express concern that agency guidance, which includes policy statements, memoranda, and letters, has become a backdoor for regulators to change the laws and expand their scope and reach.
FERC Staff issued an October 4 report on Commission-led critical infrastructure protection (CIP) reliability audits completed during fiscal year 2019. The report provides lessons learned and identifies voluntary practices that FERC Staff observed during those audits that could improve the protection of electric infrastructure from cyberattacks.
In October 2018, Pennsylvania Governor Tom Wolf signed into law Act 120 of 2018 (Act 120), which grants the Pennsylvania Public Utility Commission (PaPUC) additional authority to support investor-owned water utilities’ efforts to protect Pennsylvania residents from lead entering their drinking water from customer-owned lead service lines. On October 3, the PaPUC, in its first exercise of this authority, approved Pennsylvania-American Water Company’s (PAWC’s) comprehensive plan for replacing customer-owned lead service lines in its service territory and established a working group to develop recommendations for the uniform implementation of Act 120 by all water companies in the commonwealth.