Below are summaries of the agenda items for the Federal Energy Regulatory Commission’s open meeting to be held on December 15, 2022, pursuant to the sunshine notice released on December 8, 2022.
In this issue…
- Electric Items
- Gas Items
- Hydro Items
- Certificate Items
E-1 – Applications for Permits to Site Interstate Electric Transmission Facilities (Docket No. RM22-7-000). Agenda item E-1 may initiate a new rulemaking proceeding pertaining to applications for permits to site interstate electric transmission facilities, potentially incorporating the backstop siting authority vested to the Commission as clarified and re-established in the Infrastructure Innovation and Jobs Act of 2021.
E-2 – 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). Agenda item E-2 was originally on the November 2022 agenda as item E-13 and struck prior to the open meeting. 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-2 may be an order on OCC's original complaint.
E-3 – Arizona Public Service Company (Docket Nos. ER22-2476-000, ER22-2476-001, ER22-2488-000). On July 25, 2022, Arizona Public Service Company (APS) submitted proposed revisions to its Open Access Transmission Tariff (OATT), pursuant to section 205 of the Federal Power Act (FPA). According to APS, the proposed revisions would facilitate the transition to the Flowgate Methodology for calculating Available Flowgate Capacity (AFC). APS currently uses the Rated Path Methodology in calculating AFC and is seeking to transition to utilizing the Flowgate Methodology in order to ensure accurate model data going forward. On September 28, 2022, the Commission issued a deficiency letter to APS, stating that the July 25 filing did not furnish sufficient supporting documentation or rationale for new proposed calculations and, therefore, requesting that APS submit the requisite information needed to evaluate the OATT revisions. On October 25, 2022, APS submitted a response to the deficiency letter. Agenda item E-3 may be an order on the proposed OATT revisions by APS.
E-4 – Duke Energy Carolinas, LLC (Docket No. ER22-2844-000). On September 13, 2022, Duke Energy Carolinas, LLC (DEC), on behalf of its public utility affiliate Duke Energy Florida (DEF), submitted proposed revisions to its OATT, pursuant to section 205 of the FPA. In the filing, DEC would change its formula rate template and protocols in order to properly account for the newly-formed, wholly-owned procurement subsidiary, DEF Procurement Company (ProCo). ProCo will act as a qualified reseller under Florida tax law and principally serve to purchase tangible personal property such as equipment, materials, and supplies on behalf of DEF and then convey the procured goods to DEF through sales or leases. The proposed revisions would ensure that certain tax savings created by the ProCo formation are appropriately passed through to the transmission customers of DEF. Agenda item E-4 may be an order on the proposed OATT revisions by DEC.
E-5 – Duke Energy Florida, LLC (Docket No. EL22-88-000). On September 13, 2022, DEF submitted a petition for declaratory order in tandem with the FPA section 205 filing described in agenda item E-4. DEF requests that the Commission reach certain conclusions in order to effectuate the creation of ProCo and for ProCo to realize tax savings necessary for the operation, due to the anticipated costs and burdens. Namely, DEF states that the Commission should find that ProCo will not be considered a public utility as defined under section 201 of the FPA; that DEF, by waiver of the equity method of accounting, use a consolidated accounting approach with ProCo; and that DEF and ProCo be considered a single entity for section 203 purposes in order to preclude the statutory filing requirements or be granted a preemptive blanket authorization for such transactions. Agenda item E-5 may be an order on the petition for declaratory order by DEF.
E-6 – Cheyenne Light, Fuel and Power Company (Docket Nos. ER22-109-000, ER22-109-001, ER22-110-000). On October 14, 2021, Cheyenne Light, Fuel and Power Company (Cheyenne Light) submitted several jurisdictional agreements, pursuant to section 205 of the FPA. In the filings, Cheyenne Light and its electric public utility operating company affiliates had undertaken a comprehensive review of their agreements and contracts to ensure that the agreements are in compliance with jurisdictional rates, charges, classifications, or services under the purview of the Commission. The effort to demonstrate compliance stems from the inadvertent filing of four transmission interconnection agreements and two generation dispatch and energy management agreements by Black Hills Power, Inc., under which Cheyenne Light is a wholly-owned subsidiary. Agenda item E-6 may be an order on the compliance of the respective agreements by Cheyenne Light.
E-7 – Midcontinent Independent System Operator, Inc. (Docket No. ER22-477-002). On November 24, 2021, Midcontinent Independent System Operator, Inc. (MISO) submitted proposed revisions to its OATT, pursuant to section 205 of the FPA. The revisions would allow MISO transmission owners to fund the capital costs, typically referred to as the “self-fund option,” of the network upgrades, transmission owner system protection facilities, and necessary upgrades necessitated by a request to interconnection a merchant high voltage direct current (MHVDC) transmission line. Specifically, the mechanism to select the self-fund option would be analogous to the existing method for transmission owners under the MISO pro forma generator interconnection agreement and generator interconnection procedures. On April 29, 2022, the Commission issued an order rejecting the proposed OATT revisions as brought forward by MISO, stating that it was not demonstrated to be just and reasonable, and that extending the self-fund option to necessary upgrades may yield uncompensated costs and risks that are not commensurate with the foreseeable benefits. Additionally, the Commission raised issue with the limited nature of the proposed revisions, finding that it would be unduly discriminatory or preferential to extend the self-fund option to only necessary upgrades and not to extend all funding options available to MHVDC customers for network upgrades. On May 27, 2022, MISO, MISO Transmission Owners, and ITC Midwest LLC filed respective requests for rehearing of the April 29 denial order. Agenda item E-7 may be an order on the requests for rehearing.
E-8 – Midcontinent Independent System Operator, Inc. (Docket No. ER22-995-001). On February 4, 2022, MISO submitted proposed revisions to its OATT, pursuant to section 205 of the FPA. The proposal seeks to revise the current cost allocation methodology for Multi-Value Projects (MVPs) under the Long Range Transmission Planning initiative under the MISO Transmission Expansion Plan. Namely, the revisions would create new MVP Portfolios, where the cost would be regionally allocated on a sub-regional basis. On May 18, 2022, the Commission issued an order accepting the OATT revisions. On June 17, 2022, American Municipal Power, Inc. and Coalition of MISO Transmission Customers submitted respective requests for rehearing of the May 18 approval order, asserting that the Commission acted arbitrarily and capriciously by granting the proposed revisions and that billions in future costs will be improperly allocated and, in some instances, paid for projects that will accrue benefits to other regional transmission organizations beyond MISO. Agenda item E-8 may be an order on the requests for rehearing.
E-9 – California Independent System Operator Corporation (Docket No. ER22-2730-000). On August 24, 2022, California Independent System Operator Corporation (CAISO) submitted a Petition for Approval of Disposition of Penalty Assessment Proceeds and non-Refundable Interconnection Financial Security. In the filing, CAISO detailed how it intends to distribute the proceeds of penalties collected for violations of its rules of conduct during calendar year 2021, as well as sought approval for distribution of non-refundable study deposits for projects interconnecting to the Southern California Edison Company distribution system. CAISO stated that the proposed distributions generally comport with prior methodologies filed with, and approved by, the Commission in prior years. Agenda item E-9 may be an order on the proposed refund distributions by CAISO.
E-10 – Lincoln Land Wind, LLC (Docket Nos. ER21-2695-001, ER21-2695-002). On August 16, 2021, Lincoln Land Wind, LLC (Lincoln Land) submitted a proposed initial tariff for Reactive Supply and Voltage Control from Generation or Other Sources (rate schedule) for a proposed onshore wind generation facility located in Illinois under the MISO footprint. On October 29, 2021, the Commission issued an order accepting the proposed initial rate schedule, with an effective date of November 1, 2021 or the first day of the month immediately following the date of commercial operation for the facility. On December 10, 2021, Lincoln Land submitted a compliance filing stating that, following the approval of the rate schedule, the facility achieved commercial operation in MISO on November 17, 2021 and therefore requested a revised effective date of December 1, 2021. On September 16, 2022, Lincoln Land submitted an uncontested offer of settlement between itself and MISO, whereby Lincoln Land would reduce its annual revenue requirement for reactive service from the original $3,877,093.20 to $1,120,000. Agenda item E-10 may be an order on the uncontested settlement brought forward by Lincoln Land.
E-11 – Tenaska Power Services Co. (Docket No. ER21-2459-000). On July 19, 2021, Tenaska Power Services Co. (TPS) submitted a filing justifying spot sales exceeding the Western Electric Coordinating Council (WECC) soft cap of $1,000/MWh, pursuant to a July 6, 2021 notice issued by the Commission. TPS asserted that the sale prices in June of 2021 were justified due to anomalous market conditions at the time precipitated by an early summer heatwave and, consequently, any contemplation of refunds would be unwarranted. On August 6, 2021, Southern California Edison Company and Pacific Gas and Electric Company filed a joint protest of the justification filing, alleging that TPS did not sufficiently meet its cost justification obligations and the corresponding data used by TPS—a 90-day average liquidity window—are flawed and do not represent a reasonable comparison to the spot sales under review of this proceeding. Agenda item E-11 may be an order on the cost justification filing as brought forward by TPS.
E-12 – EDF Trading North America, LLC (Docket No. ER21-2380-000). On July 8, 2021, EDF Trading North America, LLC (EDF) submitted a filing justifying spot sales exceeding the Western Electric Coordinating Council (WECC) soft cap of $1,000/MWh, pursuant to a July 6, 2021 notice issued by the Commission. EDF asserted that the sale prices in June of 2021 were justified due to anomalous market conditions at the time precipitated by an early summer heatwave and, consequently, any contemplation of refunds would be unwarranted. On August 6, 2021, Southern California Edison Company and Pacific Gas and Electric Company filed a joint protest of the justification filing, alleging that EDF did not sufficiently meet its cost justification obligations. Agenda item E-12 may be an order on the cost justification filing as brought forward by EDF.
E-13 – City and County of San Francisco v. Pacific Gas and Electric Company (Docket No. EL19-38-002). On January 28, 2019, pursuant to sections 206, 306, and 309 of the FPA, the City and County of San Francisco (San Francisco) filed a complaint against Pacific Gas and Electric Company (PG&E) alleging that PG&E unreasonably denied service to San Francisco under its Wholesale Distribution Tariff (WDT) and that PG&E is implementing the WDT in an unjust, unreasonable, and unduly discriminatory manner. San Francisco's complaint asks that Commission direct PG&E to comply with the WDT by offering San Francisco secondary and primary-plus wholesale distribution service, direct PG&E to refund San Francisco consistent with filed rates, and take any other actions that the Commission deems necessary to address PG&E's WDT violations. On April 16, 2020, the Commission issued an order denying the complaint. On May 18, 2020, San Francisco filed a request for rehearing of the Commission’s April 16 order. On August 18, 2020, San Francisco filed a petition for review of the April 16 order at the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) under Case No. 20-1313. On September 17, 2020, the Commission filed an order addressing the arguments raised on rehearing. Notably, the Commission modified certain discussion items furnished in the order but ultimately did not reverse the result and upheld the denial, remaining unpersuaded that PG&E had treated San Francisco in an unduly discriminatory manner or that it contravened the filed rate doctrine. On January 25, 2022, the D.C. Circuit issued an order granting the petition for review by San Francisco, vacating the April 16 order, and remanding to the Commission for further proceedings consistent with the findings of the D.C. Circuit. Agenda item E-13 may be an order responsive to the remand in favor of San Francisco by the D.C. Circuit.
E-14 – Arizona Public Service Company, Black Hills Colorado Electric, LLC, Black Hills Power, Inc., Cheyenne Light, Fuel and Power Company, El Paso Electric Company, Public Service Company of Colorado, Public Service Company of New Mexico, Tucson Electric Power Company, and UNS Electric, Inc. (Docket No. ER22-1105-000). On February 16, 2022, the above-captioned companies (collectively, the WestConnect Public Utilities) submitted a petition for approval of a settlement agreement resolving matters on appeal before the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit). The WestConnect Public Utilities stated that the settlement agreement would resolve the appeal pending before the Fifth Circuit relating to the implementation of Order No. 1000 in the WestConnect planning region. According to the petition, the settlement purports to accommodate both the public and non-public utility members of WestConnect in a cohesive planning region where the non-public utility members of WestConnect are allowed to secure the approval of their governing bodies or governing boards before becoming contractually bound to regional cost allocation for a specific regional transmission project. The settlement would also provide for jurisdictional ratepayer protection features that would resolve cost causation and free-ridership concerns raised by the public utility members of WestConnect and identified in the decision of the Fifth Circuit vacating and remanding certain aspects of the Commission’s orders on prior WestConnect Order No. 1000 compliance filings. Agenda item E-14 may be an order regarding the settlement agreement as brought forward by the WestConnect Public Utilities.
E-15 – FirstEnergy Service Company (Docket No. ER22-2494-000). On July 25, 2022, FirstEnergy Service Company (Service Company), on behalf of its affiliates Monongahela Power Company (Mon Power) and Allegheny Energy Supply Company, LLC (AE Supply) filed a request for wavier of the Commission’s affiliate restrictions 18 C.F.R. § 35.39 to permit Service Company to offer capacity rights held by AE Supply into the capacity auction administered by PJM. Service Company requested a ruling by November 28, 2022, in order to permit the requested waiver be implemented by the end of the year. On October 14, 2022, Service Company filed a supplement to its July 25 waiver request additional information on how it will satisfy proposed mitigating measures to prevent opportunities for affiliate abuse. Agenda item E-15 may be an order on the Service Company waiver request.
E-16 – Fortistar North Tonawanda LLC (Docket No. EC22-78-000). On June 6, 2022, Fortistar North Tonawanda LLC (FNT) submitted an application pursuant to Section 203(a)(1) of the FPA requesting authorization for a proposed transaction through which the immediate parent entity of FNT will sell 100% of the membership interests in FNT and its gas-fired generating facility located in the State of New York to Digihost International Inc. (Digihost). On September 27, 2022, the Commission issued a deficiency letter requesting additional information. On October 6, 2022, FNT submitted a response to the Commission’s September 27, 2022 deficiency letter. Agenda item E-16 may be an order on the FNT FPA Section 203 application.
E-17 – Complaint of George R. Cotter Seeking Modifications to Critical Infrastructure Security Standards (Docket No. EL21-105-000). On September 1, 2021, individual George R. Cotter submitted for the Commission’s consideration a complaint and petition pertaining to certain CIP reliability standards and their implementation by Regional Entities. The compliant purports to require the Commission to issue an order under Section 215 of the FPA directing NERC to undertake additional development or modification of reliability standards. Agenda item E-17 may be an order relating to the complaint and petition of George R. Cotter.
E-18 – Tenaska Clear Creek Wind, LLC v. Southwest Power Pool, Inc., Midcontinent Independent System Operator, Inc., Associated Electric Cooperative, Inc., and Tennessee Valley Authority (Docket No. EL22-59-000). On May 25, 2022, pursuant to Sections 206, 211A, 306, 307, 308, and 309 of the FPA, Tenaska Clear Creek Wind, LLC (Tenaska Clear Creek) filed a complaint and petition against Southwest Power Pool, Inc. (SPP), the Midcontinent Independent System Operator, Inc. (MISO), Associated Electric Cooperative, Inc. (AECI), and the Tennessee Valley Authority (TVA) alleging these respondents engaged in discriminatory curtailment of Tenaska Clear Creek’s 242-MW wind facility, the Clear Creek Project. Tenaska Clear Creek requested the Commission grant the compliant and issue an order directing the respondents immediately cease the alleged curtailment of the Clear Creek Project. Tenaska Clear Creek further requested the Commission issue an order on an expedited basis directing SPP and AECI file copies for review in the docket certain “Operating Guides” alleged to have been adopted by the respondents and purport to result in the Clear Creek Project being curtailed on a discriminatory basis. Agenda item E-18 may be an order relating to the Tenaska Clear Creek complaint and petition.
E-19 – Pacific Gas and Electric Company (Docket No. EL23-2-000). On October 3, 2022, Pacific Gas and Electric Company (PG&E), pursuant to Rule 207(a)(2) of the Commission’s Rules and Regulations, submitted a petition for declaratory order requesting approval on an expedited basis to establish a revenue sharing mechanism for secondary products and services under its wholesale distribution tariff. Notice of the PG&E petition for declaratory order was published on October 7, 2022. Agenda item E-19 may be an order regarding the PG&E petition for declaratory order.
E-20 – Pacific Gas and Electric Company (Docket Nos. ER21-2592-000, ER21-2592-001). On August 2, 2021, PG&E submitted for filing an unexecuted Large Generator Interconnection Agreement (LGIA) between CXA La Paloma, LLC (CXA), and California Independent System Operator Corporation (CAISO) to be effective as of August 3, 2021. On December 21, 2021, the Commission issued an order accepting for filing and suspending the unexecuted CXA LGIA for a nominal period, holding a paper hearing in abeyance, and establishing settlement procedures. On June 14, 2022, the Chief Administrative Law Judge issued an order terminating settlement judge procedures and returning the matter to the Commission for a paper hearing. Agenda item E-20 may be an order relating to the unexecuted CXA LGIA and the Commission’s December 21, 2022 order holding a paper hearing in abeyance.
E-21 – Public Citizen, Inc. v. Midcontinent Independent System Operator, Inc.; The People of the State of Illinois, By Illinois Attorney General Lisa Madigan v. Midcontinent Independent System Operator, Inc.; Southwestern Electric Cooperative, Inc. v. Midcontinent Independent System Operator, Inc., Dynegy, Inc., and Sellers of Capacity into Zone 4 of the 2015-2015 MISO Planning Resource Auction (Docket Nos. EL15-70-003, EL15-71-003, EL15-72-003). The above-captioned proceedings concern three complaints under Section 206 of the FPA filed with the Commission in May 2015 in response to the results of the Midcontinent Independent System Operator, Inc.’s (MISO) 2015/16 Planning Resource Auction (PRA) for Local Resource Zone 4 (the Zone 4 PRA). As relevant, in 2021, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) issued its opinion and order in Pub. Citizen, Inc. v. FERC, 7 F.4th 1177 (D.C. Cir. 2021) (Pub. Citizen, Inc. v. FERC) on the petitions for review of two Commission orders on the complaints and on rehearing that concluded the 2015/2016 Zone 4 PRA results were just and reasonable. The DC Circuit ruled that the Commission failed to adequately explain its conclusion that the 2015/16 Zone 4 PRA results were just and reasonable and therefore remanded the two orders back to the Commission for further analysis and explanation. On February 7, 2022, the Illinois Attorney General and Public Citizen jointly filed motions in Docket Nos. EL15-70 and EL15-71 requesting that the Commission find the 2015/2016 Zone 4 PRA was not just and reasonable due to certain MISO tariff provisions that the Commission previously determined were unjust and unreasonable, that Dynegy Marketing and Trade, LLC (Dynegy) exploited the unjust and unreasonable rules formerly contained in the MISO tariff to manipulate Zone 4 prices, and that Dynegy be ordered to disgorge alleged unlawful profits of approximately $428.6 million. Subsequently, on June 16, 2022, the Commission issued an order on remand that established paper hearing procedures to address the DC Circuit’s order in Pub. Citizen, Inc. v. FERC. Agenda item E-21 may be an order relating to the 2015/2016 Zone 4 PRA complaints and subsequent Commission remand proceedings.
E-22 – Liberty Utilities Co., Kentucky Power Company, and AEP Kentucky Transmission Company, Inc. (Docket No. EC22-26-000). On December 22, 2022, Liberty Utilities Co. (Liberty), Kentucky Power Company (Kentucky Power), and AEP Kentucky Transmission, Inc. (AEP Kentucky) submitted a joint application pursuant to Section 203(a)(1) and (a)(2) of the FPA requesting authorization for the disposition of jurisdictional facilities resulting from the acquisition of all the common outstanding shares of Kentucky Power and AEP Kentucky by Liberty from American Electric Power Company, Inc. (AEP) for approximately $2.846 billion including acquired existing debt. On February 22, 2022, protests were filed respectively by the Public Service Commission of Kentucky and the Joint Consumer Group. On April 25, 2022, the Commission issued a deficiency letter requesting additional information supplementing the December 22 application. On May 5, 2022, Liberty, AEP Kentucky, and Kentucky Power submitted supplemental information in response to the April 25 deficiency letter. On June 16, 2022, the Commission issued an order tolling for an additional 180 days action by the Commission under Section 203. Agenda item E-22 may be an order regarding the December 22, 2022 FPA 203 application of Liberty, AEP Kentucky, and Kentucky Power.
E-23 – New York Independent System Operator, Inc. (Docket No. ER21-502-004). On October 5, 2022, the Independent Power Producers of New York, Inc. (IPPNY) submitted a Motion for an Expedited Order on Remand under Docket No. ER21-502. The IPPNY requested that the Commission issue an order expeditiously on remand consistent with the judgment of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit or the Court) issued on August 9, 2022 in Independent Power Producers of New York, Inc. v. FERC. Specifically, IPPNY requested that the Commission direct the New York Independent System Operator, Inc. (NYISO) to file amendments to its Market Administration and Control Area Services Tariff (Services Tariff) replacing the 20-year amortization period parameter encompassed in the model to set the Demand Curves in the Installed Capacity (ICAP) Market for the 2021/2022 Capability Year and as a continuing input/parameter of the model as the annual updates are conducted to determine the Demand Curves for the 2022/2023, 2023/2024, and 2024/2025 Capability Years with the 17-year amortization period, the modeling parameter that the NYISO demonstrated was just and reasonable in its November 30, 2020 FPA Section 205 filing initiating this proceeding. On October 11, 2022, NYISO submitted Comments in Support of IPPNY’s Request for an Expedited Order on Remand under ER21-502. Without addressing the merits of the ultimate outcome advocated by IPPNY, the NYISO supported IPPNY’s request for expedited action by the Commission. NYISO stated that expeditious resolution of this proceeding will promote greater market certainty regarding the ICAP Demand Curves applicable for the remainder of the current reset period. On October 20, 2022, the New York State Public Service Commission (NYSPSC), Multiple Intervenors (MI), the City of New York (the City) and Consumer Power Advocates (CPA) (collectively, the Consumer Stakeholders), submitted an Answer in response to the IPPNY’s October 5th Motion. In their Answer, the Consumer Stakeholders took no position on the timeframe by which FERC must act upon remand, but they objected to IPPNY’s mischaracterization of the D.C. Circuit’s judgment, issued on August 9, 2022 in Independent Power Producers of New York, Inc. v. FERC. The Consumers Stakeholders argued that contrary to IPPNY’s claim that the D.C. Circuit’s judgment should result in the Commission directing the NYISO to file tariff provisions incorporating a 17-year amortization period, the Court’s determination merely found that the Commission failed to provide a reasonable explanation for its decision rejecting the 17-year period and adopting a 20-year period. Indeed, the Court stated that it did not “express [a] view on whether the more detailed explanations FERC offered in its briefing could support the same result if adopted by the agency and supported by the record.” Accordingly, the Consumer Stakeholders request that the Commission deny IPPNY’s Motion and establish any procedural steps that may be necessary to review the amortization issue on remand and determine whether a sufficient record exists to support the Commission’s prior finding that a 20-year amortization period is just and reasonable. Agenda item E-23 may be an order on IPPNY’s original motion.
E-24 – Louisiana Public Service Commission v. and System Energy Resources, Inc., and Entergy Services, Inc. (Docket No. EL18-152-001). On May 18, 2018, Louisiana Public Service Commission (LPSC) filed a FPA section 206 complaint alleging that Entergy Services, LLC, acting as agent for System Energy Resources, Inc. (collectively, SERI) accounting and ratemaking treatment of the costs associated with renewing a lease pursuant to a 1988 sale-leaseback transaction were unjust and unreasonable. The LPSC’s complaint contended that the Unit Power Sales Agreement (UPSA) formula rate does not disclose all calculations used to determine certain rate input. On September 20, 2018, the Commission set the LPSC complaint for hearing and settlement procedures, and on April 6, 2020 Presiding Judge Glazer issued an Initial Decision providing much of the relief sought by the complaint. Judge Glazer’s Initial Decision remains pending before the Commission. On March 18, 2021, LPSC submitted an Answer to the Motion of SERI for Continued Protection of Document Produced as SER 00001679-SER 00001749 (Investment Proposal). The LPSC opposes SERI’s motion and requested the Commission: (1) make determination regarding whether the identity and date of documents produced as confidential still qualify as protected materials under the Protective Order, (2) dispute the confidential nature of the Investment Proposal and its date that SERI seeks to continue to protect, (3) designate Reviewing Representatives and waiver of certain provisions in the Protective Order, and (4) clarify assertions and misstatements in Entergy's motion. Agenda item E-24 may be an order regarding the original decision from Judge Glazer or the request surrounding the confidential protection of the Investment Proposal.
E-25 – System Energy Resources, Inc. (Docket No. EL23-11-000). On March 27, 2018, Entergy Services, LLC, acting as agent for System Energy Resources, Inc. (collectively, SERI) filed pursuant to section 205 of the FPA to revise the Unit Power Sales Agreement (UPSA) to return to customers SERI's unprotected excess ADIT resulting from the Tax Cuts and Jobs Act of 2017. The Mississippi Public Service Commission (Mississippi Commission) timely filed a notice of intervention and protest, and on May 31, 2018, the Commission accepted SERI’s proposed revisions subject to refund and the outcome of hearing and settlement judge procedures. On July 9, 2020, Presiding Judge Satten issued an Initial Decision principally holding that SERI erroneously excluded $147.3 million of unprotected excess ADIT from the calculation of SERI’s UPSA billings and that amount should be returned to customers through SERI’s proposed amortization methodology. Judge Satten’s Initial Decision remains pending before the Commission on exceptions. On June 23, 2022, SERI filed a Partial Settlement Agreement and Offer of Settlement in thirteen open FERC dockets that would propose to resolve the outstanding issues between SERI and the Mississippi Commission, including Docket No. ER18-1182-001. The Settlement Agreement is considered partial because the Mississippi Commission is the only settling party among the three other active parties in those thirteen dockets as the Arizona Public Service Commission (APSC), the Louisiana Public Service Commission (LPSC) and the Council of the City of New Orleans (CNO) have not agreed to settle. On August 1, 2022, Commission Trial Staff submitted Comments not Opposing the Partial Settlement Agreement. Additionally, on August 1, 2022, APSC, the LPSC, CNO, the Alliance for Affordable Energy, the Deep South Center for Environmental Justice and Sierra Club (Louisiana Stakeholders) each filed initial comments to the Settlement Agreement. On August 10, 2022, the LPSC filed Supplemental and Reply Comments Expressing Non-Opposition to Settlement Agreement between Mississippi Public Service Commission and Entergy Companies. Except for the Louisiana Stakeholders, none of the commenters expressed opposition to the Commission approving the Settlement Agreement. On August 16, 2022, the Mississippi Commission filed Reply Comments in Support of Acceptance of the Partial Settlement Agreement filed on June 23, 2022. On August 16, 2022, the APSC filed Reply Comments to the Partial Settlement Agreement and Public Settlement, supporting the Settlement Agreement, with respect to the Mississippi issues. However, the APSC would be declining the “opt-in” provision of the Settlement Agreement. The APSC found the Settlement Agreement to be lacking on many levels as it argued it was crafted only to benefit the Mississippi Commission and Mississippi ratepayers, and provides insufficient remuneration to Arkansas ratepayers. On December 5, 2022, the Mississippi Commission filed a Notice of Withdrawal from the Pleadings under the thirteen open ongoing dockets with SERI, including ER18-1182-001. The record in the second docket in agenda item E-25, Docket No. EL23-11-000, has not yet been populated or initiated in eLibrary. This proceeding may reflect a new settlement proceeding. Agenda item E-25 may be an order on the Settlement Agreement and setting new settlement proceedings for the non-Mississippi stakeholders in the ongoing dockets with SERI.
E-26 – UBS Asset Management Inc. (Docket No. EL22-53-000). On April 14, 2022, UBS Asset Management (Americas) (UBS AM) petitioned the Commission for a Declaratory Order requesting that the Commission make four determinations related to investments in public utilities made through Energy Storage Investment Fund I, LP (ESIF) and Energy Storage (Feeder) Investment Fund I, LP, (ESIF Feeder), which are Limited Partnerships (LP Investors) that invest in and receive “LP Interests” in return (the Transactions). UBS AM also requested the Commission apply its determination to yet to-be-formed private equity investment funds that will be formed in the future (collectively, with ESIF and ESIF Feeder, the UBS Funds). Based on the commitment that there will be no material changes in the rights and obligations of the LP Investors, ESIF, ESIF Feeder, or future UBS Funds from what is set forth in its Declaratory Order Petition, UBS AM requested that the Commission issue a Declaratory Order determining that (1) current and future LP Interests are passive investments that do not allow the LP Investors to manage, direct, or control the activities of the UBS Funds, or future Commission jurisdictional public utilities; (2) transactions resulting in the purchase and sale of LP Interests do not require case specific approval pursuant to Section 203 of the Federal Power Act and, to the extent relevant, qualify for the benefit of blanket authorization with respect to non-voting securities under 18 C.F.R. § 33.1(c)(2)(i); (3) UBS Funds, or their affiliates, do not need to identify the LP Investors in any future FPA Section 203 application, FPA Section 2053 market-based rate applications, notice of change in status or updated market power analysis; and (4) the Commission does not have jurisdiction under FPA Section 2014 over UBS Funds and the LP Investors, and the LP Investors are not holding companies under the Public Utility Holding Company Act of 2005. On May 16, 2022, Public Citizen, Inc. (Public Citizen) submitted Comments requesting that the Commission compel disclosure of the Advisory Agreement between UBS AM and the General Partner because it may have “details essential for determining whether UBS is affiliated with the private equity funds, per 18 CFR § 35.36(a)(9)(iii), and whether UBS is subject to jurisdiction under Section 201 of the Federal Power Act.” Additionally, Public Citizen requested that the Commission require any LP Investors in the UBS Funds to declare whether the LP Investors are affiliated with any entities with market-based rate authority that are not part of the UBS Fund. Lastly, Public Citizen requested that the Commission “compel the disclosure of the identities of any natural persons that have management responsibilities, including those of the General Partner, Energy Storage I GP LLC and its trust, and its Board of Trustees.” On June 8, 2022, UBS AM submitted a Motion for Leave to Answer and Answer to the May 16, 2022, comments of Public Citizen. UBS AM requested that the Commission reject Public Citizens Comments because its various demands are not relevant to the determinations requested by UBS AM in the Declaratory Order Petition. Agenda item E-26 may be an order on the initial Declaratory Order Petition request by UBS AM.
G-1 – Oil Pipeline Affiliate Committed Service (Docket No. PL23-1-000). The record in Docket No. PL23-1-000 has not yet been populated. Agenda item G-1 may reflect a new general policy case initiated by the Commission.
G-2 – Magellan Midstream Partners, L.P. (Docket No. OR17-2-001). On November 14, 2016, Magellan Midstream Partners, L.P. (Magellan) filed a petition for declaratory order (Petition) asking the Commission to issue an order declaring that Magellan’s proposal to establish a marketing affiliate to buy, sell, and ship crude oil (Marketing Affiliate) is compliant with the Interstate Commerce Act (ICA). Magellan argued that a Marketing Affiliate would benefit Magellan, as well as shippers, by increasing usage of underutilized pipeline capacity, providing flexibility for producers and marketers, and increasing access to pipelines. Magellan stated that a number of its crude oil pipeline competitors have similar marketing affiliates that buy and sell crude oil for the purpose of shipping on their affiliates’ pipelines. On November 22, 2017, the Commission issued an order (Order) denying Magellan’s Petition, finding that the transactions proposed by Magellan, when viewed together, would violate various provisions of the ICA, primarily the ICA’s prohibition on rebates. Magellan and three other pipeline companies subsequently requested clarification and/or rehearing of the Order (collectively, Rehearing Requests), all of whom asserted that the Order was inconsistent with longstanding Commission precedent, exceeded the specific facts presented in the Petition, and could therefore have industry-wide impacts on marketing affiliate transactions. Several additional entities subsequently filed motions to intervene and comments (collectively, Comments) on the Order in light of the perceived uncertainty surrounding the Order’s implications for the industry in light of the pleadings filed by Magellan and the three other pipeline companies. These commenters generally asked the Commission to institute a generic proceeding in the absence of clarifying that the findings set forth in the Order do not apply industry-wide but are instead limited to the specific facts set forth in the Petition. On January 22, 2018, the Commission issued a notice of denial of rehearing by operation of law with respect to the Rehearing Requests and Comments while providing that the Commission would address the Rehearing Requests and Comments in a future order. Agenda item G-2 may be an order on the rehearing requests and comments.
G-3 – Enerplus Resources (USA) Corporation v. Targa Badlands LLC, et al. (Docket Nos. OR20-13-001, OR23-2-000). On September 28, 2020, Enerplus Resources (USA) Corporation filed a complaint (Complaint) alleging that Targa Badlands LLC, Targa Assets LLC, and/or Targa Fort Berthold LLC (collectively, Targa) is engaged in undue discrimination under sections 2 and 3(1) of the Interstate Commerce Act (ICA) by providing crude oil gathering services to various producers at rates lower than those charged to Enerplus for the same service. On March 26, 2021, the Commission issued an order (Order) dismissing the Complaint, finding that Targa’s obligation under the ICA extends only to its pipeline transportation service, that Enerplus has neither requested nor received such service, and therefore Enerplus lacked any claim against Targa under the ICA. On April 20, 2021, Enerplus requested rehearing (Rehearing Request) of the Order, asserting that the Order (1) would effectively undermine the fundamental purposes of the ICA by allowing Targa and other midstream companies to use the very monopolistic power the ICA is intended to regulate to avoid the ICA’s common carrier obligations and any Commission regulation thereof, (2) is contrary to the plain meaning of the terms of section 2 of the ICA prohibiting a common carrier from directly or indirectly charging any person or persons a greater or less compensation for gathering service than it charges any other persons for a like and contemporaneous service, and (3) places form over substance to avoid determining whether producers like Enerplus are being charged discriminatory rates. On May 20, 2021, 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. On October 4, 2022, Enerplus filed a motion for expedited Commission action on the Rehearing Request, noting its Rehearing Request has been pending for more than one year and arguing that the discriminatory prices charged by Targa to other producers for gathering services are causing Enerplus competitive harm and making it more difficult to plan future business decisions. Agenda item G-3 may be an order on the rehearing request.
G-4 – Rough Rider Operating LLC (Docket No. OR23-1-000). On November 14, 2022, Rough Rider Operating LLC (Rough Rider) filed a petition (Petition) seeking a temporary waiver (ICA Waiver) of the tariff filing and reporting requirements of sections 6 and 20 of the Interstate Commerce Act (ICA) and Parts 341 and 357 of the Commission’s regulations. Specifically, the Petition requested such waiver for a crude oil pipeline system (Pipeline) that Rough Rider is developing in North Dakota, asserting that such Pipeline will qualify for such ICA Waiver in accordance with Commission precedent. Agenda item G-4 may be an order on the petition.
G-5 – Targa NGL Pipeline Company LLC (Docket No. OR18-30-001). On July 27, 2018, Targa NGL Pipeline Company LLC (Targa) filed a petition for declaratory order (PDO) asking the Commission to approve the specific rate structure, terms of service, and prorationing methodology for a new pipeline system (Pipeline) that Targa is developing to transport volumes of mixed natural gas liquids (NGLs) from certain natural gas processing facilities in Coal and Hughes Counties, Oklahoma to a Targa affiliate’s storage facilities at the NGL storage, fractionation, and marketing hub of Mont Belvieu, Texas. On March 11, 2019, the Commission issued an order (Order) granting the PDO, subject to conditions. In the Order, the Commission specifically found that the open season was conducted in an open and non-discriminatory manner, and there appears to have been no discrimination against similarly situated shippers who could have chosen to sign transportation service agreements (TSAs) with Targa for transportation on the Pipeline. Still, the Commission refused to allow the rates agreed to in the TSA signed during the open season to serve as initial rates on the Pipeline and declined Targa’s request to treat its initial committed rates as settlement rates. The Commission instead required Targa to file either a cost of service supporting the initial rates or an affidavit that the rate is agreed to by a non-affiliated shipper that intends to use the service. On April 10, 2019, Targa requested rehearing (Rehearing Request) of the Order, asserting the Order impermissibly departed from the Commission’s longstanding policy of granting requests to permit committed rates agreed to in connection with a well-publicized open season to serve as initial rates as if such rates were settlement rates. On May 9, 2019, 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-5 may be an order on the rehearing request.
G-6 – Panhandle Eastern Pipe Line Company, LP, et al. (Docket Nos. RP19-78-000, RP19-78-001, RP19-1523-000, RP19-257-005). In July of 2018, the Commission initiated a review of all interstate natural gas companies with cost-based stated rates that filed a 2017 FERC Form No. 2 or 2-A. The Commission required such entities to submit a FERC Form No. 501-G informational filing (501-G Filing). On October 11, 2018, Panhandle Eastern Pipe Line Company LP (Panhandle) filed its required 501-G filing in Docket No. RP19-78-000, electing not to modify its rates following the passage of the Tax Cuts and Jobs Act of 2017 (TCJA). Panhandle included an addendum (Addendum) to its 501-G Filing explaining no rate changes were necessary because it is a separate tax paying entity and calculated a total estimated return on equity (ROE) of 14.2 percent. Based on Panhandle’s 501-G Filing, the Commission found evidence that Panhandle’s existing rates may be unjust and unreasonable and initiated a Natural Gas Act (NGA) section 5 rate review into Panhandle’s existing rates on January 16, 2019 (Panhandle Section 5 Proceeding). Shortly thereafter, on February 19, 2019, the Commission instituted an NGA section 5 investigation into Panhandle’s affiliate Southwest Gas Storage Company (Southwest Gas) in Docket No. RP19-257-000 (Southwest Gas Section 5 Proceeding). In July 2019, the Chief Administrative Law Judge (Chief ALJ) consolidated an outstanding negotiated rate contract issue in the Southwest Gas Section 5 Proceeding with the Panhandle Section 5 Proceeding. On April 19, 2019, Panhandle filed revised tariff records pursuant to NGA section 4 in Docket No RP19-1523-000, seeking to, among other things, increase its rates effective October 1, 2019 (Panhandle Section 4 Proceeding). In September 2019, the Commission accepted and suspended, subject to refund, Panhandle’s NGA section 4 filing and established hearing procedures. The Commission further denied Panhandle’s motion to terminate the Panhandle Section 5 Proceeding. In October 2019 the Chief ALJ consolidated the Panhandle Section 5 Proceeding, the Southwest Gas Section 5 Proceeding, and the Panhandle Section 4 Proceeding (collectively, the Consolidated Proceedings). On March 26, 2021, following a fully litigated hearing with respect to the Consolidated Proceedings, the presiding administrative law judge (Presiding ALJ) issued an initial decision (Initial Decision) finding that Panhandle was substantially over-recovering its cost of service and ordered, subject to Commission review, that Panhandle’s cost of service and associated rates be lowered. Specifically, the Initial Decision made the following general findings regarding Panhandle’s proposals: (1) Panhandle’s treatment of its accumulated deferred income tax (ADIT) and excess ADIT balances should be granted; (2) Panhandle’s proposed ROE of 14.67 percent should be denied, and should instead be calculated at 11.43 percent; (3) Panhandle’s proposed depreciation expense and rates should be denied, in part due to Panhandle’s estimation of remaining economic life; (4) Panhandle’s proposal to include a negative salvage rate should be denied; (5) Panhandle’s proposal to include a terminal decommission rate should be granted, but not the specific rate Panhandle proposed; and (6) Panhandle’s proposed storage expense and proposed increase in system storage should be denied, based in large part on methodological flaws with Panhandle’s analysis of its system storage needs. The Initial Decision also made various determinations as to Panhandle’s affiliate transactions regarding storage contracts and its operational balancing agreements. The participants in the Consolidated Proceedings subsequently filed briefs on and opposing exceptions to the Initial Decision. Agenda item G-6 may be an order on the Initial Decision.
H-1 – Pacific Gas and Electric Company and Tule Hydro LLC (Docket No. P-1333-066). On February 1, 2022, Pacific Gas and Electric Company (PG&E or Transferor) requested Commission approval to transfer the license for the Tule River Hydroelectric Project No. 1333 from PG&E to Tule Hydro LLC (Tule Hydro or Transferee). On May 16, 2022, the Commission filed Notice of Application for Transfer of License and Soliciting Comments, Motions to Intervene, and Protests. On September 7, 2022, the Commission issued a letter requesting additional information regarding the membership of the Transferee, its technical resources and capabilities to operate the project, and the estimated costs associated with restoring, operating, and maintaining the project. Agenda item H-1 may be an order on the status of the supplemental information request or the license transfer application.
C-1 – Spire STL Pipeline LLC (Docket No. CP17-40-000). On August 3, 2018, the Commission issued an order (Certificate Order) granting Spire STL Pipeline LLC (Spire) a certificate of public convenience and necessity under section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission’s regulations to construct and operate a 65-mile-long interstate natural gas pipeline system, extending from an interconnection with Rockies Express Pipeline LLC (REX) in Scott County, Illinois, to interconnections with both Spire Missouri Inc. (Spire Missouri) and Enable Mississippi River Transmission, LLC (MRT) in St. Louis County, Missouri (the Pipeline). The majority of the Pipeline was placed into service on November 18, 2019. The Environmental Defense Fund (EDF), Missouri Public Service Commission, MRT, and Juli Steck each filed timely requests for rehearing of the Certificate Order, and, on November 21, 2019, the Commission issued an order on rehearing addressing the arguments raised and dismissing, rejecting, or denying the requests for rehearing. EDF and Juli Steck each petitioned for review with the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). On June 22, 2021, the D.C. Circuit issued a decision granting EDF’s petition for review and vacating the Commission’s orders authorizing the Pipeline and remanding to the Commission for further proceedings. On August 5, 2021, Spire filed petitions for panel rehearing and rehearing en banc with the D.C. Circuit, asserting that the court should not have vacated the Commission’s orders because it would cause service disruptions during the winter heating season. On September 7, 2021, the D.C. Circuit denied Spire’s petitions for rehearing. On September 14, 2021, and December 3, 2021, the Commission issued temporary certificates of public convenience and necessity to Spire to continue to operate the Pipeline while the Commission evaluated Spire’s Application again in light of the D.C. Circuit’s decision. On November 12, 2021, Spire filed an application (Application) requesting the Commission reissue certificates of public convenience and necessity authorizing construction and operation of the Pipeline. The Commission issued a draft Environmental Impact Statement (EIS) for the Application on June 17, 2022 and a final EIS for the Application on October 7, 2022. Commission staff concluded in the final EIS that impacts from the continued operation of the Pipeline would be less than significant, with the exception of climate change impacts resulting from greenhouse gas emissions that are not characterized as significant or insignificant. Agenda item C-1 may be an order on the Application.
C-2 – Eastern Shore Natural Gas Company (Docket No. CP22-40-000). On January 18, 2022, Eastern Shore Natural Gas Company (Eastern Shore) filed a prior notice request (Prior Notice Request) under its blanket certificate authority granted in Docket No. CP96-128-000 of its intent to install an additional compressor unit at Eastern Shore’s existing Bridgeville Compressor Station site in Sussex, County Delaware and appurtenant facilities, adding 1,875 horsepower of new compression (such project, the Southern Expansion Project). The additional compressor unit to be installed as part of the Southern Expansion Project would be constructed within the existing compressor station building using extra work space adjacent to the compressor station and yard. The Southern Expansion Project is intended to provide additional firm natural gas transportation service to an existing shipper on Eastern Shore’s pipeline system. On March 25, 2022, Commission staff issued an Environmental Assessment report for the Southern Expansion Project, concluding that approval of the Southern Expansion Project would not constitute a major federal action significantly affecting the quality of the human environment. Agenda item C-2 may be an order on the Prior Notice Request.
C-3 – Gas Transmission Northwest LLC (Docket No. CP21-29-001). On January 13, 2021, Gas Transmission Northwest LLC (GTN) filed a prior notice request (Prior Notice Request) pursuant to section 7 of the Natural Gas Act (NGA) and sections 157.205 and 157.208(b) of the Commission’s Part 157 blanket certificate regulations, to construct and operate a new compressor station in Morrow County, Oregon (Coyote Springs Compressor Station Project). On March 22, 2021, Columbia Riverkeeper filed a motion to intervene and protest to the Prior Notice Request. On March 30, 2021, GTN filed an answer and motion to dismiss the protest and requested a waiver of the 30-day reconciliation period provided for by the blanket certificate regulations in prior notice proceedings. On April 7, 2021, Columbia Riverkeeper filed an answer opposing waiver of the reconciliation period. The request for waiver was not granted, and the protest was not withdrawn during the reconciliation period. Accordingly, the Commission reviewed the Prior Notice Request as a case-specific certificate application under section 7 of the NGA. On July 28, 2022, the Commission issued an order (Certificate Order) denying Columbia Riverkeeper’s protest and issued a certificate authorizing GTN to construct and operate the Coyote Springs Compressor Station Project. On August 26, 2022, Columbia Riverkeeper requested rehearing (Rehearing Request) of the Certificate Order. On August 31, 2022, GTN submitted its implementation plan for the Coyote Springs Compressor Station Project and requested the Commission issue a notice to proceed with construction of the Coyote Springs Compressor Station Project. On September 26, 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 C-3 may be an order on the Rehearing Request.
C-4 – Transcontinental Gas Pipe Line Company, LLC (Docket No. CP21-94-000). On March 26, 2021, Transcontinental Gas Pipe Line Company, LLC (Transco) filed an application (Application) requesting Commission authorization to construct and operate the Regional Energy Access Expansion (Project). The Project would involve the construction and operation of 22.2 miles of 30-inch diameter lateral pipeline and 13.8 miles of 42-inch diameter loop pipeline in Pennsylvania; one new compressor station in New Jersey; modifications to five existing compressor stations in Pennsylvania and New Jersey; modifications to existing pipeline tie-ins, valves, regulators, and meter and regulating stations in Pennsylvania, New Jersey, and Maryland; the addition of ancillary facilities such as regulation controls, valves, cathodic protection, communication facilities, and pig launchers and receivers in Pennsylvania; and abandonment and replacement of certain existing compression facilities. The Project would allow Transco to provide an incremental 829,400 dekatherms per day of year-round firm transportation capacity from the Marcellus Shale production area in northeastern Pennsylvania to delivery points in New Jersey, Pennsylvania, and Maryland. The Commission issued a draft Environmental Impact Statement (EIS) for the Project on March 2, 2022 and a final EIS for the Project on July 29, 2022. Commission staff concluded in the final EIS that construction and operation of the Project, with the mitigation measures recommended in the final EIS, would result in some adverse environmental impacts but that, with the exception of climate change impacts, such impacts would not be significant. The final EIS did not characterize climate change impacts as significant or insignificant. Agenda item C-4 may be an order on the Application.
C-5 – Equitrans, L.P. (Docket Nos. CP20-312-001, RP21-882-001, CP 22-497-000). On April 30, 2020, Equitrans, L.P. (Equitrans) filed an abbreviated application (Abandonment Application) requesting Commission authorization to abandon approximately 191 miles of certificated gathering lines, nine certificated compressor station units, approximately 736 miles of non-certificated gathering lines, nine non-certificated compressor station units, and any appurtenant facilities (collectively, the Gathering System). Equitrans proposed in its Abandonment Application a two-step process whereby the requested abandonment authorization would be effective as of the date of the Commission order and would remain in effect for one year. The abandonment authorization would be conditioned on Equitrans submitting an implementation plan within that one year period that reflects how it will implement the abandonment of the assets (by sale, in place, or both), and the Commission’s Office of Energy Projects approving such plan. Equitrans would then attempt to abandon the Gathering System by sale and, if that was not successful, Equitrans would abandon the facilities in place. While the Abandonment Application was pending before the Commission, Equitrans reached agreements to abandon all Gathering System assets by sale. On June 17, 2022, the Commission an order (Abandonment Order) granting, in part, the Abandonment Application. However, the Abandonment Order found that it is possible that Equitrans’ Taylor County Field facilities could be subject to the Commission’s jurisdiction if all or any portion of those facilities function primarily as jurisdictional transmission facilities with respect to the 125 or more farm tap customers served directly from those facilities, but that the Commission did not have sufficient information before it to make that determination. The Commission therefore directed Equitrans to take one of three actions: (1) show cause why it should not be required to file an application seeking a certificate under section 7 of the Natural Gas Act (NGA) to operate the Taylor County Field facilities; (2) file an application for such a certificate; or (3) file information demonstrating that its proposal to abandon the Taylor Country Field facilities to Big Dog Midstream, LLC (Big Dog) is permitted by the present or future public convenience or necessity as required by NGA section 7(b). On July 18, 2022, Equitrans requested rehearing and clarification (Rehearing Request) of the Abandonment Order with respect to the application of the National Environmental Policy Act (NEPA) to Equitrans’ abandonment proposal, the show cause requirement for the Taylor County Field facilities, and the description of Equitrans’ ownership and affiliate relationship. On August 12, 2022, Big Dog filed an abbreviated application (Big Dog Application) requesting a limited jurisdiction certificate to provide transportation service on the Taylor County Field facilities that Big Dog will acquire from Equitrans. Big Dog explained in the Big Dog Application that the primary function of the Taylor County Field facilities will remain non-jurisdictional gathering, but that a limited jurisdiction certificate is required to continue the periodical backflow of natural gas from its transmission system to the Taylor County Field to meet the supply needs of Peoples Natural Gas Company and its customers. Furthermore, Big Dog explained that the limited transportation proposed in the Big Dog Application would not affect the design flow capacity of the Taylor County Field. On August 26, 2022, Commission staff issued an Environmental Assessment report concluding that environmental review of the Big Dog Application confirmed that it qualifies for a categorical exclusion under the Commission’s regulations implementing NEPA. On August 15, 2022, Equitrans filed a response (Show Cause Response) to the show cause requirement in the Abandonment Order, asserting that Equitrans cannot be required to file an application pursuant to an application seeking a certificate under NGA section 7 to operate the Taylor County Field facilities because the primary function of these facilities is non-jurisdictional gathering, and incorporated its arguments from its Rehearing Request in support of that position. Equitrans also argued in the Show Cause Response that the Big Dog Application further supports a determination that an abandonment of those same facilities to Big Dog (or any other potential purchaser possessing a limited certificate) is permitted by the present or future public convenience or necessity as required by NGA section 7(b). On August 18, 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 C-5 may be an order on the Big Dog Application, the Show Cause Response, and the Rehearing Request.
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