It's a busy time for the Federal Energy Regulatory Commission (the "Commission" or "FERC"). In March 2024, FERC issued Order No. 2023-A upholding its major generator interconnection reform order, Order No. 2023. FERC followed that major ruling with two other big actions just six weeks later, issuing two landmark orders—Order No. 1920 (pertaining to long-term transmission planning) and Order No. 1977 (FERC's backstop transmission siting procedures)—on May 13, 2024, at a special open meeting. On the heels of these newsworthy issuances, this month's regular open meeting agenda suggests FERC is preparing to address a variety of cases involving generators, utilities, and grid operators grappling with the energy transition.
While perhaps not as headline-inspiring as the news from March or last week, this week's monthly open meeting looks poised to address several ongoing questions regarding the future of the Mystic Generating Station in New England; the implementation of FERC's Order No. 2222 reforms for distributed energy resource ("DER") aggregators; a challenge to Connecticut's renewable energy efforts that the challenger—itself a renewables developer—alleges violates the Public Utility Regulatory Policies Act of 1978 ("PURPA"); and the settlement of a dispute in California over wholesale distribution tariffs. Month by month, meeting by meeting, the energy transition work continues. For our part, the Foley Hoag Energy & Climate team continues to monitor and digest the agenda items and orders that most impact the electricity sector.
Generator Filings
1. Constellation Mystic Power, LLC, Docket No. ER18-1639-028
In January 2024, Constellation Mystic Power, LLC ("Constellation Mystic") filed a request for clarification, or in the alternative, rehearing, and a discrete rehearing request, of a December 2023 order acting on challenges to an informational filing made by Constellation pertaining to the level of compensation Constellation is owed for fuel security service it provides to ISO New England, Inc. ("ISO-NE"). We expect FERC to act on Constellation Mystic's request.
2. Allco Finance Limited, Docket No. EL24-95-000, et al.
In March 2024, Allco Finance Limited ("Allco"), the owner and operator of several qualifying facilities, submitted a petition to the Commission to commence an enforcement action against the Connecticut Department of Energy and Environmental Protection ("CT DEEP"), alleging improper implementation of PURPA. Allco's petition argues that CT DEEP has violated PURPA in multiple ways, including by implementing a volumetric cap on its 2024 Shared Clean Energy Facilities solicitation (which is similar to a community solar program), which Allco alleges violates PURPA's requirement for states to buy all of a qualifying facility's output, and also because the CT DEEP is holding offshore wind, nuclear, and zero carbon resource solicitations, the designs of which improperly preclude Allco's QFs from participating, and under which CT DEEP will improperly "compel wholesale sales of energy and capacity." Allco's petition demonstrates it has made similar arguments against CT DEEP's solicitations in the past. We expect FERC will act on the petition for enforcement.
3. Lackawanna Energy Center LLC v. PJM Interconnection, L.L.C., Docket No. EL24-64-000
Lackawanna Energy Center LLC ("Lackawanna"), the owner of a nearly 1,500 megawatt combined cycle generator in Pennsylvania, filed a complaint against PJM Interconnection, L.L.C ("PJM") seeking reimbursement of what it characterizes as lost opportunity costs that Lacakwanna incurred as a result of PJM's curtailment of its generator during a planned transmission line outage. We expect the Commission to act on this complaint.
RTO/ISO Compliance Filings
4. ISO New England Inc., Docket No. ER22-983-006
This agenda item relates to a request for rehearing filed by Advanced Energy United ("AEU") regarding the Commission's order on ISO-NE's third compliance filing under Order No. 2222, which requires transmission providers to remove barriers to DER aggregators participating in wholesale regional transmission operator/independent system operator markets. AEU's request challenges a number of the Commission's findings in the order as arbitrary and capricious, including the Commission's acceptance of ISO-NE's proposal to require that DER aggregations seeking to provide withdrawal service meet ISO-NE's existing requirements for Binary Storage Facilities and Continuous Storage Facilities. AEU contends in the request for rehearing that ISO-NE's compliance filing remains deficient and that the proposed rules will, if implemented, result in discrimination against DERs, especially those with demand reduction capabilities. We expect FERC will issue an order addressing AEU's rehearing arguments.
Wholesale Distribution Tariff Complaints
5. City and County of San Francisco v. Pacific Gas and Electric Company, Docket No. EL19-38-000, et al.
In 2019, the City and County of San Francisco ("San Francisco")—in this proceeding representing the interests of its residents and those of the Hetch Hetchy system, a city-owned utility that relies on the Pacific Gas and Electric Company ("PG&E") distribution system to serve its customers—filed a complaint alleging unfair and discriminatory treatment by PG&E through its Wholesale Distribution Tariff ("WDT"), under which San Francisco has purchased distribution service since 2015, particularly with respect to its actions relating to customers seeking service at secondary voltage levels. The parties filed a joint offer of settlement with the Commission in March 2024 that details proposed revisions to PG&E's WDT to enable San Francisco to obtain service at secondary voltage levels and committing the parties to work in good faith to resolve other disputed issues. We expect FERC will act on the proposed settlement.
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