Fifth Circuit Overturns Lower Court's Use of Primary Jurisdiction Doctrine to Order Indefinite Stay While Awaiting FERC PURPA Decision; Orders 180-Day Stay Instead
On January 4, 2016, the United States Court of Appeals for the Fifth Circuit (the "Fifth Circuit") vacated a federal district court's indefinite stay of proceedings before it involving disputed Public Utility Regulatory Policies Act ("PURPA") issues while awaiting administrative action from FERC, and instead ordered a definite period of 180 days for FERC to act.
The district court had supported its indefinite stay by applying the doctrine of primary jurisdiction—a doctrine that permits a federal court with non-exclusive jurisdiction over a proceeding to, under appropriate circumstances, defer to another forum (such as an administrative agency like FERC) that also has non-exclusive jurisdiction over the issue, based on the court's determination that the benefits of obtaining aid from the other forum outweigh the need for expeditious litigation. While the Fifth Circuit found the doctrine applicable in the circumstances presented, it determined that the indefinite nature of the stay would unfairly harm the interests of one of the litigants. [Read more →]
FERC Accepts ISO-NE's Inclusion of Distributed Solar Resources in Calculating Reduced 2019-2020 Capacity Requirement
On January 8, 2016, the Commission approved proposed values submitted by ISO New England, Inc. ("ISO-NE") to develop a demand curve for the tenth Forward Capacity Auction ("FCA 10"), which is scheduled to be held in February, 2016. One of the values—the Installed Capacity Requirement ("ICR")—for the first time accounted for behind-the-meter solar resources, as a reduction in total load forecast. In its order accepting the proposed demand curve values for FCA 10, the Commission upheld ISO-NE's inclusion of these distributed solar resources in the ICR. [Read more →]
FERC Rejects Local Balancing Authority Proposed Cost Recovery Under MISO Tariff
On January 12, 2016, the Federal Energy Regulatory Commission ("FERC") issued an order rejecting without prejudice Louisiana Generating LLC's ("Louisiana Generating") request to recover costs associated with performing its obligations as a local balancing authority ("LBA") under the Midcontinent Independent System Operator, Inc's ("MISO") Open Access Transmission, Energy and Operating Reserve Markets Tariff ("Tariff") Schedule 24 and Schedule 24-A. Going forward, Louisiana Generating may resubmit its request for cost recovery in accordance with FERC's explicit expectations set forth in the order. [Read more →]
FERC Applies Seven-Factor Test to Exclude Certain SoCal Edison Transmission Elements from NERC Regulation
On December 31, 2015, FERC issued an order applying the seven-factor test to exclude certain transmission facilities owned by Southern California Edison Company ("SoCal Edison") from North American Electric Reliability Corporation ("NERC") regulation. SoCal Edison filed an application under Section 215 of the Federal Power Act ("FPA") and FERC Order No. 773, seeking a determination from FERC that certain of its 115 kV facilities were "facilities used in the local distribution of electric energy," and therefore, were exempt from NERC regulation under the plain language contained in Section 215 of the FPA. In its application, SoCal Edison presented seven transmission and substation facility configurations for FERC consideration. Using the seven-factor test set forth in Order No. 888, FERC determined that five of the seven facilities were "facilities used in local distribution" and were exempt. [Read more →]
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