Over the past year, there have been major Federal Energy Regulatory Commission developments as more cases moved from the agency to adjudication in the courts. McGuireWoods’ update to its innovative FERC Enforcement Reporter — led by lawyers Carrie Mobley and Corban Coffman — organizes energy enforcement cases from 2005 to present by topic and presents
Carrie represents energy and utility clients on a variety of matters before the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC). She has experience with representing companies seeking market-based rates, stated rates, and formula rates; filings to maintain market-based rates; and has represented clients filing complaints and comments with respect to Regional Transmission Organizations (RTOs).
Debtors in bankruptcy have broad authority to shed unfavorable contracts through the executory contract rejection process, subject to approval of the bankruptcy court. The Federal Energy Regulatory Commission (FERC), on the other hand, has exclusive jurisdiction over any request to modify or abrogate a “filed rate” under the Federal Power Act and the Natural Gas Act, which includes certain power purchase agreements and natural gas transportation contracts. For years, debtors and distressed counterparties faced uncertainty as to whether a bankruptcy court’s rejection order could fully relieve the debtor from performing under a filed-rate contract or if further relief from FERC (potentially applying the stringent “public interest” standard set out in the Mobile-Sierra line of cases) may be necessary to excuse future performance.
Continue Reading More Courts Reject FERC’s Jurisdictional Claims in Battle Over Rejection of Filed-Rate Contracts in Bankruptcy
On March 25, 2022, the Electric Reliability Council of Texas (ERCOT) issued a notice regarding a new interim large load interconnection process that is effective immediately. The interim process applies to load interconnection requests — usually large, flexible loads with accelerated timelines, such as crypto-miners — that have not been modeled and studied in a completed ERCOT planning assessment (e.g., regional transmission plan, full interconnection study or regional planning group review). The new interim large load interconnection process applies to:
- new loads not co-located with a resource with total demand within the next two years of 75 MW or greater;
- existing loads not co-located with a resource increasing total demand by 75 MW or greater within the next two years;
- new loads co-located with a resource with total demand within the next two years of 20 MW or greater; or
- existing loads co-located with a resource increasing total demand by 20 MW or greater within the next two years.
The Federal Energy Regulatory Commission (FERC) Office of Enforcement (OE) has historically focused on four “priorities,” as described in its annual Report on Enforcement. Those four priorities included (1) fraud and market manipulation; (2) serious violations of Reliability Standards; (3) anticompetitive conduct; and (4) conduct that threatens the transparency of regulated markets. In the 2021…