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On February 20, 2020, the Commodity Futures Trading Commission (CFTC)  unanimously approved a proposed rule that would revise certain reporting requirements for financially-settled offtake contracts that qualify as “swaps” under the Commodity Exchange Act (as amended by the Dodd-Frank Act), such as proxy revenue swaps, fixed-volume price swaps and certain virtual PPAs.  Many counterparties to…

On December 23, 2019, the Minnesota Court of Appeals reversed and remanded a decision by the Minnesota Public Utilities Commission (the “Commission”) approving affiliated-interest agreements permitting Minnesota Power and its Wisconsin affiliate to move forward with the construction of a large natural gas facility – the Nemadji Trail Energy Center (“NTEC”) – in Superior, Wisconsin (the “Order”). The result of the Order may complicate the already complex issue of state permitting, specifically a state’s ability to regulate activity occurring in another state.

Honor the Earth and certain Clean Energy Organizations sought additional review of the Commission’s order based on concern about the lack of a Commission-ordered environmental assessment worksheet (“EAW”) pursuant to the Minnesota Environmental Policy Act (“MEPA”). During the initial Commission proceeding, Minnesota Power, and indeed the Commission, determined that an EAW was not necessary because (1) MEPA does not apply to the affiliated-interest agreements because NTEC does not meet the definition of “project” under MEPA, and (2) the Commission does not have authority to order an EAW for a project located in Wisconsin. In its Order, the Court of Appeals addresses each point, in turn.

The Order holds that MEPA applies to affiliated-interest agreements. Contrary to the Commission’s interpretation, the Court of Appeals concludes that the NTEC affiliated-interest agreements are “projects” as defined by MEPA. The Court’s definition of “project” is “a definite, site-specific, action that contemplates on-the-ground environmental changes.” The Order notes that the construction and operation of NTEC are definite and site-specific actions that will affect the immediate location as well as the surrounding environment (including Minnesota – 2.5 miles away – and Lake Superior). The Court went on to note that because the construction of NTEC is an environmentally significant event that may not occur without Commission approval of the affiliated-interest agreements, Commission approval of such agreements constitutes indirect governmental action manipulating the environment and triggering MEPA. Therefore, the Court concluded that MEPA “applies to the governmental action of approving the NTEC affiliated-interest agreements.”Continue Reading Minnesota Court of Appeals Determines MEPA Review Required for Wisconsin Natural Gas Generating Facility

The Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued two orders on July 18, 2019 revising the requirements applicable to market-based rate (“MBR”) sellers.  The first, Order No. 861, lightens the regulatory requirements for MBR sellers in certain RTO/ISO-administered markets by eliminating the requirement to submit indicative screens in the horizontal market power analysis in initial MBR applications, triennial updates, and change-in-status notices.  The second, Order No. 860, may also lighten regulation by reducing the amount of ownership information MBR sellers must report to the Commission, but also imposes new reporting requirements, including submissions to a relational database that will be maintained by FERC Staff to link MBR sellers and their affiliates.

Order No. 861

Order No. 861 eliminates the requirement that MBR sellers in RTO/ISO-administered energy, ancillary services, and capacity markets subject to FERC-approved RTO/ISO market monitoring and mitigation submit indicative horizontal market power screens.  Instead, a seller may include a statement in its filing that it is relying on FERC-approved market monitoring and mitigation to mitigate any potential market power.  With the exception of MBR sellers making capacity sales in CAISO and SPP, discussed below, this will lighten regulation on MBR sellers in ISOs/RTOs by eliminating the requirement to submit indicative screens in their initial MBR applications, triennial updates, and change-in-status notices.

The exemption will not apply to MBR sellers making capacity sales in CAISO or SPP, because CAISO and SPP do not have an RTO/ISO-administered capacity market.  In addition, the Commission determined that MBR capacity sellers in CAISO and SPP can no longer rely on the rebuttable presumption that FERC-approved RTO/ISO market monitoring and mitigation is sufficient to address horizontal market power concerns for their capacity sales in CAISO and SPP.  Therefore, SPP and CAISO capacity sellers must still submit indicative screens and, now, any seller that fails the indicative screens must submit a delivered price test or other evidence that it lacks market power in the capacity markets.  CAISO and SPP sellers will be able to rely on Order No. 861’s exemption for their sales of energy and ancillary services.

The order is effective September 24, 2019 and FERC Staff announced that the new rules will be applicable to triennial reviews for the Northeast region due in December 2019 and June 2020.Continue Reading FERC Issues Orders Revising Requirements for Market-Based Rate Sellers

State legislatures across the country have been active this spring debating ambitious new targets and renewable energy market reforms, following the successful passage of multiple renewable energy mandates in certain states.  Last year California passed SB 100, which sets the target of 100% carbon-free electricity by 2045.  At least other three states—Hawaii, New Mexico, and Washington—have also adopted 100% renewable energy targets and, according to Inside Climate News, several other states debated 100% renewable energy legislation this spring including Minnesota, Illinois, Nevada, Maine, and Massachusetts.

Like other states adopting renewable energy mandates, the Washington legislature specifically concluded “that Washington must address the impacts of climate change by leading the transition to a clean energy economy … by transforming its energy supply.”  To support this goal, the Act mandates 100% renewable electricity generation by 2045.  To help achieve this, section six of the Washington law mandates that utilities must file a
“four-year clean energy implementation plan” by 2022 and every four years after that.  Each action plan must include “specific actions to be taken by investor-owned utility[ies] over the next four years … that demonstrate progress toward meeting the standards … of [the] act.”  By requiring the utilities to provide relatively frequent updates, the Washington legislature appears to indicate a desire for strong oversight of the transition to 100% renewable electricity generation.

In other states, such as Minnesota, 100% carbon-free targets were the subject of substantial attention and debate but were not ultimately adopted.  The Minnesota legislature ultimately passed a jobs and energy omnibus bill in a special session this year with more limited ambition—including provisions for energy storage pilot programs, which will allow public utilities to pursue and recover costs for such programs.  The pilot program petitions, at a minimum, must provide: (1) the storage technology utilized; (2) the energy storage capacity and the duration of the output at the capacity; (3) the proposed location; (4) the cost of purchase and installation; (5) the interplay between the storage facility and existing distributed generation resources; and (6) the overall goals of the project. 
Continue Reading Renewable Energy Trending in State Legislative Sessions

At its March 14, 2019 voting meeting, the California Public Utilities Commission (“CPUC”) voted out an Order Instituting Rulemaking (“OIR”) to Implement Senate Bill 237 (“SB 237”) Regarding Direct Access and to Consider Changes to Existing Direct Access Procedures.  The Rulemaking will address the expansion of Direct Access, as required by SB 237.

Direct Access permits customers of a California investor-owned utility (“IOU”) (e.g., Pacific Gas and Electric, San Diego Gas and Electric, Southern California Edison) to obtain their electricity from an electric service provider registered with the CPUC.  The IOU continues to provide transmission and distribution service to the customer.  Direct access was instituted in 1998 as part of California’s efforts to deregulate the electric sector.

As part of California’s efforts to recover from the energy crisis in 2000-2001, the California legislature passed Assembly Bill 1X (“AB1X”), which authorized the Department of Water Resources (“DWR”) to begin procuring electricity on behalf of IOU customers, and required the CPUC to allow DWR to recover the costs of such procurement from IOU ratepayers.  AB1X also authorized the CPUC to suspend Direct Access, motivated by a concern that IOU ratepayers would flee to Direct Access to avoid paying the cost of DWR procurement.Continue Reading California Public Utilities Commission Opens Rulemaking to Consider Expansion of Direct Access

The 2019-2020 California Legislative Session has reached its first deadline.  February 22, 2019 marked the deadline by which bills could be introduced for the first half of the Legislative Session. Lawmakers will begin Spring Recess April 12 and reconvene April 22.  The last day for bills to be passed out of the house of origin is May 31, 2019.

Below is a list of some of the key bills Stoel Rives’ Energy Team will be monitoring throughout the Legislative Session.  We note that some bills do not contain language beyond the “intent of the Legislature.”  However, we will continue to monitor these bills in case of substantive amendments.  These bills are set forth separately below under the heading “Legislative Intent.”

The majority of the bills introduced this Legislative Session relate in some way to California’s efforts to reduce greenhouse gas emissions and move to cleaner sources of generation, including legislation governing electric vehicles, energy storage, and renewable energy.  A number of bills introduced in February also attempt to address the impacts of wildfires, or to reduce wildfire risk.


ASSEMBLY BILLS

AB 40 (Ting, D)   Zero-emission vehicles: comprehensive strategy.

Status: Introduced December 3, 2018; referred to Committees on Transportation and Natural Resources January 24, 2019.

AB 40 would require by no later than January 1, 2021, the State Air Resources Board to develop a comprehensive strategy to ensure that the sales of new motor vehicles and new light-duty trucks in the state have transitioned fully to zero-emission vehicles, as defined, by 2040, as specified.
Continue Reading Key Energy Related Bills Introduced in the 2019-2020 Legislative Session

In a recent order from the Minnesota Public Utilities Commission (the “Commission”), Minnesota took a big step to update the state’s interconnection process and standard interconnection agreement for distributed energy resources or “DERs.” This ongoing process relates to Minn. Stat. § 216B.1611 which directs the Commission to establish generic standards for utilities’ tariffs that govern…

On June 21, 2018, the United States District Court, District of Minnesota issued an order and memorandum rejecting a challenge to the constitutionality of Minn. Stat. § 216B.246 and granting defendants’ motions to dismiss. The statute, which was enacted after FERC Order 1000 (and eliminating the federal right of first refusal or “ROFR”), provides incumbent…

On May 9, 2018 the Minnesota Public Utilities Commission issued an order approving Xcel Energy’s residential electric vehicle (“EV”) pilot program (the “Pilot”), designed as an alternative to Xcel’s existing EV tariff, concluding that the Pilot will “benefit all ratepayers by aiding Xcel in its efforts to integrate EV load as cost-effectively as possible.” A…