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On February 16, 2023, the Federal Energy Regulatory Commission (“FERC”) issued an order approving two extreme cold weather reliability standards: EOP-011-3 (Emergency Operations) and EOP-012-1 (Extreme Cold Weather Preparedness and Operations) proposed by the North American Electric Reliability Corporation (“NERC”), subject to modification.[1] The approved Reliability Standards help to maintain reliable operation of the Bulk Power System by ensuring that enough generating units will be available during a cold weather event. According to FERC, the proposed Reliability Standards EOP-011-3 and EOP-012-1 are improvements to the existing Reliability Standards, but NERC must address additional concerns such as ambiguity, applicability, and compliance timelines. NERC is directed to submit modifications within twelve months.…

On January 5, 2023, the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) vacated a decision from the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the “Bankruptcy Court”) in Electric Reliability Council of Texas, Inc. v. Just Energy Texas, L.P. (In re Just Energy Group, Inc.).[1] The Fifth Circuit ruled that the Bankruptcy Court should have abstained from the case involving the Electric Reliability Council of Texas (“ERCOT”)’s management of price rates of electricity and should have transferred the case to the state district court. The case was remanded with instructions to determine the appropriate trajectory of the case after abstention.…

Thanks to the Inflation Reduction Act (IRA), which went into effect in January, it can pay to be a brownfield – a term used to refer to a property that is affected by potential or confirmed contamination. Specifically, the IRA offers incentives to renewable energy development that takes place on a brownfield site, which is included as an “energy community” under the IRA. On April 4, 2023, the Internal Revenue Service (IRS) and the Department of Treasury published limited guidance (Notice 2023-29, Energy Community Bonus Credit Amounts under the Inflation Reduction Act of 2022) on the bonuses available for production and investment of energy facilities in energy communities. Unfortunately, even with the guidance, the eligibility of certain sites as brownfields remains uncertain.…

high voltage

In a rulemaking issued April 6, 2023, the Public Utility Commission of Texas (“Commission”) adopted amendments to market participant registration and certification requirements.[1] The Commission’s rule amendments significantly change qualification and reporting requirements for Retail Electric Providers (“REP”), Power Generation Companies (“PGC”), Self-Generators, and Power Marketers. This article outlines the most significant of these…

High voltage pylons with electric power lines transfering electricity from solar photovoltaic sells at sunrise. Production of sustainable energy concept

On February 8, 2023, the State of Minnesota enacted House File 7 (“H.F. 7”) to modify electric utility standards and revises the state’s goals for generating carbon-free electricity by 2040. As discussed below, H.F. 7 significantly modifies the legal frameworks that direct and incentivize future Minnesota electric sector developments and has implications for regional energy policy.…

distribution electric substation with power lines and transformers

Between October 2022 and February 2023, at least nine substations were attacked in North Carolina, Washington State, and Oregon, resulting in power outages for tens of thousands of people.  Damage to two substations in Moore County, North Carolina on December 3, 2022 caused 45,000 people to lose power, some for five days.…

On February 14, 2023, the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Energy Regulatory Commission’s (FERC) method for calculating the size of a small power production qualifying facility (QF) under PURPA as the net output or “send-out” capacity of the project. See Solar Energy Industries Association v. FERC, No. 21-1126 (D.C. Cir. 2023). To be a small power production QF under PURPA, a facility must use a qualified renewable resource, such as biomass, waste, wind, solar, or geothermal resources, to produce energy, and have a power production capacity that does not exceed 80 megawatts when considered with other facilities at the same site. FERC’s method of calculating the maximum size limitation was contested by Edison Electric Institute and Northwestern Energy (collectively, Utilities).…

On January 27, 2023, the U.S. Department of Energy (DOE) announced its intent to invest up to $47 million in funding for clean hydrogen research, development, and demonstration (RD&D) as part of its “Hydrogen Shot” – a program intended to reduce the cost of clean hydrogen to $1 per kilogram in the coming decade by reducing costs and improving the performance of hydrogen fuel cells. Hydrogen Shot is also part of the Biden administration’s strategy to decarbonize the electric grid entirely by 2035 and to reach net-zero emissions by 2050.…

The Inflation Reduction Act of 2022 (IRA) builds upon recent incentives for investment in hydrogen by encouraging producers and end users of clean hydrogen to continue developing clean hydrogen infrastructure. This article provides an overview of the incentives and how they may be accessed.…

The Bureau of Land Management (“BLM”) recently circulated a Proposed Rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation (“2022 Proposal”). This iteration, as BLM acknowledges, is a revamp of its fraught 2016 attempt to issue a similar rule ostensibly aimed at reducing natural gas waste on federal and Indian leases (“2016 Rule”). The 2016 Rule was ultimately struck down two years ago as unlawful. To the Wyoming federal court, the 2016 Rule sought to regulate air emissions—a role reserved for the Environmental Protection Agency (“EPA”) and the states—rather than prevent the waste of resources through flaring and other means. Undeterred, the Biden Administration believes it has learned from and theoretically fixed the flaws in the 2016 Rule through the 2022 Proposal. The 2022 Proposal claims to focus on reducing operator costs and generating taxpayer revenue. This is a shift from the 2016 Rule, which relied on the benefits from reduced carbon emissions to justify its issuance. Nevertheless, the question to many stakeholders remains: does the 2022 Proposal still exceed BLM’s authority, or has the agency done enough to win a future legal challenge?…