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).

Bottom Line Up Front: The Department of Energy (DOE) will implement new cybersecurity programs to enhance energy sector resilience. DOE’s announcement coincides with the Senate Energy and Natural Resources Committee’s support for the DOE’s Office of Cybersecurity, Energy Security, and Emergency Response (CESER). Expect to see resilience to cyber attacks in future government procurement activities.

On March 18, 2021, CESER announced several new research programs designed to enhance the safety and resilience of the U.S. energy sector. The Trump administration established CESER to protect critical energy infrastructure by assisting oil, natural gas, and electricity industries secure their infrastructure. Currently, energy infrastructure faces threats not only from climate and natural hazards, but also evolving and increasing physical and cyber threats.

On Friday, May 1, 2020, President Trump issued a new Executive Order (the Bulk-Power Order) to prohibit transactions within the U.S. for the acquisition or installation of certain “bulk-power system electric equipment” which is sourced from foreign adversaries. In the Bulk-Power Order, President Trump expressed a determination that “the unrestricted foreign supply of bulk-power system