Summary of FERC Meeting Agenda for December 2023 | White & Case LLP

Below are summaries of the agenda items for the Federal Energy Regulatory Commission’s open meeting to be held on December 19, 2023, pursuant to the sunshine notice released on December 12, 2023.

In this issue…

  • Electric Items
  • Gas Items
  • Hydro Items
  • Certificate Items

Electric

E-1 – Federal Power Act Section 203 Blanket Authorizations for Investment Companies (Docket No. AD24-6-000). The record in Docket No. AD24-6-000 has not yet been populated or initiated in eLibrary. Agenda item E-1 may be an action that is being taken sua sponte by the Commission with respect to Section 203 Blanket Authorizations as they apply to Investment Companies.

E-2 – Emera Energy LNG, LLC, Emera Energy Services Subsidiary No. 11 LLC, Emera Energy Services Subsidiary No. 12 LLC, Emera Energy Services Subsidiary No. 13 LLC, Emera Energy Services Subsidiary No. 15 LLC (Docket Nos. ER23-2657-001; ER23-2658-001; ER23-2659-00; ER23-2660-001; ER23-2661-001). On August 18, 2023, Emera Energy LNG, LLC, Emera Energy Services Subsidiary No. 11 LLC, Emera Energy Services Subsidiary No. 12 LLC, Emera Energy Services Subsidiary No. 13 LLC, Emera Energy Services Subsidiary No. 15 LLC (collectively, Emera Applicants) filed revised market-based rate tariffs with the Commission to remove the restrictions on the sales of electric capacity, energy, and ancillary services at market-based rates in any balancing authority area (BAA) directly connected to the Tampa Electric Company (Tampa Electric) BAA. On October 16, 2023, the Commission issued a deficiency letter requesting that the Emera Applicants provide serial numbers for the indicative screens supporting their filing. On October 27, 2023, the Emera Applicants filed their response including the relevant serial numbers for the indicative screens supporting their filing. Agenda item E-2 may be an order on the Emera Applicants revised market-based rate tariffs.

E-3 – Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, California Electricity Oversight Board v. Sellers of Long-Term Contracts to the California Department of Water Resources (Docket Nos. EL02-60-007; EL02-60-013; EL02-62-006; EL02-62-012). This proceeding spans twenty-one years. The current phrase of the proceeding arises based on the limited remand of and ALJ decision in 2016, which addressed whether the Mobile-Sierra presumption of just and reasonable rates is avoided with respect to the long-term contract agreed to between Shell Energy North America (US), L.P. (Shell) and the California Department of Water Resources (CDWR) on May 25, 2001 (the Shell Contract). The 2016 initial decision found sua sponte that the California Parties (the California Parties include: Public Utilities Commission of the State of California; the People of the State of California, ex rel. Rob Bonta, Attorney General of the State of California; Pacific Gas and Electric Company; and Southern California Edison Company) demonstrated that such presumption should be avoided because Shell committed fraud in the inception under California law. On June 17, 2021, the Commission remanded “to the Presiding Judge the limited issue of whether the Mobile-Sierra presumption is avoided as to the Shell Contract due to fraud on Shell’s part at the contract formation stage such that the contract was not the result of legitimate arms’ length negotiations.” One June 23, 2022, the Presiding Judge found that the California Parties have proved that the Mobile-Sierra presumption of the justness and reasonableness of the Shell Contract should be avoided because: (1) Shell committed fraud that directly affected the Shell Contract during the California Energy Crisis by altering the playing field such that the contract was not the product of fair, arms-length negotiations; and (2) Shell’s conduct constituted fraud-in-the-inception. The Revised Partial Initial Decision also found that the California Parties did not prove that Shell’s conduct constituted fraud-in-the-inducement and that, in this context, the California Parties did not prove that the Mobile-Sierra presumption should be avoided (Revised Partial Initial Decision). On July 25, 2022, the California Parties, Shell, and Trial Staff all filed Briefs on Exceptions to the Revised Partial Initial Decision. On August 15, 2022, the California Parties, Shell, and Trial Staff all filed Briefs Opposing Exceptions to the Revised Partial Initial Decision. On August 16, 2022, the California Parties filed a General Motion of Expedited Decision. On August 29, 2022, Shell filed a Motion to Leave to Answer and Answer in response to the California Parties’ Brief Opposing Exceptions filed August 15, 2022. On September 9, 2022, the California Parties filed their Answer in Opposition to Shell’s Motion for Leave to Reply to the Brief on Exceptions filed on August 29, 2022. On March 8, 2023, the California Parties filed their Second Motion for Expedited Disposition of Exceptions to Revised Partial Initial Decision on Remand, requesting a ruling by July 21, 2023. On March 10, 2023, Shell filed an Answer to the Second Motion to Expedite, agreeing to the relief requested by the California Parties but disagreeing to the California Parties’ characterization of the proceeding that Shell owe refunds to ratepayers. On September 1, 2023, the California Parties submitted a Renewed Motion for Disposition of Exceptions requesting that the Commission rule by December 1, 2023, on the on the Revised Partial Initial Decision on Remand and on the remaining issues in the initial 2016 Decision. The California Parties noted that absent a timely ruling by that date, the California Parties planned to submit a petition for writ of mandamus to the Ninth Circuit Court of Appeals. On September 8, 2023, Shell filed an Answer to the Renewed Motion to Expedite, agreeing to the relief requested by the California Parties but again disagreeing to the California Parties’ characterization of the proceeding that Shell owe refunds to ratepayers. Agenda item E-3 may be an order on the Motion for Expedited Disposition of Exceptions.

E-4 – Potomac-Appalachian Transmission Highline, LLC and PJM Interconnection, L.L.C. (Docket Nos. ER09-1256-000; ER09-1256-003; ER09-1256-005; ER09-1256-007; ER12-2708-000; ER12-2708-007; ER12-2708-009; ER12-2708-010). On November 17, 2023, Potomac-Appalachian Transmission Highline, LLC (PATH) and its operating companies PATH Allegheny Transmission Company, LLC (PATH-AYE) and PATH West Virginia Transmission Company, LLC (PATH-WV) (collectively, the PATH Companies), on behalf of themselves and Keryn Newman and Alison Haverty (together, the Pro Se Parties), Delaware Division of the Public Advocate, Maryland Office of People’s Counsel, and New Jersey Division of Rate Counsel (collectively, the Joint Consumer Advocates and, together with the PATH Companies and the Pro Se Parties, the Settling Parties) filed an Offer of Settlement (Offer of Settlement) that includes a Settlement Agreement (Settlement Agreement) that is supported by all Settling Parties and resolves all issues in docket numbers ER09-1256 and ER12-2708 , including any sub-dockets thereof. The Settlement Agreement provides a process for the cancellation of the PATH Companies’ formula transmission rate and will facilitate the final wind-down and termination of the PATH Companies. That same day, the PATH Companies submitted a motion requesting that the Commission stay action on any of the issues that remain open in docket numbers ER09-1256 and ER12-2708, including any sub-dockets thereof, until the Commission issues a final order approving a Settlement Agreement. On December 1, 2023, Commission Trial Staff submitted their initial comments on the Offer of Settlement and Settlement Agreement, recommending that the Commission approve it as fair and reasonable and in the public interest. Agenda item E-4 may be an order on the Offer of Settlement and Settlement Agreement.

E-5 – Southwest Power Pool, Inc. (Docket No. ER22-2339-001). On July 12, 2022, Southwest Power Pool (SPP) filed revisions to its Open Access Transmission Tariff to comply with the Commission’s Order No. 881 (First Compliance Filing). On May 18, 2023, the Commission issued an order accepting the First Compliance Filing, subject to further compliance (May 2023 Order). On June 16, 2023, SPP filed a motion requesting an extension of time to submit its compliance filing in response to the May 2023 Order. On June 30, 2023, the Commission issued a notice granting SPP an extension to August 1, 2023 to submit its compliance filing. On July 28, 2023, SPP submitted its compliance filing in response to the May 2023 Order (Second Compliance Filing). On August 17, 2023, the SPP Market Monitoring Unit (MMU) filed a Motion to Intervene and Protest. The MMU Protest stated two main concerns with the Second Compliance Filing: (1) SPP has not clearly delineated roles of SPP and the Transmission Owner in the proposed Tariff revisions; and (2) SPP has not demonstrated how SPP will use ambient-adjusted ratings (AARs) in SPP’s market processes (MMU Protest). On September 1, 2023, Evergy Missouri West, Inc., and Evergy Kansas Central, Inc. (collectively, the Evergy Companies), Xcel Energy Services Inc. (XES), on behalf of its utility operating company affiliate Southwestern Public Service Company, American Electric Power Service Corporation, on behalf of its affiliates Southwestern Electric Power Company and Public Service Company of Oklahoma (collectively, AEP), and Oklahoma Gas and Electric Company (OG&E) (together, the Joint TOs) filed a Motion for Leave to Answer and Answer to respond to the MMU’s second allegation that the tariff revisions do not place appropriate obligations on Transmission Owners (TOs) to be truthful in their AAR data submissions. The Joint TOs highlighted that the TOs already have a duty of candor to provide accurate and factual information to Regional Transmission Organizations or MMUs. On September 1, 2023, SPP also filed a Motion for Leave to Answer and Answer and argued the MMU Protest should be denied as the arguments presented do not accurately describe the requirements of the May 2023 Order or the requirements of Order No. 881. On September 13, 2023, the MMU filed a Motion for Leave to Respond and Response to the Joint TOs and SPP’s Answers. First, the MMU argues that the Joint TOs rely solely on FERC regulations requiring truthfulness that apply to Sellers of wholesale energy and market participants to argue that TOs require no additional candor requirements. Second, in response to SPP’s comments, the MMU clarified that the purpose behind its protest was to ensure that the requirements imposed by FERC in Order 881 and the Compliance Order are captured in the SPP Tariff. Agenda item E-5 may be an order on SPP’s Second Compliance Filing.

E-6 – Greenbacker Renewable Energy Company LLC, Greenbacker Renewable Energy Company II, LLC (Docket No. EL24-4-000). On October 16, 2023, Greenbacker Renewable Energy Company LLC (Greenbacker) and Greenbacker Renewable Energy Company II, LLC (Greenbacker II, and with Greenbacker, the Petitioners), on behalf of themselves and their current and future subsidiary companies that are holding companies or associated service companies (collectively with Petitioners, the Greenbacker Companies) under the Public Utility Holding Company Act of 2005 (PUHCA), filed a petition for a declaratory order granting the Greenbacker Companies an individual exemption from the access to books and records requirements of 18 C.F.R. § 366.2 and the accounting, record-retention, and reporting requirements of 18 C.F.R. §§ 366.21, 366.22, and 366.23. The Greenbacker Companies described they are currently exempt holding companies under 18 C.F.R. § 366.3(a), but certain current and future subsidiaries are (or will be) developing, owning, and operating grid-charged battery energy storage systems in the United States, some of which will be engaged exclusively in retail sales. The Greenbacker Companies explain that to the extent these battery storage subsidiaries are deemed to be “electric utility companies” under PUHCA, the Greenbacker Companies will not qualify for the “non-traditional utility” exemption for Commission-jurisdictional utilities set forth in 18 C.F.R. § 366.3(b)(2)(ii) and as such they are submitting this petition for declaratory order to granting an individual exemption from the access to books and records, accounting, record-retention, and reporting requirements under PUHCA. Agenda item E-6 may be an order on the Greenbacker Companies’ petition for declaratory order request.

E-7 – PJM Interconnection, L.L.C. (Docket No. ER24-163-000). On October 20, 2023, Exelon Corporation (Exelon), on behalf of three of its affiliates, Baltimore Gas and Electric Company (BGE), PECO Energy Company (PECO), and Potomac Electric Power Company (Pepco), submitted pursuant to Sections 205 and 219 of the FPA a request for authorization from the Commission to recover 100 percent of prudently incurred costs associated with investment in certain transmission associated with the Brandon Shores generating facility if the project is abandoned or cancelled, in whole or in part, for reasons beyond the control of BGE, PECO, or Pepco. Agenda item E-7 may be an order regarding BGE, PECO, and Pepco’s request.

E-8 – Tri-State Generation and Transmission Association, Inc.; Wheat Belt Public Power District, La Plata Electric Association, Inc., Northwest Rural Public Power District, San Isabel Electric Association, Inc., San Miguel Power Association, Springer Electric Cooperative, Inc., and United Power Inc. v. Tri-State Generation and Transmission Association, Inc. (Docket Nos. ER21-2818-000, EL22-4-000, (Consolidated), EL21-75-000 & EL21-53-000 (Unconsolidated)). On April 13, 2020, Tri-State Generation and Transmission Association, Inc. (Tri-State) filed, in Docket No. ER20-1559-000, its initial filing of Rate Schedule FERC No. 281, which sets forth the terms and conditions under which Tri-State Members may terminate their Wholesale Electric Service Contract (WESC) and membership in Tri-State, including the methodology and procedures for determining a Contract Termination Payment (CTP Methodology). On June 12, 2020, the Commission accepted Tri-State’s CTP Methodology for filing, suspended it for a nominal period, to become effective June 13, 2020, subject to refund, and established hearing and settlement judge procedures. On February 26, 2021, seven of the Tri-State Members that requested CTP calculations filed a Federal Power Act Section 206 complaint, in Docket No. EL21-53-000, contending that Tri-State’s decision to not provide CTP calculations in response to the CTP Requests is unjust, unreasonable, or unduly discriminatory or preferential (CTP Complaint). The CTP Complaint remains pending before the Commission. On June 17, 2021, the Commission issued a Show Cause Order in Docket No. EL21-75-000, finding that Tri-State’s Tariff does “not provide clear and transparent procedures for utility members considering such termination to obtain [CTP] calculations from Tri-State, or for Tri-State to perform such calculations prior to utility members making their termination decisions.” The Commission directed Tri-State to either show cause as to why its tariff remains just and reasonable, or explain what changes to its Tariff Tri-State believes would remedy the Commission’s concerns identified in the Show Cause Order. The Commission explicitly stated that the actual formula of the CTP Methodology was outside the scope of the Show Cause Proceeding. In response to the Show Cause Order, on September 1, 2021, Tri-State filed proposed amendments to Rate Schedule FERC No. 281, in Docket No. ER21-2818-000, revising the CTP calculation, and including procedures for utility Members to obtain pretermination CTP calculations and rules governing a utility Member’s requests for such calculations and, if they so elect, early termination of their WESC and withdrawal from Tri-State (Modified CTP Methodology Proceeding). In an order issued on October 29, 2021, the Commission accepted Tri-State’s Modified CTP Methodology for filing, suspended the filing for a nominal period, to be effective November 1, 2021, subject to refund. 32 Additionally, the Commission instituted a Federal Power Act Section 206 proceeding, in Docket No. EL22-4-000, which it consolidated with the Section 205 proceeding, and established hearing procedures concerning the justness and reasonableness of the Modified CTP Methodology and established hearing procedures. On September 29, 2022, the presiding administrative law judge issued an initial decision in the ER21-2818 and EL22-4-000 proceeding. The parties subsequently filed briefs on exception to the administrative law judge’s Initial Decision. Agenda item E-8 may be an order relating to the Tri-State CTP Methodology proceedings and/or the Modified CTP Methodology Initial Decision.

E-9 – Southwest Power Pool, Inc. (Docket No. ER22-2183-000). It appears the Meeting Agenda lists an incorrect docket for item E-9. The above-captioned docket, ER22-2183-000, contains an Order Accepting Proposed Cost Sharing and Recovery Agreement, Rate Schedule, Tariff Revisions August 18, 2022, in a proceeding involving Central Hudson Gas and Electric Corporation and Consolidated Edison Company of New York, Inc. and does not appear to involve Southwest Power Pool, Inc., as captioned. No requests for rehearing or clarification were filed. We are unable to determine based on publicly available information the proceeding identified as agenda item E-9.

E-10 – Southwest Power Pool, Inc. (Docket No. ER22-1846-004). On May 10, 2022, pursuant to section 205 of the FPA and section 35.13 of the Commission’s regulations, Southwest Power Pool, Inc. (SPP) submitted proposed revisions to Attachment J of its Open Access Transmission Tariff (SPP Tariff) to establish a process through which, on a case-by-case basis, all of the costs of a transmission facility with a voltage level between 100 kV and 300 kV can be allocated on a regional, postage-stamp basis. In an order issued October 28, 2022, the Commission accepted SPP’s proposed SPP Tariff revisions, subject to condition, effective August 1, 2022, as requested, and directed SPP to submit a compliance filing. On November 16, 2022, SPP submitted the compliance filing as directed. On November 28, 2022, certain transmission owners and utilities located in the SPP region filed timely requests for rehearing of October 28, 2022 Order. On July 13, 2023, the Commission issued an order on rehearing setting aside the October 28, 2022 Order, rejecting SPP’s initial tariff filing, and dismissing SPP’s compliance filing as moot. On August 14, 2023, Sunflower Electric Power Corporation, Basin Electric Power Cooperative, Midwest Energy, Inc., and Kansas Electric Power Cooperative, Inc. filed requests for rehearing of the July 13, 2023 Order. Agenda item E-10 may be an order relating to the request for rehearing of the July 13, 2023 Order on the SPP Tariff filings.

E-11 – Solar Energy Industries Association v. Midcontinent Independent System Operator, Inc.; Midcontinent Independent System Operator, Inc. (Docket Nos. EL23-28-001 & ER23-1195-002). On January 31, 2023, pursuant to sections 206 and 306 of the FPA, Solar Energy Industries Association filed a complaint in Docket No. EL23-28 alleging that the Midcontinent Independent System Operator, Inc. (MISO) Open Access Transmission, Energy and Operating Reserve Markets Tariff (MISO Tariff) was unjust, unreasonable, and unduly discriminatory or preferential because it prohibited wind, solar, and battery hybrid resources from providing ancillary services that they are technically capable of providing. Solar Energy Industries Association (SEIA) requested the Commission issue an order directing MISO to reform its current ancillary service provision in the MISO Tariff to allow wind, solar, and battery hybrid resources to participate in all of MISO’s ancillary services markets in which they are technically capable of participating. On August 31, 2023, the Commission issued an order denying the complaint. On October 1, 2023, SEIA filed a request for rehearing of the Commission’s August 31 order denying their complaint. Relatedly, in Docket No. ER23-1195, on February 28, 2023, as amended on June 5, 2023, MISO filed, pursuant to section 205 of the FPA and Part 35 of the Commission’s regulations, proposed revisions to the MISO Tariff to make Dispatchable Intermittent Resources (DIR) ineligible to provide the Up Ramp Capability (Up Ramp) and Down Ramp Capability (Down Ramp) products and to change the Down Ramp demand curve from $5/MWh to $0/MWh. On August 31, 2023, the Commission issued an order accepting MISO’s proposed revisions to the MISO Tariff. On October 1, 2023, SEIA filed a request for rehearing of the Commission’s August 31 order accepting the MISO Tariff proposed revisions. Agenda item E-11 may be an order relating to the SEIA requests for rehearing to the MISO complaint denial and MISO Tariff acceptance orders.

E-12 – Summit Ridge Energy, LLC and Osaka Gas USA Corporation (Docket No. EL23-106-000). On September 28, 2023, Summit Ridge Energy, LLC and Osaka Gas USA Corporation, on behalf of themselves and their current and future parent holding companies and subsidiary companies, filed a petition for declaratory order for exemption from the requirements of the Public Utility Holding Company Act’s record retention and accounting requirements under 18 C.F.R. §§ 366.2, 366.21, 366.22, and 366.23. Agenda item E-12 may be an order on the petition for declaratory order.

E-13 – PJM Interconnection L.L.C. (Docket Nos. ER22-2931-000, EL24-6-000). On September 26, 2022, PJM Interconnection L.L.C. (PJM) submitted for filing an unexecuted Interconnection Service Agreement and unexecuted Interconnection Construction Service Agreement, pursuant to section 205 of the Federal Power Act (FPA). The respective interconnection agreements are among PJM, New Market Solar, LLC (the interconnection customer), and Delmarva Power & Light Company (the interconnection transmission owner). Both interconnection agreements were submitted to the Commission due to the inclusion of nonconforming provisions as set forth in the PJM Tariff. New Market Solar, LLC (New Market Solar) did not execute the agreements at the time of filing due to concerns regarding the AC1-190 Facilities Study Report, including the Network Upgrades identified as necessary to accommodate the project as well as the cost estimates associated with such upgrades. Consequently, following several weeks of discussions above the parties, on August 26, 2022, New Market Solar requested that PJM submit the interconnection agreements as unexecuted to the Commission. On October 17, 2022, SunEnergy 1, LLC (SunEnergy 1) filed a Protest, alleging that the System Impact Study Report as well as the interconnection agreements themselves contain unjust and unreasonable provisions. In particular, SunEnergy 1 states that the requirement imposed on New Market Solar to obtain certain land rights would violate both the pro forma interconnection agreements and the PJM Tariff. On August 3, 2023, SunEnergy 1 submitted a motion requesting expedited action on the filing. Agenda item E-13 may be an order on the unexecuted interconnection agreements among PJM, New Market Solar, and Delmarva Power & Light Company.

E-14 – Energy Harbor LLC v. PJM Interconnection, L.L.C. (Docket No. EL23-63-000). On April 27, 2023, Energy Harbor LLC (Energy Harbor) submitted a complaint against PJM, pursuant to sections 206, 306, and 309 of the FPA. In the complaint, Energy Harbor asserted that PJM’s calculation and assessment of Non-Performance Charges against itself does not comport with the PJM Open Access Transmission Tariff (OATT) and, in light of the FPA, is unjust and unreasonable. Under the Commission-approved Capacity Performance framework included in PJM’s filed rate, Capacity Resources receive payments in PJM’s capacity market in exchange for undertaking performance obligations in real time when PJM needs them to perform during emergencies. Capacity Resources that fail to meet those obligations during Performance Assessment Intervals (PAIs) are assessed a Non-Performance Charge by PJM.

According to Energy Harbor, the Non-Performance Charges stem from a PJM-approved outage at the Sammis Facility during Winter Storm Elliott, a severe weather event occurring in the region on December 23 and 24, 2022. Across the PJM footprint, nearly $1.8 billion in total Non-Performance Charges were assessed across approximately 200 market participants due to Performance Shortfalls during the PAIs.

According to Energy Harbor, following the outage, PJM incorrectly found a Performance Shortfall at the Sammis Facility despite the “direct excuse for a unit’s reduced performance.” On April 7, 2023, PJM issued invoices that included these Non-Performance Charges, and Energy Harbor submitted its initial payment of its invoice to PJM under protest on April 13, 2023. In the complaint, Energy Harbor requested that the Commission direct PJM to revise and correct its calculation of Non-Performance Charges in accordance with its OATT as well as refund any imprudently assessed charges to Energy Harbor.

On May 5, 2023, PJM submitted a motion for extension of time, request for expedited action on extension request, and opposing fast track processing of the complaint. PJM stated that the Energy Harbor complaint is only one of ten concurrent complaints disputing various Non-Performance Charges relating to unit outages during Winter Storm Elliott, and therefore, PJM indicated that its resources and staff would benefit from additional time to respond to all complaints and inquiries in order to furnish a comprehensive formal record in these proceedings. On May 10, 2023, Energy Harbor submitted an answer to the May 5 motion by PJM, stating that this dispute arose due to a Tariff interpretation issue rather than a factual dispute, and that additional delays might impose undue costs to Energy Harbor as a result of the ongoing monthly bills from the Non-Performance Charges during the PAI. In all, capacity market sellers in PJM filed fifteen respective complaints disputing the respective Non-Performance Charges levied by PJM.

A significant number of entities, utilities, and stakeholders filed motions of intervention, comments, and protests. For example, the protest submitted by PSEG Companies, et al. (PSEG) on May 26, 2023 sets forth a common refrain, namely that the Commission must apply the filed rate in the PJM Tariff. Pursuant to Attachment DD, Section 10A(d) of the Tariff, in exchange for receiving capacity revenue, capacity resources must perform when called upon by PJM in emergency conditions, with only two narrow exemptions from penalties: (1) if the resource was on a pre-approved outage, such as for maintenance; and (2) if PJM decides not to schedule the resource for reasons unrelated to the costs of operating the resources. The protests and complaints generally state that the Commission should only determine if either of those exemptions is applicable; if not, the Commission must dismiss the complaints against PJM as the operators were compelled to provide services from their capacity resources and failed to do so. On June 9, 2023, Enel North America, Inc. (Enel) submitted comments mirroring the PSEG and similar protests and comments, asserting that the Commission should not retroactively change the provisions of the PJM Tariff in order to “let non-performing generators off the hook.” Enel referred to the capacity performance construct of PJM entitling “over-performing” resources from receiving Performance Bonus Credits, which are derived from the Non-Performance Charges during PAIs. Ultimately, Enel and other “over-performing” operators during the PAIs of Winter Storm Elliott argued to the Commission that a revision of the Non-Performance Charges would unduly deprive them of the Performance Bonus Credits.

On June 5, 2023, the Commission issued an order establishing global settlement judge procedures for all of the concurrent Non-Performance Charges dockets. On June 13, 2023, the chief judge issued an order designating a settlement judge to preside over the dispute. In the ensuing months, the parties participated in a total of eight settlement conferences. On August 31, 2023, a majority of the participants indicated that they reached a settlement in principle. Accordingly, on September 5, 2023, the settlement judge issued an order terminating the settlement procedures in anticipation of a forthcoming settlement agreement to be produced by the parties.

On September 29, 2023, PJM submitted an Offer of Settlement and Explanatory Statement, purporting to resolve the outstanding material issues across the Non-Performance Charges proceedings between all parties. Notably, the settlement would: provide a “just, reasonable, and nondiscriminatory resolution” of the Winter Storm Elliott complaints by reducing the total Non-Performance Charges assessed to operators by 31.7 percent; preserve a market participant’s net position as either a Performance Bonus Credit recipient or Non-Performance Charge payor; and release all claims against PJM arising out of grid disruptions from Winter Storm Elliott.

Agenda item E-14 may be an order on the Offer of Settlement aiming to resolve the outstanding issues related to Non-Performance Charges against operators during Winter Storm Elliott in PJM. The distinction between this proceeding and the other Non-Performance Charge dockets in agenda items E-15 and E-16 may be the Tariff exception of a “pre-approved outage,” which was a key tenet of the original argument by Energy Harbor.

E-15 – PJM Interconnection L.L.C. (Docket No. ER23-2975-000); Essential Power OPP, LLC, Essential Power Rock Springs, LLC and Lakewood Cogeneration, L.P. v. PJM Interconnection, L.L.C. (Docket Nos. EL23-53-000, EL23-53-002); Aurora Generation, LLC, LSP University Park, LLC, Rockford Power, LLC, Rockford Power II, LLC, University Park Energy, LLC, Elwood Energy LLC, Jackson Generation, LLC, Lee County Generating Station, LLC, and Lincoln Generating Facility, LLC v. PJM Interconnection. L.L.C. (Docket Nos. EL23-54-000, EL23-54-002); Coalition of PJM Capacity Resources v. PJM Interconnection, L.L.C. (Docket Nos. EL23-55-000, EL23-55-002); Talen Energy Marketing LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-56-000, EL23-56-002); Lee County Generating Station, LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-57-000, EL23-57-001, EL23-57-004, EL23-57-006); SunEnergy 1, LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-58-000, EL23-58-002); Lincoln Generating Facility, LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-59-000, EL23-59-002); Parkway Generation Keys Energy Center LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-60-000, EL23-60-002); Old Dominion Electric Cooperative v. PJM Interconnection, L.L.C. (Docket Nos. EL23-61-000, EL23-61-002); Energy Harbor LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-63-000, EL23-63-002); Calpine Corporation v. PJM Interconnection, L.L.C. (Docket Nos. EL23-66-000, EL23-66-002); Invenergy Nelson LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-67-000, EL23-67-002); East Kentucky Power Cooperative, Inc. v. PJM Interconnection, L.L.C. (Docket Nos. EL23-74-000, EL23-74-002); CPV Maryland, LLC and Competitive Power Ventures Holding, LP v. PJM Interconnection, L.L.C. (Docket Nos. EL23-75-000, EL23-75-002); Parkway Generation Operating LLC and Parkway Generation Sewaren Urban Renewal Entity LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-77-000, EL23-77-002). The above-captioned dockets pertain to the respective proceedings, fact patterns, and settlement agreement described previously in agenda item E-14. Accordingly, agenda item E-15 may be an order on the Offer of Settlement aiming to resolve the outstanding issues related to Non-Performance Charges against operators during Winter Storm Elliott in PJM.

E-16 – Essential Power OPP, LLC, Essential Power Rock Springs, LLC and Lakewood Cogeneration, L.P. v. PJM Interconnection, L.L.C. (Docket Nos. EL23-53-000, EL23-53-003); Aurora Generation, LLC, LSP University Park, LLC, Rockford Power, LLC, Rockford Power II, LLC, University Park Energy, LLC, Elwood Energy LLC, Jackson Generation, LLC, Lee County Generating Station, LLC, and Lincoln Generating Facility, LLC v. PJM Interconnection. L.L.C. (Docket Nos. EL23-54-000, EL23-54-003); Coalition of PJM Capacity Resources v. PJM Interconnection, L.L.C. (Docket Nos. EL23-55-000, EL23-55-003); Talen Energy Marketing LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-56-000, EL23-56-003); Lee County Generating Station, LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-57-000, EL23-57-005); SunEnergy 1, LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-58-000, EL23-58-003); Lincoln Generating Facility, LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-59-000, EL23-59-003); Parkway Generation Keys Energy Center LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-60-000, EL23-60-003); Old Dominion Electric Cooperative v. PJM Interconnection, L.L.C. (Docket Nos. EL23-61-000, EL23-61-003); Energy Harbor LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-63-000, EL23-63-003); Calpine Corporation v. PJM Interconnection, L.L.C. (Docket Nos. EL23-66-000, EL23-66-003); Invenergy Nelson LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-67-000, EL23-67-003); East Kentucky Power Cooperative, Inc. v. PJM Interconnection, L.L.C. (Docket Nos. EL23-74-000, EL23-74-003); CPV Maryland, LLC and Competitive Power Ventures Holding, LP v. PJM Interconnection, L.L.C. (Docket Nos. EL23-75-000, EL23-75-003); Parkway Generation Operating LLC and Parkway Generation Sewaren Urban Renewal Entity LLC v. PJM Interconnection, L.L.C. (Docket Nos. EL23-77-000, EL23-77-003) (not consolidated). The above-captioned dockets pertain to the respective proceedings, fact patterns, and settlement agreement described previously in agenda item E-14. On September 8, 2023, PJM and nearly seventy complainants and intervenors filed a Joint Waiver Request, which requested that the Commission issue an expedited order granting the waiver no later than September 25, 2023. The Joint Waiver Request is a limited, prospective waiver of section 7.1A and Attachment DD, section 10A(j) of the PJM Tariff and section 14B.2 of the PJM Operating Agreement in order to defer collection of the remaining unbilled Non-Performance Charges associated with Winter Storm Elliott as well as the disbursement of revenue from those Non-Performance Charges to Performance Bonus Credits. PJM requested that the waiver would be in effect, if granted, until it can fully implement the billing consequences of an eventual order issued by the Commission. PJM sought a shortened comment period on the Joint Waiver Request so that its Market Settlements staff can modify the billing statements in advance of the next cycle on October 6, 2023, with payment due on October 13, 2023. The Commission implemented the shortened comment period on the Joint Waiver Request, setting a comment deadline of September 11, 2023. On September 22, 2023, Chief Conemaugh Power, LLC and Chief Keystone Power, LLC (Chief Companies) filed an out-of-time motion to intervene in the above-captioned proceedings. Chief Companies also submitted a Protest against the forthcoming Settlement Agreement as the lone objecting party, after the settlement procedures had been concluded following months of discussions. On September 25, 2023, the Commission issued an order granting the Joint Waiver Request and also granting the Chief Companies’ out-of-time motion and protest given their interest in the proceeding through its eligibility for Performance Bonus Credits. On October 25, 2023, PJM and the settling parties filed a partial request for rehearing of the September 25 order, requesting that the Commission reverse course and deny the Chief Companies’ intervention and protest, citing the late submittal and lack of participation in duly conducted settlement procedures for months prior. Agenda item E-16 may be an order on the partial request for rehearing by PJM.

Gas

G-1 – BP Pipelines (Alaska) Inc., ConocoPhillips Transportation Alaska, Inc., and ExxonMobil Pipeline Company (Docket No. OR14-6-003). This sub-docketed proceeding arose on a voluntary remand from the Commission (Remand Order) regarding certain issues relating to the existing Trans Alaska Pipeline System (TAPS) Quality Bank. By way of background, the TAPS Quality Bank was developed to compensate shippers for discrepancies between the value of the crude oil they inject into the commingled common stream and the value of the crude oil they receive at the end of the pipeline. The TAPS Quality Bank assigns relative values to each of nine cuts comprising the common stream after simple distillation. The value for six of the cuts is based on published market prices, but the value of the three remaining cuts have no published prices absent further processing. Those values, therefore, are calculated based on finished products less processing costs. In the Remand Order, issued in 2020, the Commission set for hearing (a) whether the existing TAPS Quality Bank valuation formula for Resid continues to be just and reasonable and (b) if the current TAPS Quality Bank is unjust and unreasonable, whether the capital cost factor used in the Resid formula should be revised. In addition, the Remand Order directed that the hearing should address whether the current 20% capital recovery factor remains just and reasonable. Finally, the Remand Order directed that this sub-docketed proceeding may address certain issues identified by the United States Court of Appeals for the District of Columbia Circuit (DC Circuit). On May 16, 2022, the Presiding Administrative Law Judge (ALJ) issued an initial decision (Initial Decision) addressing each of the points set for hearing in the Remand Order. In brief, the Presiding ALJ concluded that the current TAPS Quality Bank remains just and reasonable, and that Resid is accurately valued pursuant to the formula. However, the Presiding ALJ made some suggestions for clarifying the Resid portion of the TAPS Quality Bank formula “as the third administrative law judge to examine these issues.” Agenda item G-1 may be an order on the Initial Decision, including the briefs thereon and opposing exceptions thereto.

Hydro

H-1 – HGE Energy Storage 3 LLC (Docket No. P-15287-000). On September 27, 2022, HGE Energy Storage 3 LLC (HGE) submitted an application for a preliminary permit for the Fort Ross Pumped Storage Project to be located near Jenner, California. On June 29, 2023, the Commission issued a letter to HGE indicating that the preliminary permit application had been received and requesting the distribution of the application to other relevant federal and state regulatory agencies for review. On October 11, 2023, the Commission issued a letter requesting supplemental information pertaining to land ownership concerns raised by multiple commenters, inquiring if the proposed project would occupy any federal lands, state lands, or lands within a national monument. On October 12, 2023, HGE submitted a response to the October 11 supplemental information request, stating that the proposed project would be near a state park and that no part of the project boundary would be in the state park. Agenda item H-1 may be an order on the preliminary permit application by HGE.

H-2 – PacifiCorp (Docket No. P-2082-071). On July 5, 2023, PacifiCorp submitted an application for non-capacity amendment of license for the Klamath Hydroelectric Project. According to the application, the final procedural step in implementing the Klamath Hydroelectric Settlement Agreement is the conveyance of Keno Dam and associated lands and infrastructure to the US Department of Interior (Interior). Accordingly, PacifiCorp and Interior executed a Donation Agreement in order to facilitate this conveyance and therefore finalize the Klamath Hydroelectric Project in full. On August 16, 2023, Interior filed comments in support of the application in order to remove the Keno facility from the Klamath license. Agenda item H-2 may be an order on the application for non-capacity amendment of license by PacifiCorp.

Certificates

C-1 – ANR Pipeline Company (Docket No. CP23-15-000). On November 14, 2022, ANR Pipeline Company (ANR) filed an application (Application) with the Commission requesting a certificate of public convenience and necessity pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA) and the Commission’s regulations to construct, operate, and abandon certain natural gas pipeline facilities in Wisconsin and Illinois (the Wisconsin Reliability Project, or WRP). The WRP would involve replacing 48 miles of existing pipeline, modification and replacement of compression facilities at two compressor stations, modifications to six meter stations, and installation and removal of auxiliary facilities. Commission staff issued an Environmental Assessment (EA) on July 21, 2023. Commission staff concluded in the EA that approval of the proposed WRP, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment. Agenda item C-1 may be an order on the Application.

C-2 – Mountain Valley Pipeline, LLC (Docket No. CP16-10-012). On October 13, 2017, the Commission issued an order granting a certificate of public convenience and necessity (Certificate) for to Mountain Valley Pipeline, LLC (Mountain Valley) for the Mountain Valley Pipeline Project. On September 12, 2023, Mountain Valley filed an application (Application) with the Commission for a limited amendment to its Certificate, approving revised initial transportation rates for the Mountain Valley Pipeline Project that reflect the current $6.6 billion construction cost estimate. Mountain Valley requested that the Commission issue an order on an expedited basis, by October 27, 2023. Agenda item C-2 may be an order on the Application.

C-3 – Mountain Valley Pipeline, LLC (Docket No. CP19-14-002). On June 15, 2023, Mountain Valley Pipeline, LLC (Mountain Valley) filed a request (Extension Request) with the Commission requesting an extension of time, until June 18, 2026, to complete construction of the MVP Southgate Project and place the project facilities into service. On June 22, 2023, the Commission issued a Notice of Request for Extension of Time and set July 7, 2023 as the deadline for comments. On June 30, 2023, the Commission issued a notice extending the comment period until July 24, 2023. Numerous interested parties filed comments on the Extension Request, with most public interest groups and individuals opposing the Extension Request specifically and/or the MVP Southgate Project and broader Mountain Valley Project generally. Agenda item C-3 may be an order on the Extension Request.

C-4 – Port Arthur LNG Phase II, LLC, and PALNG Common Facilities Company, LLC (Docket No. CP20-55-001). On September 21, 2023, the Commission issued an order (Order) authorizing Port Arthur LNG Phase II, LLC and PALNG Common Facilities Company, LLC (collectively, PALNG Phase II) to construct and operate two additional liquefaction trains (i.e., Trains 3 and 4) and associated facilities at the Port Arthur LNG terminal located in Jefferson County, Texas (the Expansion Project). On October 23, 2023, PALNG Phase II filed a motion for clarification or, in the alternative, request for limited rehearing of the Order (Rehearing Request). In the Rehearing Request, PALNG Phase II request that the Commission either clarify what it describes as “a minor discrepancy in the technical terms of Condition 24 in the [] Order, consistent with prior practice,” or grant limited rehearing to the extent necessary to address such discrepancy. Specifically, PALNG Phase II requested clarification that Environmental Condition No. 24 does not substantively alter the manner in which information submitted in compliance with Environmental Condition No. 16 will be processed (i.e., that it is not required to receive written approval from the Commission’s Office of Energy Projects prior to undertaking the activities subject to Environmental Condition No. 16, including pilings, structures, and foundation activities, unless specifically identified by the Director of such office in compliance with Condition 2 of the Order. On November 24, 2023, the Commission issued a notice of denial of rehearing by operation of law with respect to the Rehearing Request while providing that the Commission would address the Rehearing Request in a future order. Agenda item C-4 may be an order on the Rehearing Request.

C-5 – Georgia-Pacific Consumer Operations LLC (Docket No. CP22-16-000). On November 16, 2021, Georgia-Pacific Consumer Operations LLC (GPC) filed an application (Application) pursuant to section 7(b) of the Natural Gas Act and Part 157 of the Commission’s regulations, seeking authorization to abandon in-place approximately 19.5 miles of 8-inch-diameter natural gas transmission pipeline running from the out-of-service DCP Midstream (DCPM) Transfer Station in Union Parish, Louisiana to a point approximately one mile east of GPC’s Crossett Facility in Ashley County, Arkansas. Additionally, GPC proposes to abandon by removal all aboveground facilities associated with the 19.5 miles of pipeline (e.g., valves and cathodic protection). Commission staff issued an Environmental Assessment (EA) on June 13, 2022. Commission staff concluded in the EA that approval of the proposed abandonment project set forth in the Application, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment. Agenda item C-5 may be an order on the Application.

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