FERC last week rejected state and local regulators’ rehearing request over MISO’s plan to include its South region in cost sharing for its new category of interregional projects with PJM.
The commission on Monday said it was not convinced by the regulators’ reasoning for rehearing MISO’s planned regional cost allocation on its targeted market efficiency projects (TMEPs), a new, smaller breed of interregional project developed with PJM that targets historical congestion along the RTOs’ seams (ER17-2246-002).
All based in MISO South, the regulators — the Arkansas, Louisiana and Mississippi public service commissions; New Orleans City Council; and the Public Utility Commission of Texas — argued that the RTO’s filing was flawed because it had not named a termination date of the TMEP regional cost-sharing proposal when Entergy’s five-year transition period that limits cost-sharing in the region ends in December.
By that time, MISO has promised to have a comprehensive post-transition period cost allocation proposal filed with FERC. The RTO has been working with stakeholders on a preliminary proposal that would make cost sharing available to 100-kV projects along the PJM and SPP seams but limit it to internal market efficiency projects of 230 kV and above. (See Stakeholders Debate MISO Cost Allocation Plan.)
The regulators wanted assurances that MISO’s TMEP regional cost-sharing plan would not apply beyond the transition period or to MISO South. When it approved the plan late last year, FERC said that if MISO does not have a cost allocation plan readied as promised, the regional TMEP cost allocation would continue to be in effect even after the transition period expires. The RTO proposed to assign its regional share of the costs of TMEPs to transmission pricing zones based on their historical contribution to the market-to-market congestion relieved by the project.
The regulators said FERC’s decision improperly modified MISO’s proposal, citing the D.C. Circuit Court of Appeals’ 2017 ruling that the commission overstepped its authority in prescribing revisions to PJM’s minimum offer price rule. (See On Remand, FERC Rejects PJM MOPR Compromise.)
However, FERC said the MISO South regulators did not have a case for rehearing because they could not prove its decision had caused a concrete injury, or “aggrievement.” TMEP costs could be assigned to MISO South once the transition period expires, FERC acknowledged, but it also said that it was not clear a “mere potential for future harm” is substantial enough to amount to aggrievement.
| MISO
FERC also said MISO has already outlined a plan for if it does not follow through on a finalized comprehensive cost allocation. In that case, certain projects included in the annual Transmission Expansion Plan, including TMEPs, will be subject to the RTO’s existing cost allocation Tariff language.
“Commission precedent is clear: In the event of a conflict between pleadings and proposed tariff language, the tariff language controls,” FERC said.
The commission also disagreed with the regulators’ contention that by specifying that MISO’s plan could continue past the transition period expiration, it “transform[ed] the proposal into an entirely new rate of FERC’s own making.” It noted that MISO has committed to filing a new regional cost-sharing method for assigning MISO’s share of the costs of TMEPs prior to the end of the transition period.
“While we understand MISO South regulators’ desire for certainty regarding future assignment of MISO’s share of the costs of TMEPs, MISO has provided no indication that it intends to deviate from the commitment in its pleadings to convene stakeholder proceedings to develop a post-transition period proposal,” FERC said.
MISO and PJM’s TMEP portfolio, approved last year, comprises five congestion-relieving interregional upgrades to existing systems in Illinois, Indiana, Michigan and Ohio. The projects, which have individual $20 million cost caps, will coincidentally cost $20 million combined. On average, the projects’ costs will be allocated 69% to PJM and 31% to MISO, based on projected benefits, which are expected to reach $100 million. (See FERC Conditionally OKs MISO-PJM Targeted Project Plan.)
Three top generators in Maine have asked the state’s Public Utilities Commission to allow them to intervene late as full parties in the proceeding on New England Clean Energy Connect (NECEC), the 1,200-MW HVDC transmission line proposed by Central Maine Power (CMP) and Hydro-Quebec.
The 145-mile project before the PUC (2017-00232) would deliver Canadian hydropower from Quebec to Lewiston, Maine, at an estimated cost of $950 million. CMP is a subsidiary of Avangrid.
Lewiston substation | Central Maine Power
Massachusetts last month selected NECEC as the alternative for the state’s 9.45-TWh clean energy solicitation after the New Hampshire Site Evaluation Committee (SEC) unanimously rejected Eversource Energy and Hydro-Quebec’s Northern Pass, the 1,090-MW transmission project that the Bay State had awarded the contract just a week earlier. (See Mass. Picks Avangrid Project as Northern Pass Backup.)
Survival Mode
Generators Calpine, Dynegy and Bucksport Generation, owners of one-third of the installed electric generating capacity in Maine, told the PUC that awarding a certificate of public convenience and necessity to NECEC would threaten their plants’ economic survival and harm the region’s competitive wholesale power market.
New England Clean Energy Connect (NECEC) shown in orange | Central Maine Power
The PUC plans to issue a decision on the proposal by September, a year after CMP filed, which is standard procedure. Maine Gov. Paul LePage and his Energy Office both wrote letters to the PUC urging it to review CMP’s petition in an “expeditious manner” and not delay or suspend the proceeding.
CMP on March 23 responded and said they did not object to the late‐filed intervention — if the PUC prohibits the intervenors from reopening phases of the case that have already closed.
The generators “seek to entirely reset the clock in this matter and introduce intervenor testimony in utter disregard of the fact that the commission and the parties are six months into a 12-month case schedule, the period for intervenor discovery on CMP’s initial petition has closed, and the deadline for intervenor testimony has passed, not once, but two times,” CMP said.
The generators argued that the developer presented reduced wholesale energy and capacity prices in the region and in Maine as the primary benefit of the project and made no case for reliability benefits.
However, CMP did just that in its September 2017 filing: “In addition to the electricity price suppression, [greenhouse gas] reductions and employment and economic development benefits discussed above, the NECEC transmission project will provide Maine resource adequacy and transmission system reliability benefits at no cost to Maine customers.”
CMP argued in its initial filing that “transmission upgrades to permit an additional 1,200 MW of generation to interconnect” ensures that NECEC’s power “will be deliverable to the New England Control Area. The addition of this non-natural gas-fired capacity (and related energy) will help ensure that ISO-NE has adequate generation resources available to meet load and reserve requirements throughout the year, including especially during periods when natural gas supplies are constrained.”
The intervening generators said “it is abundantly clear that the integration of large-scale, out-of-market (i.e., subsidized) resources within the current ISO-NE market may have profound unintended consequences, which is evidenced by the extensive and challenging stakeholder discussions during the [New England Power Pool’s Integrating Markets and Public Policy] debate and subsequent NEPOOL and FERC-related reviews of proposed capacity market reforms.” (See CASPR Filing Draws Stakeholder Support, Protests.)
Impeding Renewables
Massachusetts issued its MA 83D solicitation for hydro and Class I renewables (wind, solar or energy storage) last July. The selection committee for the clean energy request for proposals issued in July 2017 includes representatives from the state’s Department of Energy Resources and from distribution utilities Eversource, National Grid and Unitil.
Calpine owns and operates the 552 MW natural gas-fired Westbrook Energy Center power plant in Maine. | Calpine
Any contract awarded under the RFP must be negotiated by March 27 and submitted to the state’s Department of Public Utilities by April 25. The New Hampshire SEC voted March 12 to wait until its Northern Pass permit denial is published later this month before considering Eversource’s appeal of that decision, effectively killing the project’s chance to meet the Massachusetts deadline.
The New England generators told the Maine PUC that they “had good cause for delaying their intervention efforts” in that NECEC had been one of more than 40 bids competing to secure the Massachusetts contract and that “it would have been highly impractical for the [generators] to intervene in siting and/or certificate proceedings for every one.”
“At the time, it was widely believed that Eversource Energy, as a member of the state’s evaluation team, would favor its own affiliate’s project, Northern Pass Transmission in New Hampshire, as subsequently proved to be the case,” they said.
The generators also questioned the claim that NECEC will lead to lower prices.
“It is abundantly clear that [NECEC] has been proposed solely to meet a Massachusetts policy goal; it has nothing to do with meeting the needs of Maine ratepayers, and the primary long-term benefits of the project will accrue to Hydro-Quebec and CMP shareholders,” they said.
The generators further argued that, should the project go forward, “it will impede the development of alternative renewable energy projects in Maine, such as solar and onshore and offshore wind farms, for the foreseeable future. This result would be contrary to Maine’s statutory policy favoring the use of ‘renewable, efficient and indigenous resources.’”
The Conservation Law Foundation filed comments asking the PUC to wait until the Massachusetts RFP has been decided before considering the NECEC proposal.
The CLF argued that presumption of the project’s selection in the state RFP underlies CMP’s cost analysis. It also said CMP’s “calculations of benefits including greenhouse gas emission reductions, improvements in system reliability, reductions in electricity prices, and employment benefits … are premised on a baseline scenario in which there is no other project selected in the Mass. RFP.”
MISO is surveying how to get more information from load-serving entities to create a more detailed load forecast for transmission planning, though stakeholders continue to question the feasibility of the plan.
MISO Senior Policy Studies Planner Temujin Roach said the RTO wants to try “bottom-down” load forecasting, where it relies on data compiled from LSEs to form the basis of its load forecast that informs transmission buildout. For that, MISO’s 140-plus LSEs will have to annually assemble four different 20-year load forecasts to fit with each of the RTO’s four future scenarios developed for the Transmission Expansion Plan. (See MISO Looks to Align Load Forecasting, Tx Planning.)
The approach is one of two MISO is vetting to improve its load forecasts. If LSEs decide they cannot collect that level of information, the RTO will continue its practice of hiring a contractor to put together a load forecast. In that case, Roach said the level of specificity would not be as detailed, though the contractor would take any load information LSEs provide on a voluntary basis. MISO currently uses Purdue University’s State Utility Forecasting Group to create an independent load forecast; the forecast is not based on any of the MTEP future scenarios.
| Purdue University
MISO has a survey out until April 12 asking LSE owners how feasible it is to put such forecasts together and how much it may cost LSEs to assemble detailed load data.
“For some, it’s negligible so far, and for others, it may be a burden,” Roach said during a special March 21 conference call on improving MISO’s load forecast.
“What we’re looking for from load-serving entities is if this is information they already have, or if they’re willing to provide it,” Roach added.
Stakeholders asked what share of LSEs had to participate in the forecasting before MISO would pursue the new approach. Roach said he didn’t know.
“We’re looking for a feel of who has got problems with it and how feasible it is — most specifically it’s the small munis and co-ops that might not have the ability to forecast already in place. … We’d be willing to work with them and make this as painless as possible,” Roach said. “I don’t have an answer. It depends on who is struggling with it, and how big their loads are. We need more information to make … a prudent decision.”
Stakeholders Skeptical
Several stakeholders said they still weren’t convinced MISO had put enough thought into how it would align 140-plus disparate data sets into a cohesive load forecast.
Minnesota Public Utilities Commission staff member Hwikwon Ham said that LSEs don’t understand how MISO expects them to adapt their base-case loads to fit into the “limited fleet change,” “continued fleet change,” “accelerated fleet change” and “distributed and emerging technologies” MTEP futures.
Roach said MISO would most likely hold workshops and develop a Business Practices Manual to describe how to approach the data.
“I’d like to hitch onto [the] exasperation,” said WPPI Energy’s Steve Leovy. “I don’t know how to provide what MISO is asking, because I don’t think the data question is adequately specified. I don’t think multiple LSEs have the same idea about it.”
While MISO is under budget so far in 2018, the RTO’s financial staff is forecasting a slight overspend by year-end, members of the Audit and Finance Committee of the Board of Directors learned Wednesday.
In the first three months of 2018, MISO has spent $41.5 million of its $42.3 million year-to-date budget, under budget by 1.8%. Chief Financial Officer Melissa Brown said the savings were mostly related to belated start times of some of MISO’s planned investments.
“A lot of those just had slow starts this year,” Brown said during a committee conference call ahead of a March 29 board meeting in New Orleans, where numbers will again be presented.
However, Brown said MISO is forecasting spending $266.8 million by year-end, 0.7% more than its $264.9 million 2018 budget. The expected overspend is because MISO is reclassifying $1.6 million from its capital budget into one-time operating expenses. The reclassification will lower the RTO’s projected total capital expenses from $29.6 million to $28.1 million for the year.
| MISO
So far this year, MISO’s capital spending is trending lower, also owing to delayed project starts, Brown said. To date, the RTO has spent $6.1 million of its $7.3 million budget.
In addition to beginning work to replace MISO’s aging market platform with a new modular computer system, the 2018 capital budget includes maintaining its cybersecurity team, automating employee system access revocations, automating its settlements program, replacing software and hardware that fails throughout the year and renovating meeting space at the Carmel, Ind., headquarters.
Board Chairman Michael Curran asked in future meetings to see a separate financial report for MISO’s $130 million, seven-year effort to replace its market platform. (See MISO Makes Case for $130M Market Platform Upgrade.)
A wide range of stakeholders filed comments this week requesting clarification or rehearing of FERC’s Order 841 requiring RTOs and ISOs to revise their tariffs to allow energy storage resources full access to their markets (RM16-23).
While their concerns included specific cost and billing issues, most comments focused on the high-level interaction between federal and state oversight in energy markets and argued that the order had overstepped FERC’s authority. (See FERC Rules to Boost Storage Role in Markets.)
Implementation Issue
Subsidiaries of AES, including Indianapolis Power & Light, requested clarification that the order — which doesn’t require implementation for nearly two years — doesn’t supersede MISO’s compliance requirements in response to IPL’s 2016 complaint that its 20-MW battery was being denied market participation despite its capability. That implementation is already underway. (See MISO Rules Must Bend for Storage, Stakeholders Say.)
Invenergy’s 31.5 MW Grand Ridge Energy Storage project | Invenergy
Otherwise, AES requested a rehearing to determine ways “to help alleviate in the interim” the conditions Order 841 is supposed to correct. It argued that “the commission simultaneously predicated participation of … electric storage resources on dispatchability, which … completely fails to recognize the physical and operational characteristics of electric storage resources like” IPL’s, which “can provide their services automatically, without a need for direct interface with RTO/ISO dispatch software at all.”
FERC required RTOs/ISOs to submit compliance filings detailing how they will implement the order by Dec. 3, with implementation finished a year after they file. MISO asked for a six-month extension of the implementation deadline to accommodate distributed energy resource issues that are still pending.
“Granting the requested clarification, or rehearing, will help ensure that an RTO/ISO has sufficient flexibility to design and implement [a storage] market participation model that is technically and operationally feasible in each RTO/ISO’s specific context,” MISO said.
The RTO also asked for clarification about how the 100-kW minimum threshold for resource participation should be calculated, noting that giving grid operators flexibility in how they handle charging and discharging limits “can avoid unnecessarily limiting the range for clearing energy or reserve products.” It also requested the ability to phase in the number of very small resources that can participate each year “to avoid an unmanageable influx.” Grid operators should also be allowed to require storage resources to comply with rules necessary to address any reliability impacts that distribution utilities identify, MISO said.
Finally, the RTO requested confirmation that three potential bidding parameters are acceptable:
Requiring storage units to provide their state-of-charge forecasts at the beginning of identified market intervals, such as day-ahead, five-minute and real-time.
Requiring storage units that don’t provide minimum limits and can be moved smoothly between negative and positive to submit a single hourly ramp rate for the day-ahead market and “look-ahead commitment” process, or alternatively applying MISO’s real-time security-constrained economic dispatch practice if appropriate.
Requiring units that use their state-of-charge to lock output to a narrow range to be treated as self-scheduled price-takers that can’t set prices because they are potentially unable to fulfill capacity obligations, provide ramp products or perform ancillary services.
EEI’s Issues
The Edison Electric Institute requested clarification or rehearing on whether relevant electric retail regulatory authorities (RERRAs) would have the ability to opt in or out of allowing distribution-connected resources from participating in wholesale markets because their participation “has significant implications for the operation and reliability of the distribution system.”
EEI pressed FERC on how rates should be calculated, arguing that in situations where storage is paired with a retail load behind a single retail meter, the storage should either pay for any costs to separately measure the retail and wholesale loads or the entire load should be treated as retail. The institute said that storage must still be required to “pay any applicable charges covered under state jurisdictional tariffs in order to adequately reflect their use of state jurisdictional facilities.” It also disliked the 100-kW threshold, fearing that an “influx of smaller resources” could create administrative, reliability and cost issues.
DER Technical Conference
Finally, EEI said rules developed through the separate technical conference that FERC ordered on DER aggregation (RM18-9, AD18-10) should also apply to any storage resources covered by Order 841 “to ensure consistency.”
Several organizations representing public power filed a joint request asking for the same, adding that any RTO/ISO tariff revisions regarding Order 841 not become effective until after rules from the technical conference are developed.
RERRA Clarifications
Like many other commenters, the public power organizations — which include American Municipal Power, the American Public Power Association and the National Rural Electric Cooperative Association — also focused on state and local authority and requested FERC include an opt in/out mechanism for RERRAs.
“The commission should … unequivocally state that [its] regulations … do not authorize an [energy storage resource] to violate state or local laws or regulations or contract rights governing retail electric service or the local distribution of electric energy,” the organizations wrote.
Pacific Gas and Electric asked for clarification that “nothing in Order 841 is intended to suggest that the state no longer has jurisdiction to determine how power flowing from the distribution grid, through the customer meter and then into the storage resource located behind the customer meter is to be split between retail consumption and wholesale charging for later discharge into the wholesale markets.”
Sodium sulfur battery storage facility at Pacific Gas and Electric’s Vaca-Dixon substation. | California Energy Commission
The company warned that “if the commission were to conclude that the state no longer has this authority, then a retail customer could use its behind-the-retail-meter storage resource as a means to completely bypass retail rates for its onsite electricity consumption. The customer could simply claim that all electricity flowing through his/her retail meter went into the storage device for later discharge into the wholesale markets, even if the power were never returned to the wholesale market but instead used to meet on-site electricity demand.”
The Organization of MISO States reiterated the request to “clearly” acknowledge “applicable state and local laws, and applicable orders and rules” of RERRAs, disqualify resources that don’t comply with those rules and develop a process to confirm that compliance.
The National Association of Regulatory Utility Commissioners filed similar requests, warning FERC to “be careful that its actions do not inhibit or conflict with authority Congress specifically reserved to NARUC’s state commission members.” The association took issue with wording in the order that barred states from deciding whether distribution-level storage in their jurisdiction can participate in wholesale markets, which it said should be eliminated.
“FERC has exclusive jurisdiction over the wholesale markets and the rules that apply to resources participating in those markets, including how such resources participate,” the association said. “Nonetheless, Congress assigned states the task of determining whether resources located behind a retail meter or on the distribution system can, in the first instance, participate in wholesale markets.”
Xcel Energy Services, filing on behalf of its four utility affiliates in Minnesota, Wisconsin, Colorado and the Southwest, expressed concern about many of the same issues other stakeholders addressed, including: not providing states with an opt-out option; complications around separate metering for wholesale and retail activity; flexibility in developing an implementation schedule; allocation of integration costs for storage resources; and the inability to institute rules for storage to address reliability issues.
Market Exclusivity
The Transmission Access Policy Study Group (TAPS) noted the RERRA opt-out issue, but it also argued that FERC erred in rejecting the group’s proposal that storage resources be required to choose exclusive participation in either wholesale or retail markets.
“To avoid market manipulation, prohibited resales of energy purchased at retail and prohibited end-use consumption of energy purchased at wholesale, distributed storage resources [should] be required to make a binding choice to participate exclusively either in the wholesale markets or at retail,” TAPS said.
Grid Operator Responsibility
CAISO requested that FERC clarify several points about grid operators’ responsibilities, including that someone — although not grid operators — must directly meter storage resources, that grid operators can require storage resources to resolve retail double-billing issues with their retail energy provider as a condition of wholesale market participation, and that storage resources not incur transmission charges when they are dispatched to charge up because they’re performing a service.
Other Clarifications
Several organizations also sought separate clarifications of the order. PJM requested confirmation that the order “does not mandate a particular methodology” for accounting for “the physical and operational characteristics” of storage resources. The California Energy Storage Alliance requested clarity on “when and why transmission charges should apply to wholesale energy purchased for later resale in the same area” because potential “double-billing would be unduly and financially burdensome to the usage of energy storage and unreasonable in the application of the cost allocation and recovery for transmission charges.”
A CAISO official revealed Tuesday that a generation owner has approached the ISO about seeking a 2019 reliability-must-run contract, a development likely to sharpen an ongoing stakeholder debate about the out-of-market payments.
Keith Johnson, CAISO infrastructure and regulatory policy manager, acknowledged the generator’s request in response to a series of questions during an hourslong stakeholder meeting that at times became slightly charged as market participants delved deeply into the ISO’s backstop energy procurement policies.
Generation owners typically inquire about an RMR when they are considering shutting down a unit and want to know if it might be eligible to receive one of the increasing number of contracts the grid operator has been inking in recent years to keep gas-fired plants available for reliability reasons.
Stakeholders have questioned whether retirement notifications and subsequent discussions between generation owners and CAISO should remain confidential or be announced immediately. In response, the ISO is working on rule changes that would allow it to provide the public early notification of unit retirements under different scenarios.
The notification changes are included in “Phase 1” of a broader set of RMR and capacity procurement mechanism (CPM) changes that CAISO is developing. Another primary component of the program is a must-offer requirement for RMR units that will “look, feel and act more like resource adequacy,” Johnson said.
| CAISO
The ISO on March 13 issued its draft final proposal for Phase 1, with the goal of getting approval from the Board of Governors in May, in place for fall contracting for the 2019 operating year. Comments are due April 10 on the proposed rule changes, a topic of a similarly pointed stakeholder session last month. (See CAISO, Stakeholders Debate RMR Revisions.)
CAISO has received plenty of feedback about including more RMR/CPM reforms in Phase 1, but Johnson told stakeholders Tuesday that “we are avoiding shoehorning stuff in there that can’t be adequately vetted with you.”
More comprehensive RMR/CPM refinements are being considered for a later Phase 2, CAISO said in a presentation during the meeting. Thirteen items are up for discussion for the second phase, including more clarification regarding the differences between RMR and CPM, and whether the two programs can be merged into one procurement tool.
Additionally, CAISO had already developed and submitted a package of RMR changes to FERC, which it said it expects to be approved on April 12.
RMR critics — which include the California Public Utilities Commission — say the growing need for the contracts points to market deficiencies that call for broader reforms across the market. The commission replaced a previous set of CAISO-approved RMRs with energy storage. (See CPUC Retires Diablo Canyon, Replaces Calpine RMRs.)
NRG Energy subsidiary GenOn recently notified the commission that it plans to retire three gas-fired plants by early next year, possibly setting them up for RMRs. (See NRG Set to Retire California Gas Plants.)
Citing FERC’s concerns over supplemental transmission projects, Kentucky regulators have rejected upgrades to two substations, ruling that Kentucky Power failed to prove they were needed.
The Kentucky Public Service Commission released an order on March 16 granting a certificate of public convenience and necessity (CPCN) to Kentucky Power for a baseline project to rebuild a 161-kV line between its Hazard and Wooton substations but denied a CPCN for a more expensive supplemental project to make upgrades at the substations. Kentucky Power, a subsidiary of American Electric Power, estimated the baseline project to cost $20 million and the supplemental project another $24 million.
| PJM
Baseline projects are administered by PJM to address violations of publicly available reliability criteria, while supplemental projects are developed internally by transmission owners and are not driven by RTO criteria. Supplementals are included with baseline projects in PJM’s Regional Transmission Expansion Plan to allow staff to identify possible reliability or operational performance issues, but they are not subject to staff oversight or approval. For years, several organizations representing demand-side interests have been clashing with TOs over the projects, arguing that TOs are incentivized by their formula rates to build as much as possible and that regulators’ oversight is not adequate to corral the impulse. Spending on supplementals has been on the rise, and critics believe TOs see them as an unsubstantiated way to build more. (See PJM TOs, Customers Await Ruling on Supplemental Projects.)
The PSC was unpersuaded by Kentucky Power’s contention that the supplemental made sense because engineering and construction resources would already be focused in that area. “This may speak to efficiency but not to necessity,” the commission said, noting that consideration of the projects happened through a PJM stakeholder process that FERC has since determined requires revision.
FERC ruled in February, following a 2015 technical conference and subsequent show-cause order in 2016, that TOs’ processes for receiving “meaningful input” from stakeholders on supplemental projects need additional structure to comply with Order 890 (EL16-71). TOs, through PJM, have subsequently submitted a proposed timeline for project consideration, but opponents have challenged the order as not sufficient. (See Group Contests ‘Supplementals’ Ruling as PJM, TOs Advance.)
FERC this week rejected a proposed power and gas tariff filed by the North American Energy Markets Association (NAEMA) and indicated it is likely to revoke the group’s capacity and energy tariff, which the commission accepted in 2003. The group said Thursday night it will seek an emergency stay to give it time to amend the older agreement.
NAEMA, which claims about 150 members that have 500,000 MW of generating capacity and serve more than 100 million electric and gas customers, developed the power and gas tariff with the International Energy Credit Association.
The group said the tariff, filed in January, was similar to the 2003 tariff but was updated to reflect current industry preferences for contract language and products. It intended to leave the existing tariff in place with the new one available for companies that choose to use it.
But the commission said March 19 that the tariffs should not be on file with it because NAEMA is not a jurisdictional public utility (ER18-676). “Nor does the power and gas tariff filed by NAEMA set forth any rates and charges or terms and conditions that govern the transmission or sale of electric energy. Instead, the power and gas tariff merely contains standard form bilateral sales contracts with a set of standard terms and conditions that NAEMA members may choose to use when they make sales of their own capacity and energy or natural gas to customers.”
The commission said NAEMA members that are public utilities should enter separate, standalone bilateral agreements under their own market-based rate tariffs whether or not they comport with NAEMA’s standard terms and conditions. Such transactions should be included in the utility’s Electric Quarterly Reports, FERC said.
“We make no findings about [the proposed tariff’s] specific terms and conditions or whether NAEMA members should or should not use it as a template for any market-based rate bilateral sales agreements,” the commission said.
Show Cause
FERC also directed NAEMA to show within 30 days why the 2003 tariff, which was approved by a letter order by a division director, should remain on file with the commission (ER04-22). “If such a filing is not received within the required time, NAEMA’s capacity and energy tariff will be canceled in the commission’s eTariff system,” it said. The commission did not say why it now considered the 2003 order — which NAEMA says was updated as recently as 2011 — an apparent error.
NAEMA was created in 2003 as a successor to the Power and Energy Market (PEM) of the Mid-Continent Area Power Pool (MAPP) after the group expanded. NAEMA said the 2003 tariff was a successor to one approved by FERC in 2001 for MAPP (ER01-3045) and has been updated five times since then.
NAEMA Executive Director Mike Critchley | ZEMA
Emergency Stay Sought
NAEMA attorney K.C. Hairston told RTO Insider Thursday evening that the organization will file an emergency motion seeking a stay of the show cause order to allow it to propose an amendment to the energy and capacity tariff that it said should address the commission’s jurisdictional concerns. The motion was filed early Friday.
The amendment would be a cost-based schedule, which NAEMA says will ensure the tariff falls “within the categories of agreements described by the commission in the show cause order where non-jurisdictional entities can submit tariffs on behalf of jurisdictional companies.”
The group pledged to submit the proposed amendment within 60 days.
Overwhelmingly Surprised
In the motion, NAEMA says it was “overwhelmingly surprised” by the order, claiming it contacted the commission’s Office of General Counsel regarding the jurisdiction issue and incorporated changes it suggested. The group said it realizes that OGC does not speak for the commission but “assumed that the commission would take a consistent view” with the office.
NAEMA said it had cause for the stay because “Terminating a tariff that has been repeatedly approved by the commission for over a decade and is currently used by market participants across the United States will be disruptive to the energy markets the commission regulates.”
The group also made an unusual request, saying “it will be beneficial to have a designated non-decisional commission staff member that it can consult with should issues arise” in drafting the amendment.
NAEMA, which holds regular conferences, says its goal is to “promote and facilitate a vibrant physical and financial energy marketplace” through “contacts and contracts.” Its board members include staff from ACES Power Marketing, AEP Energy Partners, EDF Renewable Energy, MidAmerican Energy, Southern Power, The Energy Authority, TransAlta Energy Marketing, WPPI Energy and Xcel Energy.
The fight between PJM transmission owners (TOs) and customers over supplemental projects isn’t over yet, despite a FERC order approving the RTO’s plan.
Both sides made filings at FERC this week in the docket determining how oversight of the local, TO-driven projects is handled (ER17-179).
PJM and its TOs said in a compliance filing Monday that they are willing to revise their original proposal to provide stakeholders more time to examine the reasons why a TO decides to pursue a supplemental project, but the RTO said many other deadlines can’t be adjusted because they must fit within the timing of its current processes. (See PJM, TOs Propose FERC Order 890 Compliance Plan.) The projects include transmission expansions or enhancements not required for compliance with regional or national reliability, operational performance, or economic criteria.
A coalition of customers calling themselves “the load group” requested rehearing of the order, arguing that it still doesn’t hold TOs accountable for their obligations under FERC Order 890. They took issue with FERC’s approval of TO-proposed language to delineate the supplemental planning process and move it from the PJM Operating Agreement (OA) — which requires a super-majority endorsement from PJM stakeholders to make changes — to a new Attachment M-3 of the Tariff. The TOs have exclusive filing rights under Section 205 of the Federal Power Act to make changes to the Tariff; other stakeholders would need the PJM Board of Managers to file a complaint under Section 206. (See FERC Orders New Rules for Supplemental Tx Projects in PJM.)
Additionally, PJM’s Independent Market Monitor (IMM) has asked to intervene in the docket, wading into a clash the IMM has largely stayed out of since it was touched off with a 2015 technical conference and subsequent FERC show-cause order in 2016 (EL16-71).
Compliance Filing
PJM submitted proposed Tariff and OA revisions to address FERC’s determination that the TOs were failing to provide stakeholders with adequate notification, information, and opportunities to engage in discussions over supplementals. While PJM includes the projects in its Regional Transmission Expansion Plan (RTEP) to allow staff to identify possible reliability or operational performance issues, they are not subject to staff oversight or approval.
TOs had proposed there be a minimum of 25 days between meetings covering the three parts of project planning: assumptions, needs, and solutions. They also offered to post information to be discussed at that meeting 10 days ahead of time and allow 10 days after meetings to receive comments. Finally, they proposed a 10-day waiting period to consider written comments before incorporating their local transmission plans into the RTEP.
In response to stakeholder feedback, PJM and the TOs agreed to extend to 20 days the period before the initial assumptions meeting.
“While the [TOs] are sensitive to the desire of some stakeholders for additional time between meetings and for more time to review the materials presented for discussion at the meetings, they determined that, in most cases, longer minimum time periods would compromise their ability to coordinate the supplemental project planning process with PJM’s planning of baseline projects [that address regional or national criteria violations] for inclusion in the [Regional Transmission Expansion Plan],” the filing said. “PJM apprised the [TOs] that minimum periods between supplemental project planning meetings of more than 28 days would have the potential to cause problems by preventing effective coordination with meetings of the PJM Transmission Expansion Advisory Committee.”
TOs said the deadline for feedback on a project’s first meeting about assumptions can be pushed back “without impeding the subsequent steps in the process.”
Rehearing Request
The load group’s request argues that Attachment M-3 doesn’t resolve Order 890 issues in the first place and that it’s inappropriate for PJM to add the attachment to the Tariff rather than the OA. It also took issue with the commission not requiring TOs to provide more information to stakeholders, such as the models and data necessary to replicate the analyses identifying the need for supplemental projects. FERC also should have subjected supplementals to the same obligation-to-build, milestone requirements and PJM impact analyses as RTEP baseline projects, the group said.
The group criticized FERC for what they said was allowing TOs “to disregard their obligation to respond to comments from stakeholders.”
“The commission is not free to ignore problems with a section 205 filing that a party identifies simply because that party proposed an alternative to particular filed terms and conditions,” the group wrote. “But that is precisely what the commission did in the order. … Given the PJM TOs’ track record in failing to meet their obligations under Order 890, the PJM TOs should be required to respond to stakeholder comments. Otherwise, stakeholders will have no way of knowing whether the TOs have honored their obligation to consider these comments. … The commission should ensure that any such process is robust and offers stakeholders recourse if their comments are ignored.”
The group includes American Municipal Power, Old Dominion Electric Cooperative, the Delaware Division of the Public Advocate, the PJM Industrial Customer Coalition, the Illinois Citizens Utility Board, the Office of the People’s Counsel for the District of Columbia, and the Public Power Association of New Jersey.
The D.C. Circuit Court of Appeals on Tuesday denied several petitions for review of final EPA action on steps to cut pollution from electric power plants in order to restore to “natural conditions” the air quality and visibility in “Class I” national parks and wilderness areas.
EPA, under the 2012 Clean Air Act, issued its Regional Haze Rule, which revised its guidelines on Best Available Retrofit Technology (BART) for stationary pollution sources, usually power plants, installed before August 1977. The new rule also specified that the agency’s 2011 Cross-State Air Pollution Rule (CSAPR) had requirements stringent and effective enough for it to serve as a better-than-BART alternative for states participating in CSAPR, thus excusing states from compliance with BART itself.
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EPA also disapproved portions of certain State Implementation Plans (SIPs), designed to achieve reasonable progress under the Regional Haze Rule because those plans relied on a soon-to-be-defunct predecessor of CSAPR, the Clean Air Interstate Rule (CAIR).
The National Parks Conservation Association and the Sierra Club challenged allowing states to treat CSAPR compliance as a better-than-BART alternative.
Multiple power companies and the Utility Air Regulatory Group, as well as the State of Texas and the Louisiana Department of Environmental Quality, challenged EPA’s disapproval of SIPs relying on CAIR as a better-than-BART alternative.
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“Except to the extent that the challenges are moot, we affirm EPA’s actions,” said the March 20 opinion by D.C. Circuit Court of Appeals Senior Circuit Judge Stephen F. Williams.
The three-judge panel consisted of Thomas B. Griffith and Cornelia T.L. Pillard, circuit judges, and Senior Circuit Judge Williams.
Useful Life
Dealing with the conservationists’ petition first, the opinion said that “the attack on EPA’s use of presumptive BART … is jurisdictionally foreclosed by the 60-day filing window provided by the Clean Air Act.”
Furthermore, Judge Williams described “a cavalcade of attacks on alleged modelling errors,” wherein “the conservation petitioners fix on a comment that EPA failed to address in its response to comments, specifically an assertion that EPA’s model does not take into account the remaining ‘useful life’ of specific BART-eligible sources.”
The agency did not contest that it overlooked these comments.
“It argues now — reasonably, in our view — that the effects of a plant’s useful life are too speculative to model, and not significant enough to make any modeling a useful enterprise,” said the opinion. “We see no need to remand on this point for EPA to move this bit of post-hoc rationalization into a rulemaking record.”
The conservation petitioners finally argued that, in comparing CSAPR and BART, EPA compared the wrong averages.
The court disagreed, referring to its reasoning in an earlier petition from the Utility Air Regulatory Group.
“It is in the nature of averages that some particular sites may underperform while others overperform,” said the decision. “EPA’s rule requires aggregate average improvement, and its comparison of the CSAPR-region Class I areas as well as all Class I areas nationwide was reasonable.”
State and Industry
The state and industry petitioners in essence argued that if compliance with CAIR had for years allowed them to achieve greater reasonable progress than BART would have, their continued enforcement of emissions standards in line with the now-defunct CAIR must necessarily be found an adequate alternative to BART.
“But, of course, without CAIR — which all parties agree is dead and beyond revival — there is no legal basis for a requirement that states control their sources at CAIR levels; indeed, for states that are not part of CSAPR, there is no legal basis for requiring states to participate in any haze-related interstate trading program,” said the court.
The court cannot order EPA to consider CAIR an alternative to BART without resurrecting CAIR itself, “a rule that we have already stricken and ordered to be vacated,” said the decision.
The petitioners saved themselves from mootness only by couching their request for relief as “a contingency,” said the opinion. The court denied the state and industry petitioners, saying they “can afford no relief.”
