Page 1387 – RTO Insider

June 19, 2016

ERCOT Board OKs Rio Grande Valley Fixes

By Tom Kleckner

ERCOT’s Board of Directors last week unanimously approved two transmission projects intended to ease congestion and reliability concerns in South Texas, where proposed LNG plants are expected to increase the region’s load.

The Regional Planning Group’s Valley Import Project will add a static VAR compensator at two 138-kV substations, at an estimated cost of $91 million. The Hidalgo-Starr Project will result in two new 345-kV lines, a 345-kV double-circuit line, two 345/138-kV transformers and various other improvements in the North McAllen-Edinburg region. The project is estimated to cost $51.5 million.

Both projects are projected to go into service as early as 2019.

Two LNG plants have already been approved for Corpus Christi and Brazoria, south of Houston. Another eight plants have been proposed, including six — an additional 2,400 MW of load — for the Port of Brownsville on the Mexican border.

ERCOT said further improvements may be needed to meet the Rio Grande Valley’s load in 2023, but the compensators will buy time until a long-term solution addresses the challenge.

“The issue we face is a limited amount of generation in the Valley,” Warren Lasher, ERCOT’s director of system planning, told the board June 14. “This is a situation where if we could get generation to site in the Valley region, it would significantly increase reliability in the region and preclude the need to build more transmission. … If [the two projects] get built, we would not need additional transmission into the Valley.”

Lasher said two large combined cycle gas plants have signed generation interconnection agreements, but neither were included in the planning models as they have not yet been “collateralized.” Staff did conduct a sensitivity analysis that assumed 780 MW of new generation and 700 MW of LNG load; it showed reliability criteria could be met without additional import facilities.

Board member Judy Walsh, a former Texas commissioner and MISO’s board chair, wondered aloud whether building additional generation might be a cheaper alternative.

“It looks like chicken and eggs to me,” she said. “Without a [financial] product to incent generation, it makes it less likely generators will build.”

“If the board approves this, if the SVCs are installed, would that discourage new generation?” asked Public Utility of Texas Commissioner Ken Anderson, who also suggested eliminating mitigation schemes and letting prices rise.

Lasher said congestion pricing would influence future decisions about generation, but the SVCs could also play a role by changing the voltage-stability limits in the Valley.

“The SVCs will not be competing with the generation units. They will be changing the voltage-stability limits in the Valley, and may actually support the ability for thermal-based congestion to create a little more pricing incentive.”

Anderson also asked whether eliminating mitigation schemes in the Valley and letting prices rise would lead to the construction of more generation.

“The challenge in the Valley is that it doesn’t affect just the Valley,” pointed out Potomac Economics’ Beth Garza, director of ERCOT’s Independent Market Monitoring Unit. “It affects all the prices in the South load zone.”

Two transmission projects went into service in the region during the last two months, easing some of the congestion issues. However, the 524-MW Frontera combined cycle plant will disconnect from ERCOT during the third quarter and begin dispatching into the Mexican market. The plant is owned by Viva Alamo, a subsidiary of The Blackstone Group. [An earlier version of this story incorrectly identified the owner as Direct Energy, which sold the plant to Viva Alamo in January 2014.]

“One thing in favor of strengthening transmission … is that it’s pro market,” said unaffiliated board member Peter Cramton. “It allows a larger set of generators to compete in a more robust marketplace. You don’t always want to throw money at transmission, but at same time, you have to recognize it’s transmission that’s enabling the market.”

American Electric Power, which owns the two substations that will be upgraded and proposed both projects last year, will handle the construction. Sharyland Utilities and CPS Energy also submitted a proposal for the Valley Import Project.

June 17, 2016

NY Senate Energy Head: Begin Nuclear Subsidy Immediately

By William Opalka

The chairman of the New York State Senate energy committee called on the Public Service Commission Wednesday to immediately implement the nuclear subsidy in the proposed Clean Energy Standard before the entire proposal is finalized.

The move came a day after Exelon said it would close its 620-MW Nine Mile Point Unit 1 nuclear facility early next year if the state doesn’t complete regulations and have a signed contract with the generator by the end of September. (See Exelon Threatens to Close Nine Mile Point 1.)

“There is one thing everyone agrees on, and that’s the pressing need to make sure that our nuclear fleet does not retire prematurely due to current economic conditions in the energy sector,” said Republican Joseph Griffo, chairman of the Senate Energy and Telecommunications Committee.

ny senate, nine mile point, nuclear subsidy — Griffo *Source: NY Senate*

The “Tier 3” of the CES is a special payment for nuclear generating stations that credits them for zero carbon emissions. Other tiers of the CES create incentives for wind, solar and other renewable resources.

“There are many opinions about how best to go forward with the broader Clean Energy Standard and, in particular, how to do so in the most cost-effective way for consumers,” Griffo said. “We need to slow down and evaluate the full CES more carefully in order to reach our goals while protecting ratepayers.”

The PSC on Thursday reiterated that the CES would be completed this summer. (See Stakeholders Debate New York Clean Energy Standard.)

“The department fully understands the difficulties facing the upstate nuclear fleet, which is why we have been working for the past six months to create a plan that will ensure the future viability of these emission-free resources and continue New York’s progress in reducing greenhouse gas emissions,” it said in a statement.

Griffo was joined in his statement by several state legislators from districts that include or are near to the upstate nuclear fleet on Lake Ontario. The other plants are Exelon’s Nine Mile Point Unit 2 and R.E. Ginna station near Rochester and Entergy’s James A. FitzPatrick plant. Entergy has said it will close FitzPatrick, and Gov. Andrew Cuomo has excluded its Indian Point facility near New York City from eligibility for the CES.

exelon corp., nine mile point, ny senate, nuclear subsidy — Nine Mile Point *Source: Constellation Energy Group*

Separately, the Oswego County Industrial Development Agency issued its own statement advocating quick action.

“Nine Mile Point 1, and the thousands of families and jobs it supports, as well as the surrounding community, and our state, needs regulators to implement the CES as soon as possible. We are very close to the finish line in this regulatory process, and the news that the plant could shut down without the CES is a reminder that the state’s economic and environmental future is now at stake,” CEO L. Michael Treadwell said.

June 15, 2016

Dynegy Buying out Energy Capital’s Stake in ENGIE Deal

By Ted Caddell

Dynegy will pay $750 million to buy out Energy Capital Partners’ 35% stake in their joint venture to purchase 17 fossil fuel plants in the U.S. owned by French utility ENGIE.

The companies announced the $3.3 billion venture, Atlas Power, in February. At the time, Dynegy said it was going to buy out Energy Capital’s stake in five years. (See Dynegy, Energy Capital to Buy 8.7 GW in $3.3B Deal.)

But Dynegy CEO Robert Flexon said Wednesday that the company decided to accelerate the purchase to take advantage of lower debt prices and more quickly integrate the generation assets into its fleet.

“The significant improvement in the financial markets since announcing the transaction in February provided an excellent opportunity for us to approach ECP about an earlier timetable,” Flexon said in a statement. “This transaction accelerates our company’s transformation, enabling us to increase our presence further in the most desirable markets with high quality assets.”

By buying out Energy Capital’s share early, Dynegy is paying $184 million less than the terms stated at the outset of the agreement. It will also save $40 million a year in interest.

When completed, the deal will give Dynegy an additional 9 GW of generation, slightly more than the initial 8.7 GW announced after updating for winter capacity. Ninety percent of the plants are natural gas-fired, in line with Dynegy’s quest to shift away from coal-fired generation. Flexon had said the company wanted to take on the ENGIE fleet on its own, but because it was committed to other acquisitions at the time, including $6.5 billion in two acquisitions of 19 plants from Duke Energy and Energy Capital, it needed to take on a partner.

Dynegy said it expects to close the ENGIE deal by the end of the year, after which the company will have a total of about 34.7 GW of generation, 71% of that gas-fired and 29% coal.

June 14, 2016

Exelon Threatens to Close Nine Mile Point 1

By William Opalka

Exelon told New York regulators on Tuesday that it will close its Nine Mile Point Unit 1 nuclear plant next spring if the state has not guaranteed it a financial lifeline by September (16-E-0270).

The company announced its plans in a filing with the New York Public Service Commission in response to requests from commercial and industrial customers for more time to comment on an Exelon proposal for cost-based compensation for its nuclear plants. That proceeding is running concurrent with one on New York’s proposed Clean Energy Standard that includes a mechanism to compensate nuclear plants through zero emissions credits. (See New York Would Require Nuclear Power Mandate, Subsidy.)

exelon corp., nine mile point — Nine Mile Point *Source: Constellation Energy Group*

Exelon supported the request to extend the comment deadline until July 15, after a June 24 PSC technical conference at which the company’s proposal will be considered. Exelon also wants a pricing formula determined by the PSC by Aug. 1.

The company has previously said that it would need financial support to keep its single-unit, 581-MW R.E. Ginna plant operating after a reliability support services agreement with Avangrid’s Rochester Gas & Electric expires next March.

In a filing in May, in which it proposed the compensation plan, Exelon also said it must “make immediate decisions” regarding the nuclear plants’ continued operation. But the Tuesday filing is the first time the company said it would not refuel Nine Mile Point in March.

Exelon told the PSC its Constellation Energy Nuclear Group could not count on a CES that is “merely speculative.”

“In order for CENG to make the investment and commitment necessary to keep Nine Mile Unit 1 and Ginna in operation, it needs the certainty provided by a commission order approving the CES and a signed contract procuring zero emission credits from the nuclear generators,” Exelon wrote. “CENG cannot simply roll the dice and make substantial investments on the hope that the program ultimately adopted by the commission is sufficient to justify the substantial investments and commitments required to enable continued operation of CENG’s upstate nuclear plants. Thus, CENG will need a contract in hand by September 2016. Time is of the essence.”

Exelon said refueling the unit would cost approximately $55 million, and while the process normally takes nine months to a year, it believes it can be compressed into six months.

The company just finished refueling Unit 2 at the plant. The two units, located on the shores of Lake Ontario, north of Syracuse, generate a combined 1,900 MW.

Nine Mile Point, Ginna and Entergy’s James A. FitzPatrick plant represent the entire upstate nuclear fleet that Gov. Andrew Cuomo wants to save to help the state meet its low-carbon emissions goals. Cuomo wants to exclude Entergy’s Indian Point plant, which he wants closed because of its proximity to New York City.

Under the CES, the zero emissions credits would provide extra compensation, similar to the way in which renewable energy projects receive additional payments for their clean energy attributes.

Entergy previously said it would close FitzPatrick and has not been swayed by the offer of a subsidy. (See New Lifeline for FitzPatrick Nuclear Plant.)

June 13, 2016

SPP Z2 Project Faces Further Hurdles, Possible Delay

By Tom Kleckner

SPP’s “year of focus” on the eight-year-old Z2 crediting project may now stretch into 2017 after the Board of Directors on Monday sided with stakeholders and delayed a vote on waiver requests that would allow the work to stay on schedule.

SPP staff last week asked the Markets and Operations Policy Committee, the Regional State Committee and the Cost Allocation Working Group to reject requests by six transmission customers for waivers that would reduce their bills under the project. All three committees tabled or took no action on the requests, despite staff warnings that the failure to act could push the project into next year.

On Monday, the board followed suit, deferring action during a special one-hour conference call with the Members Committee. The MOPC will try to resolve stakeholder concerns over staff’s reading of the RTO’s Tariff, waiver eligibility and invoice amounts during its July 12-13 quarterly meeting.

‘Full and Proper Vetting’ Needed

“I fully understand SPP’s desire to move forward and get the baseline established to do that,” said Les Evans, COO for Kansas Electric Power Cooperative, whose company is facing a $6 million bill. “We believe we need to have a face-to-face so everyone can have a full and proper vetting of the issues.”

“I listened to the MOPC call … a number of points were raised that I wholeheartedly agree with,” SPP Director Phyllis Bernard said. “I think [the vote] was premature. I think [the discussion] needs to be face-to-face. My concern is if the board [was] to take a vote today, we [would be] affirming something that isn’t particularly clear and that’s hotly disputed.”

Attachment Z2 of the Tariff details how entities that fund network upgrades can receive reimbursements through transmission service requests that could not have been honored “but for” the upgrade. But a series of problems have prevented SPP from doing a proper accounting to determine which companies owe money and which are due to receive it.

In January, the Z2 project team set a Nov. 4 date for the project’s completion. CEO Nick Brown told members that same month the project would be his organization’s focus this year. (See “Brown: Finishing Z2 Crediting Project RTO’s Top Priority,” SPP Board of Directors/Members Committee Briefs.)

$99 Million in Waiver Requests

Staff asked the three committees last week to recommend approving a different set of waivers allowing four point-to-point transmission customers to reduce their Z2 obligations. All three committees endorsed the recommendation — as did the board Monday — meaning that $56.4 million in payments due from American Electric Power, Arkansas Electric Cooperative Corp., the Northeast Texas Electric Cooperative and the Oklahoma Municipal Power Authority (OMPA) will now be allocated to the base plan and included in regional and zonal charges under SPP’s Tariff rather than being directly assigned to the companies, who were designated as “Group A.”

Staff also asked stakeholders to reject an additional $42.8 million in “Group B” waiver requests from AEP, OMPA and four additional transmission customers that SPP said don’t qualify for waivers. But Steve Purdy, SPP’s manager of generation interconnections, told the RSC an error had incorrectly included OMPA’s waiver request in Group B and said that further requests in the group may also be “waivable.”

Because the MOPC had tabled the Group B recommendation earlier in the week, the RSC voted unanimously to delay its decision until it meets July 18. The CAWG also agreed not to vote on the Group B recommendation and will discuss those waivers at its next meeting July 6.

Why Go Ahead with a Vote?

“If we know there are issues out there, why are we going ahead with a vote?” asked Oklahoma Corporation Commission Vice Chairman Dana Murphy on June 10. “This process has been going on for eight years, and the first presentation made to us was a few months ago. If we’ve waited eight years, I don’t think a few months will cost us.”

SPP COO Carl Monroe said approving both staff recommendations would allow the RTO to continue the historical calculation of transmission credits owed and due. He said two months of work has already gone into determining who owes what and how much, work that might have to be redone if further waivers are granted.

Staff said Monday it still plans to publish the final numbers, the source of much stakeholder consternation, in September. The first invoices will be due in November.

“Part of the calculations depend on knowing the … base-plan funding rates going forward,” Monroe said. “With no action taken on this, the best we can assume is Group A is the only one waived. If that changes in the next few months, that backs us up.”

“I don’t know that July 18 affects us that much, given the eight years it’s taken to get here,” Murphy said.

Donna Nelson, chair of the Public Utility Commission of Texas, joined Murphy in resisting the Group B recommendation. She said the situation facing the RSC was “systemic” of the larger problem facing the committee.

“Eleven years is a long time,” said Nelson, counting from 2005, when SPP created the aggregate transmission service study process that resulted in Attachment Z. “We need to have the option of doing what we think is right and not be blamed for delaying something that’s been delayed forever.”

Not Assigning Blame

Monroe said staff is not attempting to assign blame. “The intent is to continue the process,” he said.

During an open meeting of the Texas PUC on Thursday, Nelson updated her fellow commissioners on the Z2 billings. Commissioner Brandy Marty Marquez said she found the amount of money involved “shocking.”

“I can understand the concerns being raised,” Marquez said. “We are going to be concerned about the impact to ratepayers.”

SPP staff divided the waiver applicants into two groups after spending several months calculating credit payments due from long-term reservations for transmission service and determining whether the credits should be base-plan funded or directly assigned to individual transmission customers. Staff sent reports on April 28 to all customers with directly assigned upgrade costs, giving them an opportunity to ask for waivers.

The board in April approved a level payment plan in which each entity with a net payable will be given the option to pay the entire amount at once or in equal installments every three months. Payments were to begin in November, with the final installment due in August 2017. (See “Board Approves Z2 Level Payment Plan,” SPP Board of Directors Briefs.)

SPP has scheduled a two-day review session for the Z2 credit-settlement system June 28-29 at its Little Rock headquarters. The session will run 9 a.m. to 4:30 p.m. each day.

June 13, 2016

MISO: Auction Design July Filing Doubtful

By Amanda Durish Cook

MISO is unlikely to meet a July 15 target for filing its proposed competitive retail solution (CRS) with FERC, raising doubts that changes can be implemented in time for the 2017/18 planning year.

Jeff Bladen, MISO executive director of market services, said the timeline has been placed on hold while the RTO and its Independent Market Monitor attempt to strike a compromise.

Bladen announced the delay during a Monday conference call of the Resource Adequacy Subcommittee (RASC), where the RTO had intended to review draft Tariff language. “Given the ongoing work with the Market Monitor on alternative approaches … we did not post draft Tariff language,” Bladen said.

He said MISO will continue to work with the Monitor until a “hybrid” version of the competitive retail solution emerges. MISO’s Board of Directors ordered staff and Potomac Economics into negotiations late last month. (See Board Orders Negotiation in Auction Disagreement.)

Pressed by stakeholders, Bladen said a July filing is becoming “less likely.”

Audrey Penner, market access and regulatory affairs officer at Manitoba Hydro, asked when MISO would have to file in order to implement changes in time for next year’s capacity auction.

MISO RASC liaison Renuka Chatterjee said a filing targeting 2017/18 implementation could be submitted as late as September. But she added, “We feel the further we get away from July, the less likely a 2017/18 implementation is.”

Dynegy’s Mark Volpe said “a 2017/18 implementation is paramount to Dynegy” and asked that August be used to vet the hybrid resolution.

Auction Redesign Timeline MISO - auction design — MISO’s auction design timeline, released earlier this month, will be reworked to include later draft Tariff language release and filing dates. The March launch of the competitive retail solution is also in question.

Seeking Common Ground

While both MISO and the Monitor want unique auction treatment and use of a sloped demand curve for competitive retail areas such as Southern and Central Illinois, the two differ on other key elements:

The Monitor maintains the entire footprint can be kept on a prompt auction schedule and says MISO’s proposed three-year forward auction will create doubt in generators wanting to suspend or retire.
The Monitor wants all planning needs represented with a sloped demand curve; MISO wants to use the sloped curve only in competitive retail areas.

“What we’ve been talking about is a prompt hybrid and a forward hybrid, and at some point we’re going to have to choose which one to present to FERC,” Potomac’s Michael Chiasson said.

“While I can speak to what has been proposed, I can’t talk about what a final proposal would look like,” Bladen said. “We simply don’t have one today.”

Whatever hybrid resolution results, Bladen said there is “no chance” MISO will support a forward auction for the entire footprint.

Bladen said he hoped to have an outline of a hybrid proposal by the RASC’s next meeting, June 29-30.

Ameren, Dynegy, Industrials Weigh In

Both Ameren Illinois and Dynegy say they prefer the Monitor’s proposal over MISO’s. In comments submitted to the RTO last week, Ameren repeated its call for a single Planning Resource Auction with the addition of a sloped demand curve for deregulated areas.

“Our position at this time continues to be opposition to the MISO proposal in favor of the concepts put forth by the IMM. … Our support of the IMM proposal is conditioned on reviewing more detailed information in the future, including any proposed tariff language and/or changing dynamics in Illinois,” the company said.

Dynegy says MISO’s proposal does not address minimum offer price rules or other means for mitigating buyer market power. “Dynegy would prefer MISO embrace the co-optimized prompt year-only CRS market design proposed by the IMM because we believe Dr. [David] Patton’s proposal lays out a viable foundation for efficient price formation,” the company said.

Illinois Industrial Energy Consumers repeated its earlier stance that the entire proposal is unwarranted: “IIEC continues to believe the MISO [proposal] is unnecessary for either Southern Illinois or the broader MISO footprint and would act to unduly subsidize generation resources at the expense of consumers even when the capacity market is not tight.”

Bladen called the feedback “helpful” but declined to address any specific points raised by the three entities. “Having that kind of well-thought-out commentary is very valuable as MISO has these alternatives on the table,” he said.

Avoidable Costs Filing Remains on Track

MISO’s announcement of the delay comes little more than a week after it again pushed back its schedule for proposed seasonal and locational auction constructs. Meanwhile, RTO officials said the FERC-required filing on avoidable costs is expected to take place as planned on June 28.

During the meeting, Chiasson reviewed Tariff language on technology-specific avoidable costs that relies on PJM’s default values and the monthly Consumer Price Index. (See MISO Moves Forward on Auction Design; Seasonal Filing Delayed Again.)

June 13, 2016

PUCT to Look at Smart Meter Web Portal

By Rory Sweeney

AUSTIN, Texas — If it’s not completely broken, it doesn’t need a complete fix, the Public Utility Commission of Texas decided last week.

The commission has been considering whether ERCOT should assume oversight of the web portal for customers’ smart meter data or if it should remain under the control of Smart Meter Texas (SMT), an entity created by a coalition of transmission and distribution utilities (Project No. 42786). (See Oversight of Smart Meter Data Debated at ERCOT.)

The commissioners agreed at their open meeting Thursday with a recommendation by PUC staff that it open a rulemaking proceeding to reconcile data discrepancies but also limit operating-cost increases.

According to the staff, transferring authority to ERCOT would ensure that the interval data on SMT matched better with the data the ISO uses for market settlement. However, that move would also increase operating costs while simultaneously reducing the timeliness of delivering consumption data to the market.

The staff recommended that ownership of SMT remain with the transmission companies, but that the rulemaking consider the entity’s governance, performance and funding. Additionally, the data that goes to SMT would come directly from ERCOT so they match.

While all three commissioners agreed with the staff’s plan, Commissioner Kenneth W. Anderson Jr. stressed the importance of carefully delineating third-party access to customers’ data on the site. He told staff “not to languish but to move expeditiously.”

Fixing these issues are “important to the continued development of responsive demand in the ERCOT market,” he continued, adding that new technologies exist to help overcome the problems. Chief among his concerns was maintaining privacy and ensuring that consumers provide “knowing consent” when allowing third parties to access their data.

Chairman Donna L. Nelson cautioned that they not “overregulate and stop this market from evolving” and charged the PUC to “go forth and do good.”

June 13, 2016

Pact Reached on Northern Pass Utility Designation

Northern Pass Transmission and New Hampshire Public Utilities Commission staff have reached a settlement that would allow the company to conduct business in the state as a public utility.

The settlement, filed with the New Hampshire PUC last week, must still be approved by the commission. It is contingent on the Northern Pass transmission line receiving all state and federal permits.

“NPT asks that the commission find … that it would be for the public good for NPT to engage in business in those towns in which it seeks to construct an electric transmission line and associated facilities,” the settlement says.

“We are pleased to have achieved this settlement that establishes the framework for the safe operation and maintenance of Northern Pass under New Hampshire regulations,” said Bill Quinlan of Eversource Energy, NPT’s parent company.

The settlement says the developer has the technical, managerial and financial expertise needed to conduct business in the state.

Also included in the agreement is a commitment from Northern Pass to provide $20 million, allocated from the developer’s Forward NH Fund, for clean energy programs or economic development initiatives approved by the commission.

– William Opalka

June 13, 2016

MISO Reliability Subcommittee Briefs

Despite higher-than-normal temperatures and severe storms, MISO’s grid remained stable over the months of April and May, Senior Manager of Dispatch Steve Swan told the Reliability Subcommittee last week.

Unit commitment was nearly perfect and there were no minimum or maximum generation events, Swan said in presenting the RTO’s monthly operations updates. April’s full report has already been posted, while May’s will be online by June 21.

April’s peak load was 79.5 GW, set on the 26th, while May’s was 95.4 GW, set on the last day of the month.

A 14% jump in natural gas prices at the Henry Hub drove April’s day-ahead energy prices up 16% to $22.49/MWh, but prices remained low because of MISO’s “very strong wind production and low spring-time load levels.”

Despite the uptick, MISO said natural gas costs were still 26% lower in a year-over-year comparison. Henry Hub prices averaged $1.91/MMBtu for April, up from March’s average of $1.67/MMBtu but still lower than the $2.58/MMBtu average a year ago.

Wind turbines produced 4,934 GWh of energy in April, the highest ever for MISO. Wind’s share of MISO electricity production was 10.9%, up from 8.8% in both March 2016 and April 2015.

MISO Reliability Subcommittee — MISO’s frequency response under a shifting resource mix (pictured in chart) will be the subject of a coordinated issues statement.

Use of coal-fired resources continues to trend downward. Coal supplied 38.9% of April’s total energy, down from 40.5% in March and 48.3% in April 2015.

Gas-fired generation was down slightly to 25.3% in April from 26.5% in March. The number still surpasses April 2015’s 18.4% share.

MISO Wants More Response in Frequency Response

The RSC is concerned about the reliability of MISO’s frequency response under a changing resource mix.

The RTO said changes to the fleet, including the retirement of baseload generation, development of utility-scale wind and solar units and increased demand-side resources, could impact its performance.

MISO adviser Ed Skiba said a coordinated issues statement would be submitted to the Steering Committee for consideration in its issues review process.

“Frequency response is one of our key issues. The main thing is we’re trying to stay ahead of how the world evolves,” RSC Chair Tony Jankowski said.

Skiba said staff has seen “overall improved governor response from the fleet” although there were missing answers in most of the 18 governor surveys returned by balancing authorities.

Results showed the average frequency response of the generation fleet was a -0.35% of capacity/0.1-Hz frequency change. MISO said a figure closer to -1%/0.1 Hz is ideal.

In the near term, Skiba said MISO plans to send an abbreviated survey, requiring a limited amount of data.

Monitor: Changes Needed for Reliability

While the Independent Market Monitor’s State of the Market report for 2015 has not been released yet, Potomac Economics Vice President Michael Wander said the report will show that MISO needs market modifications to support reliability.

“Our State of the Market does reach a conclusion that changes are needed both for reliability and efficiency,” Wander told the RSC. “Our results show a significant amount of generator commitment that is missing is actually being scheduled in the look-ahead process.”

Wander said the appendix’s aggregate data sets will be presented to MISO staff for analysis.

— Amanda Durish Cook

June 13, 2016

Court’s Reticence Frustrates Energy Bar

By Rich Heidorn Jr.

WASHINGTON — The Supreme Court’s recent rulings in three state-federal jurisdictional cases provide only limited guidance for how it might decide future turf disputes, a panel of attorneys agreed in a discussion at the Energy Bar Association’s Annual Meeting last week.

RTO Insider © RTO Insider - supreme court energy bar association — Minzner © *RTO Insider*

They disagreed, however, over whether the court should be praised for its diffidence.

The panel focused on the court’s April ruling in Hughes v. Talen and its January order in Electric Power Supply Association v. FERC, with mentions of the 2015 ruling in ONEOK v. Learjet.

The court backed FERC’s authority in both of the most recent cases — upholding its jurisdiction over demand response in EPSA and rejecting Maryland’s subsidy of a generator that could have undermined PJM’s FERC-regulated capacity auction.

‘Very Narrow Decision’

Kindall © RTO Insider -- supreme court energy bar association — Kindall © *RTO Insider*

But FERC General Counsel Max Minzner isn’t letting the victories go to his head. The court’s ruling in Hughes v. Talen was “a very narrow decision,” Minzner said. (See Supreme Court Rejects MD Subsidy for CPV Plant.)

The court unanimously rejected Maryland’s contract-for-differences with a natural gas plant, saying it violated the Constitution’s Supremacy Clause, which establishes that federal law preempts contrary state law (14-614, 14-623).

Minzner said the ruling preserved “a wide range of tools for states to incentivize or affect generation” but found the Maryland program improper because it interfered with FERC’s jurisdiction over wholesale electric markets and could distort price signals in PJM’s annual capacity auctions.

“The court, I think, was clear that a significant number of traditional state activities that could in theory have an impact on the wholesale rate are likely to be preserved after Hughes,” Minzner said. “There was a long discussion at the end [of the opinion] about the range of things the states can do without running afoul of this specific problem.”

Connecticut Assistant Attorney General Clare E. Kindall, who co-authored an amicus brief in Hughes, said she was “relieved to hear that FERC’s general counsel thinks it’s a narrow ruling.”

“I believe that the Supreme Court did narrow the 4th Circuit’s original holding [against Maryland]. But I also think the Hughes case and this trio of cases is a full employment act for this group [lawyers] for the next 10 years, because I think there will be a lot of litigation over what exactly a state can and cannot do,” she said. “There is a role for FERC and there’s a role for the states. And this room will spend most of the next 10 years drawing those lines.”

Dentons partner Stuart A. Caplan, who moderated the discussion, echoed Kindall’s comments, complaining of “an unsatisfying lack of clarity in the decisions as to the basis of jurisdiction.”

No End to Litigation

Murphy © RTO Insider - supreme court - energy bar association — Murphy © *RTO Insider*

Bancroft partner Erin E. Murphy, a member of Talen’s legal team, agreed that the rulings are “hardly going to put an end to litigation.”

“The court was trying to avoid drawing particularly bright lines or giving a whole lot of guidance. It really had to approach each of the cases as: ‘We’re going to decide precisely what’s before us and not say a whole lot more than that — which isn’t all that unusual for how the court operates, particularly when it’s dealing with an area like this that the court knows it’s not the body with the great expertise.”

Kindall lamented that the rulings did nothing to answer a policy question: “whether markets answer all questions.”

“The markets have done a tremendous good,” she said. “Connecticut is deregulated and [I] was a little offended by the idea that the only way to ensure reliable energy was to reregulate, which was one of the suggestions in Hughes. That struck us as a really wrong tack to take. … The question becomes, if you have a market failure, how do you address it? That will have to be a [discussion] between the federal agencies and state agencies.”

Not Identical

Minzner distinguished between the EPSA ruling, which he said was about the scope of the Federal Power Act, and the other two cases, which deal with “core Constitutional” questions about the meaning of the Supremacy and Commerce clauses.

“Those are related questions but I don’t think they’re identical,” he said.

Kindall said EPSA (14-840, 14-841) was decided less on principle than practicality — the potential loss of demand response from wholesale markets. (See Supreme Court Upholds FERC Jurisdiction over DR.)

“I think that was really what was guiding [the court] — and the fact that the states weighed in. They weren’t there saying protect their jurisdiction. … [They] said FERC absolutely should be able to do this as well [as the states]. You can sort of slice and dice all the legal analyses, but I think at the bottom that was what was really going on.”

“We did have a few states on our side too,” Murphy interjected, prompting laughter. But she said she agreed with Kindall’s analysis.

“When you look at the way the court was thinking about it … this is happening in FERC’s market, and how else can we make sure that this happens in FERC’s market if FERC can’t control it? Which is a little bit divorced from a starting principle of: ‘Is it wholesale or retail?’”

Field or Conflict Preemption?

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Caplan said he believed the Hughes ruling was based on broad “field preemption” grounds — that it was an intrusion into exclusive federal jurisdiction — rather than the narrower “conflict preemption” — that it undermined FERC policy.

“It seemed that the court explicitly declined to consider what the effects on the wholesale market were, which would have been necessary if the courts were applying the conflict preemption,” he said.

Murphy and Minzner agreed that the ruling seemed to be based on field preemption.

Murphy also offered a defense of the court’s refusal to draw bright jurisdictional lines. “While I think it’s frustrating to people who practice to not have this clear guidance from them … I do think that [the court’s] reluctance to provide it is animated by their decision that it’s better to not give totally clear guidance than to mess it all up in an area that they don’t understand as well as all the people in this room do.”

“A refreshing breath of humility,” Caplan quipped.