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DWGP Attorneys Address 2014 APPA Legal Seminar
Four DWGP attorneys spoke on three different topics at APPA’s Legal Seminar held in San Antonio in October 2014. Their presentations are available on the APPA website.
Kathryn R. Thomas and Thomas L. Rudebusch presented on "Utility 2.0: Opportunities and Challenges for the Public Power Business Model." They described examples of how public power entities have implemented smart grid technologies. Tom and Katie then discussed how several business models for "Utility 2.0" may affect public power's future.
Jason T. Gray presented on the "Implications for Public Power of a Western Energy Imbalance Market." Jason focused the various challenges and potential opportunities associated with initiatives to establish energy imbalance markets in the West. He then identified practical ways public power entities can manage the impacts of these initiatives and advance their interests.
Michael Postar presented on “Order 1000 Compliance by Public Power.” He discussed approaches taken by public power in various regions to comply with Order 1000. Michael explained the importance of participation by public power transmission owning utilities as well as transmission customers in the development of regional compliance rules and in the ensuing transmission planning.
Electricity Regulator in Grand Cayman Voices Support for Ocean Thermal Energy Conversion Plant
DWGP client OTEC International LLC recently received public support from its local regulator for its planned Ocean Thermal Energy Conversion (OTEC) plant, which is designed to use the warm waters off the coast of Grand Cayman to generate firm renewable electricity. If successful, the plant would have an advantage over other types of renewable power, such as wind or solar, which are classified as intermittent resources and are only capable of providing non-firm electricity.
According to the article on CaymanCompass.com, Charles Farrington, the Managing Director of the Cayman Islands Electricity Regulatory Authority, voiced his support for the project:
Charles Farrington, managing director of the Cayman Islands Electricity Regulatory Authority and a member of the Environmental Assessment Board that is overseeing the study, said the project has the potential to be a significant one in Cayman’s energy future.
“It will obviously be an important development if they can bring it to commercial reality,” he said. “If it works and it goes through a period where it proves itself to be reliable, the expectation is that it would be classified as firm renewable power.”
View the full article here: http://www.compasscayman.com/caycompass/2014/10/01/Floating-power-plant-would-reduce-reliance-on-fossil-fuels/
Energy News – D.C. Circuit Vacates and Remands NERC and FERC Orders Imposing Monetary Penalty on the Southwestern Power Administration
On August 22, 2014, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), in a unanimous decision, vacated and remanded to the Federal Energy Regulatory Commission (“FERC”) a FERC order approving the North American Electric Reliability Corporation’s (“NERC”) imposition of a monetary penalty against the Southwestern Power Administration (“Southwestern”) for its violation of certain mandatory Reliability Standards.
Southwestern, a subdivision of the Department of Energy (“DOE”), is one of four federal Power Marketing Administrations, marketing low-cost hydroelectric power produced from various Army Corps of Engineers projects in the southwestern United States. On July 28, 2011, NERC imposed a $19,500 penalty on Southwestern for its violation of Reliability Standards related to cyber security and critical infrastructure. FERC upheld the penalty. Southwestern did not challenge NERC and FERC’s authority to find a Reliability Standard violation. Southwestern, DOE, and the Department of the Interior appealed NERC and FERC’s decision to impose a penalty for that violation to the D.C. Circuit.
Disagreeing with NERC and FERC, the D.C. Circuit found that neither NERC nor FERC have authority under section 215(e) of the Federal Power Act (“FPA”) to impose monetary penalties on federal entities. The D.C. Circuit stated that the proceeding involved whether the FPA unambiguously and unequivocally waives the United States’ right of sovereign immunity to be free from the imposition of monetary penalties. When examined in this context, the D.C. Circuit held that section 215(e) does not include an express waiver of sovereign immunity; therefore, the court ruled neither NERC nor FERC have authority to enforce monetary penalties against federal agencies for the violation of Reliability Standards. It found that section 215(b) of the FPA grants NERC and FERC general authority to approve and enforce compliance with Reliability Standards. However, the D.C. Circuit stated that such enforcement mechanisms on federal agencies are limited to “non-monetary means . . . such as compliance orders or directives, enforcement audits, and the like.”
By finding that NERC and FERC lack authority to impose monetary penalties on federal entities, purchasers of power sold by federal Power Marketing Administrations, including rural electric cooperatives and municipal utilities, will not have to bear the burden of these penalties in the form of increased prices. Additionally, the reliability of the bulk power system will continue to be maintained as NERC and FERC still retain non-monetary enforcement mechanisms to ensure federal agencies comply with Reliability Standards.
To view this decision, please click here.
Jeffrey C. Genzer and Kristen Connolly McCullough submitted briefs on behalf of the Mid-West Electric Consumers Association and the Southwestern Power Resources Association, arguing that NERC and FERC lacked authority to impose monetary penalties on federal entities.
Joshua E. Adrian and Jason T. Gray become Shareholders; Tyler E. Mansholt and Kathryn R. Thomas* join as Associates
DWGP has named Joshua E. Adrian and Jason T. Gray Shareholders of the Firm. Joshua and Jason bring considerable experience representing clients in electric, hydroelectric, and natural gas matters. Joshua’s electric and hydroelectric representation and Jason’s prior experience with the Kansas Corporation Commission and varied energy experience in electric and natural gas proceedings have contributed to the success of the Firm’s clients.
Two new additions to DWGP, Tyler E. Mansholt and Kathryn R. Thomas, bolster an already formidable energy team. Tyler’s experience with the Office of General Counsel, Office of Energy Projects, Federal Energy Regulatory Commission, brings hands-on project experience to the Firm. Katie’s focus on Smart Grid, the integration of renewable energy resources and environmental law continues the Firm’s support of the evolving needs of our clients.
The Firm’s announcement can be accessed here.
*Admitted only in Colorado; Supervision by Principals of the Firm, Members of the DC Bar.
DWGP Client Granted License for Advanced Pumped Storage Hydro Project
DWGP client Eagle Crest Energy (ECE) received a new 50-year license from the Federal Energy Regulatory Commission (FERC) for the ECE’s Eagle Mountain Pumped Storage Hydroelectric Project (Project), FERC Project No. 12569, on June 19, 2014. The 1,300 MW Project is a prime example of pumped storage projects that both Congress and FERC have recognized hold great promise. In addition to serving as a source of clean, renewable energy themselves, pumped storage projects provide energy storage solutions that make intermittent resources like solar and wind more reliable generation sources. DWGP attorneys Don Clarke and Josh Adrian provided assistance and guidance in agency and stakeholder consultations, NEPA compliance, and FERC liaison throughout the various licensing stages.
The Project will be located at the site of an inactive mine in Riverside County, California near the town of Desert Center. Two mining pits will serve as the upper and lower reservoirs for the innovative pumped hydro project. Because the Project will be located at a high elevation in an arid desert region, the disturbance to the environment, recreation opportunities, and aesthetics will be minimal. Nevertheless, the license contains conditions to ensure groundwater quality and protect geological resources as well as desert wildlife within the vicinity of the Project. Although the license contains recommended water quality conditions, FERC rejected the state water quality certification on jurisdictional grounds. DWGP attorneys are actively involved in strategic planning for license compliance, project construction, and related regulatory approvals.
- Energy News - D.C. Circuit Vacates FERC Order No. 745 – Demand Response Compensation in Organized Wholesale Energy Markets Rule
- Environmental News - EPA Issues Proposed Rule on Carbon Emissions from Existing Power Plants
- Legislative News - Congress Acts to Spur Hydropower Development at Federal Facilities
- Joshua Adrian Featured as NRECA Guest Editorial on New Hydropower Development Opportunities