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News Digest

State PUCs
Fortnightly Magazine - April 15 2000


transmission facilities.

Meanwhile, the PUC noted that the MWISA so far had been conducting management activities through an interim stakeholder board and needed to hurry up and form an independent board to legitimize the governing process. Earlier, the MWISA's stakeholder board had selected Automated Power Exchange to provide software support, but the PUC questioned that move when it declared: "The decision as to the selection of a vendor should be left until the independent board is in place."

The Fortnightly questioned Rosalie Day, chairman of the current interim stakeholder board, on how the ISA could form a new board, satisfy tests of independent governance, and conduct another solicitation for a software vendor and operator - all without funding.

She answered, "Has the train left the station without an engineer? Heck, it doesn't even have tracks."

Courts

APX Oversight. Noting the "broad language," Congress used in the Federal Power Act, a federal appeals court upheld a ruling by the Federal Energy Regulatory Commission that had claimed jurisdiction to regulate the Automated Power Exchange as a public utility under the Federal Power Act. APX, which had argued that it wasn't a public utility because it will not transmit or take title to power, instead called itself an "information management agent."

The court agreed with the FERC that the software used by APX played a role in markets by assigning a price to bilateral transactions where a gap might still exist between the bid and offer prices submitted by transacting parties.

After the ruling was issued, APX announced that its latest software and product design would not incorporate this feature of automatically setting a price (where a buyer and seller had not yet agreed) for private power exchanges planned in Illinois (working with Commonwealth Edison) and Ohio (working with FirstEnergy).

NOx Emissions. A federal appeals court rejected a claim that the Environmental Protection Agency has not explained adequately what volume of nitrogen oxide emissions flowing from one state to another contributes "significantly" to NOx nonattainment under Section 110 of the Clean Air Act.

The appeal was based on last May's decision in , which ruled that the EPA had interpreted the Clean Air Act so loosely that the power delegated to it by Congress was unconstitutional. Yet the court sought to limit the consequences of that ruling.

The court noted that "a mass of cases" had upheld delegations of "effectively standardless discretion," even where the scope of agency power was narrow.

It said the EPA need only do three things to show a significant contribution to nonattainment: (1) identify emissions activity within a state, (2) show evidence that emissions migrate to another state, and (3) show that the emissions contribute to nonattainment.

QF Certification. A federal appeals court affirmed a ruling by the Federal Energy Regulatory Commission that had upheld certification for a qualifying cogeneration facility (QF) even though the QF's corporate voting rules allowed electric utility affiliates (controlling a 45 percent ownership interest) to block significant corporate action, a feature that had led to complaints alleging a violation of QF rules regarding utility ownership.