The D.C. Circuit once observed that the Mobile-Sierra doctrine is “refreshingly simple.” In fact, however, the doctrine has become incredibly nuanced and complex over time. In two...
Fortnightly's Top 10
at a permanent repository, but postponed any ruling on whether NRC must continue seeking a license for the Yucca Mountain repository.
#6 Big Data, Big Brother: No Place to Hide
To help detect anti-competitive behavior, FERC issued Order 760, directing RTOs to hand over market data to the commission electronically, within seven days, including: 1) supply offers, demand bids, and market prices for energy, capacity and ancillary services; 2) resource outputs (dispatch instructions and actual deviations); 3) estimates of generator marginal costs; 4) shift factors for load and generation (flowgate impacts, interchange points, etc.; 5) FTR parameters (auction and allocation rights, congestion revenues, etc.); 6) internal bilateral contracts; 7) pricing for interchange transactions; and 8) billed uplift costs—but only to the extent the RTO or its market monitoring unit actually collects such data.
And utilities operating outside of RTOs, as well, may soon have no place to hide.
Earlier this month, the commission staff adopted a set of 39 performance metrics tailored specifically to measure the performance and efficiency of utilities operating outside of RTOs or regional grid system operators. According to the staff report, FERC next will seek to establish common metrics between RTOs and non-RTO regions, perhaps allowing for comparisons between restructured and still-vertically-integrated utilities.
#7 Third-Time Charm: The Duke/Progress Deal
Having rebuffed the would-be partners in two prior decisions, FERC finally gave its blessing this past summer to the merger of Duke and Progress Energy.
If anything, the final merger ruling (Dkt. Nos. EC11-60-004 et al., 139 FERC ¶61,194, June 8, 2012) might teach that FERC retains a soft spot for any mitigation of market power that is designed to broaden the size and reach of markets. In this case, FERC allowed the merger only on a promise to complete seven new transmission expansion projects to boost simultaneous transmission import limits and thereby allow rival generators to better compete in the newly combined Duke-Progress service footprint.Yet just a few months before, FERC had decided against updating its merger review policy to incorporate stricter guidelines recommended by the Justice Department and Federal Trade Commission.
#8 Nothing but the Truth: Beware the Anonymous Tip
Acting on information developed initially from an anonymous tip to the commission’s hotline, FERC imposed a $135 million civil penalty, plus a duty to disgorge another $110 million in “unjust” profits, on finding that Constellation Energy Commodities Group (CCG) had engaged intentionally in unprofitable virtual trades in order to influence day-ahead prices in regional energy markets run by the New York ISO and ISO New England.
In a separate statement issued a week after the decision (Dkt. No. IN12-7, 138 FERC ¶61,168, March 9, 2012) , FERC Chairman Jon Wellinghoff said the combined $245 million sanction represented the largest penalty the commission had ever imposed under the expanded enforcement authority granted by Congress in the 2005 Energy Policy Act:
“Understand that the commission will be vigorous,” said Wellinghoff. “Tell the truth, the whole truth, and nothing but the truth when questioned.”
#9 You Can’t Build That: Developer loses right to build its own project