EPAct 2005

State commissions can select from a toolkit of regulatory approaches to promote desired utility cybersecurity behavior. One approach is to allow the industry to selfregulate, and another approach is to leave the job to the federal government. But sofar, neither the industry nor the federal government have developed and implemented adequate standards for securing the smart grid. States can play a constructive role—albeit perhaps not in the form of traditional regulation.

The electric utility industry offers up a wealth of ideas on how the Federal Energy Regulatory Commission might reform its policy, adopted under FERC Order 679 in 2006, of granting financial incentives for investments in transmission line projects that ensure reliability or mitigate line congestion so as to reduce the cost of delivered power. Fortnightly’s Bruce W. Radford reports.

The Federal Energy Regulatory Commission (FERC) recently authorized its Office of Enforcement to begin revealing publicly the names of subjects under investigation, as well as summaries of allegations against them, earlier than the commission ever had before. In fact, FERC now may disclose allegations before finding any wrongdoing. This new practice raises the specter of damaging reputations without following what normally would be considered due process.

FERC’s revised policy provides greater predictability and transparency in the commission’s approach to determining civil and criminal penalties under its statutory authority. Despite a more systematic framework, however, FERC retains discretion to assess penalties based on the facts of individual cases.

FERC’s final rule authorizing new natural gas storage facilities seems to presume market power for pipelines and new storage. FERC should consider changing that presumption to more accurately reflect Congress’s intent in EPAct 2005.

FERC owns more than one enforcement tool. Besides civil penalties, it can require compliance plans or disgorgement of unjust profits, or condition, suspend, or revoke market-based rate authority, NGA certificate authority, or NGA blanket certificate authority. And lacking criminal penalty authority itself, FERC can refer matters to the U.S. Department of Justice for criminal prosecution. Moreover, while defining an organization as any entity other than a natural person, FERC nevertheless will continue to determine civil penalties for natural person violators, looking to the guidelines for guidance in setting such penalties.

FERC’s proposed penalty guidelines provide the opportunity for improved regulation. More practical and consistent characteristics for determining penalty fine ranges will increase penalty predictability for industry violations of federal regulations—and will make FERC’s enforcement more fair and transparent.

New England is leading the way toward a future that is both cleaner and provides greater electric reliability at reduced cost. New England Independent System Operator (ISO-NE) has created an innovative mechanism that addresses concerns about ensuring adequate energy capacity by allowing the cleanest and lowest-cost resources to be used to meet the nation’s power needs.

Natural gas often is called the world’s most perfect fuel. And since it can be transported as liquefied natural gas (LNG), and, as LNG, is projected to meet 20 percent of the country’s natural-gas requirements by 2025, the construction of onshore LNG terminals is crucial for the United States. Siting of LNG terminals is contentious as states and a range of stakeholders challenge and seek to frustrate FERC’s permitting authority.