Energy Storage: Finding New Home with FERC Policy Statement and Notice of Proposed Rulemaking

by Pillsbury Winthrop Shaw Pittman LLP

Pillsbury Winthrop Shaw Pittman LLP


  • FERC has issued a policy statement on how electric storage resources may be able to recover both cost-based and market-based rates.
  • Interested parties have submitted comments on the FERC’s ongoing NOPR that seeks to remove market barriers for electric storage.
  • Comments showcased varying positions of market participants and concerns that need to be resolved before a final rule is issued.

The Federal Energy Regulatory Commission (FERC) has taken steps over the past few months to address integration of electric storage into the market. In November 2016, FERC issued a Notice of Proposed Rulemaking (NOPR) to establish rules for participation by energy storage in wholesale electricity markets, and in December 2016, proposed to revise the pro forma interconnection procedures and agreement for large generators to “explicitly include electric storage resources.” On January 19, FERC released a policy statement clarifying that electric storage resources may recover both cost-based and market-based rates if certain conditions apply. Numerous parties have filed comments on FERC’s proposed rule changes. While FERC’s proposed rules have not yet been finalized, market participants seeking to bring storage resources to the wholesale electricity marketplace should understand the implications of these recent efforts to incorporate electric storage on a wider scale.

Energy Storage Policy Statement

On January 19, FERC released a policy statement providing guidance on how electric storage resources may recover both cost-based and market-based rates. Because electric storage can provide multiple services to the grid almost simultaneously, they may fit more than one traditional asset class (i.e., generation versus transmission) and provide both cost-based and market-based rate services. In an effort to maximize the full benefits, the policy statement outlines three criteria rooted in FERC precedent that should allow electric storage resources to recover cost-based rates and participate in wholesale markets using market-based rates:

  1. Avoiding Double Recovery – The policy statement seeks to avoid a situation where storage resources are able to collect both cost-based and market-based rates without crediting back revenues to the ratepayers. A viable solution could involve collecting full unadjusted costs through rates and then crediting excess revenues back to customers. FERC suggested an alternative potential solution, whereby owners of a storage resource reduce their “revenue requirement” up front by estimating market revenues as accurately as possible, and then true up revenues to reflect receipts from market-based revenues.
  2. Minimize Adverse Impacts to Competition in Wholesale Market – Some market participants argue that allowing storage resources to recover cost-based rates (i.e., transmission-based rate recovery) and participate in wholesale markets could result in a de facto subsidy that could thwart competition. Others note that numerous resources already deployed on the grid seek market-based rates via bidding mechanisms while providing cost-based rate services. The policy suggests no additional measures need be taken to avoid impacts on competition, beyond those suggested to avoid double recovery. FERC also noted that if it were to deny electric storage resources the opportunity to recovery, it would not be fair to allow resources owned by vertically integrated utilities that recover some or all of their costs through cost-based retail rates to do just that. As a result, the Commission would need to revisit its precedent allowing some form of double initial recovery for other resources, which would pose major challenges.
  3. Preserve Independence of Regional Transmission Organizations (RTOs)/Independent System Operators (ISOs) – Although some degree of RTO/ISO operational control over storage resources is required to maintain system reliability and ensure that electric storage resources offer their full range of simultaneous services to the grid, FERC seeks to integrate electric storage resources in a manner that preserves RTO and ISO independence from market participants. FERC suggested that owners and operators of electric storage resources should be responsible for energizing the resource (i.e., maintaining its state-of-charge) and controlling discharges for market-based rate services, not the RTO/ISOs. Lastly, if a storage resource concurrently offers cost-based and market-based services, FERC indicated that priority should be given to use for cost-based services. Also in a dual-service scenario, when the storage resource is not providing services compensated by cost-based rates, the owner or operator of the electric storage resource, not the RTO or ISO, must control its use.

Commissioner Cheryl LaFleur (who subsequent to issuance of the policy statement became Acting Chairman of FERC) dissented to the new policy statement, noting its rationale was both “flawed in its conclusions and premature in its timing.” In her view, the statement made “sweeping conclusions” about potential impacts of multiple payment streams on pricing in the market, and generally lacked guidance on how the Commission would evaluate effects on competition.

Electric Storage NOPR

The policy statement was issued just weeks before FERC expects to receive comments on a much larger initiative regarding electric storage. On November 17, 2016, FERC issued a NOPR aimed at removing market barriers for electric storage resources and distributed energy resource (DER) aggregators in the capacity, energy, and ancillary service markets. The issuance of the NOPR reflects FERC’s belief that, as these technologies become more cost-effective and are used on a much broader scale, there will be a greater need for RTOs/ISOs to establish “participation models” that account for their size and physical characteristics. The NOPR proposes a final rule that would require each RTO and ISO to (i) create market rules for electric storage resources to participate in wholesale markets; (ii) define DER aggregators as wholesale market participants; and (iii) establish rules for each aggregator to participate in the wholesale market under the participation model that best accounts for their physical and operational characteristics. The rules for aggregators would also apply to other types of distributed resources, including community solar.

Electric storage is unique in that it can provide multiple services on the grid almost simultaneously. FERC is concerned though that full utilization of electric storage will be impeded if storage resources are forced to participate in the market under participation models for traditional asset classes (e.g., transmission, distribution or demand response) that do not reflect all of the characteristics of energy storage. Absent market rules tailored to the technical realities for electric storage, companies have been forced to use preexisting participation models that may not adequately address storage’s capabilities. Electric storage resources can participate in the California Independent System Operator (CAISO) energy market as “participating generators, non-generator resources, pumped storage hydro units, or demand response resources,” but can provide only “regulation service” in the Midcontinent Independent System Operator (MISO) market. FERC believes new, asset-specific participation models will enhance competition and result in full utilization of benefits of storage to the grid.

Under the NOPR, RTOs and ISOs would be required to amend their tariffs to establish “participation models” for electric storage that, at a minimum, (i) ensure storage resources are eligible to provide capacity, energy, and ancillary services in wholesale electricity markets; (ii) establish bidding parameters; (iii) ensure storage resources can be dispatched and can set the wholesale market clearing price as both a wholesale seller and buyer; (iv) establish a minimum size requirement not to exceed 100 kW; and (v) require that energy sold from the market to storage resources be resold back to the market at the wholesale locational marginal price (LMP).


The NOPR’s comment period ended on February 13, 2017. Extensive comments were filed by electric storage companies, utility companies and RTO/ISOs. While most parties submitting comments approved the Commission’s overarching goals, positions differed on a number of significant issues:

  • RTO/ISO Flexibility: Of the six RTO/ISOs that submitted comments, all urged FERC to refrain from adopting “one-size-fits-all” requirements. Providing RTO/ISOs considerable flexibility, they claim, is the most efficient way to ensure tariff rules continue to accommodate for region-specific resources and meet region-specific requirements. As many pointed out, storage resources have already enjoyed a degree of success of some single-state ISOs, while RTOs covering multiple states (like the New England-ISO) have yet to implement advanced metering infrastructure on a wide scale. The RTOs contend that uniform standards may disrupt progress that has already been made in, for example, the NY-ISO, which has already begun to develop a model for storage’s participation in wholesale, ancillary service and capacity markets, and in the CAISO, whose non-generator resource model supports storage’s participation in wholesale markets. The Solar Energy Industries Association and Energy Storage Association strongly disagreed, arguing that uniform tariff rules that standardize market rules are essential to avoid “discriminatory” barriers.
  • Minimum Capacity: The vast majority of commenters found FERC’s 100 kW minimum capacity requirement agreeable. However, some RTO/ISOs expressed concerns regarding implementation of a capacity requirement this small. MISO cautioned that its market software may not be capable of tracking and processing information of multiple, small capacity energy resources operating simultaneously. Similarly, CAISO contended that clearing congestion with thousands of resources in the 100 kW range might reduce efficiency and performance of market software used in a grid that serves over 50 GW of peak load. CAISO alternatively suggested a minimum installed capacity requirement of 500 kW, which would still afford smaller resources the ability to participate in wholesale markets via aggregation models.
  • Online and Synchronized Requirement: Energy storage companies and trade associations argued that tariff rules should not require storage resources to offer/inject energy in the same manner that traditional resources offer ancillary services—those that maintain grid stability and security. They contended that storage resources should not have to continuously offer energy via energy schedules in order to offer ancillary service because, unlike most traditional generators, storage resources can ramp immediately to provide “spinning reserve.” Abiding by energy schedules, they suggested, would unnecessarily waste storage resources’ energy limits. MISO, in particular, agreed with this point, opining that online status and synchronization should not be required for storage resources that can start rapidly.
  • Retain “Technology-Neutral” Fairness: Tariff rules distinguish by service (e.g., generation load, ancillary service), not technology. Some parties (ISO-New England) are concerned that FERC’s emphasis on participation models and bidding parameters is inconsistent with market design objectives that focus on products rather than participant type. Commenters from the oil and gas industry cautioned that tariff rules for compensation and bidding should be based on performance, apply equally to all forms of energy, and should not discriminate in favor of certain technology types. PJM Interconnection asserted that it is essential that rules, regulations and obligations be uniform and not create inappropriate preferences for any particular resource.
  • Implementation timeline: The NOPR proposes to require each ISO/RTO to submit a compliance filing within six months of a final rule. Not surprisingly, the RTO/ISOs expressed doubt that such ambitious goals could be implemented within six months and suggested alternative timeframes ranging from 18 months to two years.

Energy Storage Market

As electric storage technologies become more cost-effective, the prospect of them being added at scale becomes imminent. Twenty-nine states and the District of Colombia have a Renewables Portfolio Standard (RPS). With these commitments driving the procurement of more solar, wind and geothermal resources, the need for system flexibility increases as the grid incorporates more variable and intermittent sources of electricity. In January, the second installment of the Department of Energy’s Quadrennial Energy Review (QER 1.2) reported that the third quarter of 2016 saw the most project financing for electric storage since the first release of the report in 2015. Overall corporate investments in storage amounted to approximately $650 million, a fivefold increase from Q3 2015. Recent Department of Energy statistics demonstrate that 1.56 GW of non-hydro electric storage are currently offered on the grid through 456 separate projects; a figure that suggests the storage market could significantly surpass prior growth predictions of 2.0 GW by 2021.

Energy Storage Under New Administration and a Temporarily Limited FERC

FERC’s next steps remain to be seen, both substantively and from a timing standpoint. As noted, since FERC issued the NOPR in November the former Chair of the Commission, Norman Bay, has resigned. As a result, FERC currently lacks a quorum and is unable to issue the final rule until at least one Commission seat is filled by the new administration. Three of the five seats on the Commission remain to be filled by President Trump, leaving the Commission ripe for a Republican majority. It is unclear how long these vacancies will remain open. Naming the next Commissioner (which would reestablish a quorum) it likely to take a minimum of 2–3 months and could take much longer. Further, even after this occurs, the Commission may choose to wait until the remaining vacancies are filled before it takes action—a process that could take all or most of this year.

The newly appointed commissioners could have different views than their predecessors. Further, Acting Chairman LaFleur, who already expressed disagreement with the policy statement, is expected to remain on the Commission until the end of her term in June 2019. As a result, a range of different outcomes is possible. Policies to promote storage would be consistent with the Trump Administration’s support for infrastructure development. The Administration recently released a priority list of fifty emergency and national security projects, including “Energy Storage and Grid Modernization in California” and the “Plains and Eastern Electric Transmission Line and TransWest Express Transmission” projects, which would deliver wind energy for local distribution. Many observers believe, though, that the new Administration is less receptive to fostering the development of renewable energy than President Obama. If commissioners appointed by President Trump share this view, they may be reluctant to take further action to promote storage.

The fundamental driver for renewable energy, however, remains state Renewable Portfolio Standards. As additional renewable energy resources are added and cost-effectiveness of storage technologies continues to improve, increased utilization of storage will become increasingly important. FERC will need to continue developing its policy, either by general rulemaking or RTO/ISO-specific tariff rulings. The NOPR and policy statement are an important starting point, but many issues will need to be resolved in the future.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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