The Federal Energy Regulatory Commission (“FERC”) will host its January Open Meeting on Thursday, January 18, 2024. The Sunshine Act Meeting Notice (“Notice”) issued January 11, 2024, indicates that FERC intends to take action on several items of note, some of which will be of particular interest for renewable and battery storage developers. Among the items listed on the Notice for action at the Open Meeting are a second petition for rehearing from the owners of a Qualifying Facility (“QF”) in a proceeding disputing an assigned avoided cost rate, and a request for a limited waiver to extend the commercial operation date for a solar facility in Arkansas. We also anticipate that FERC will act on two separate but related petitions for declaratory orders from a fund investing in generation and transmission assets regarding exemptions from the Public Utility Holding Company Act of 2005 (“PUHCA”). The Notice also indicates FERC will act on a refund report filed by a developer pursuant to a FERC order to provide refunds of the revenues it collected while it was engaged in the unauthorized wholesale sale of energy and capacity that was disclosed in its application for market-based rate authorization.

This Open Meeting marks the first for new Acting Secretary of FERC Debbie-Anne Reese, who current FERC Chair Willie Phillips named to the position after the retirement of long-time Secretary Kimberly Bose. Debbie-Anne Reese has worked at FERC since 2006 and has served as its Deputy Secretary since 2021. The Secretary of the Commission is one of the unsung heroes of the FERC world, tasked with serving as the official recipient and processor of all filings, publisher of FERC orders, and main point of contact for interested parties inquiring about the status of proceedings before the agency. The Secretary also guides and supervises the agenda and minutes of FERC’s open meetings.

This meeting also marks the first meeting since James Danly completed his service as a FERC Commissioner. FERC now stands at three commissioners and two vacant seats—with two Democratic and one Republican appointee. FERC is expected to operate at more-or-less full strength with three commissioners, and there has been little talk of the Biden administration nominating new appointees to fill the commissioner vacancies any time soon.

Generator-Related Filings Under the Federal Power Act:

We expect FERC to act on a second request for rehearing regarding an ongoing dispute between the owners of a qualifying facility (“QF”) and Midland Power Cooperative (“Midland”) where the Complainants alleged under Sections 206 and 301 of the Federal Power Act (“FPA”) that Midland has paid them an improper avoided cost rate for their QF since 2004. The Commission issued a Notice of Intent Not to Act in September 2023, where it established that it did not have jurisdiction over Midland under the FPA because Midland is not a public utility. In the same notice, FERC declined to initiate an enforcement action against Midland under the Public Utility Regulatory Policies Act of 1978, thereby allowing the Complainants to bring an enforcement action against Midland in court. The Complainants subsequently filed a petition for rehearing, which the Commission denied. Complainants then filed a second request for rehearing in October, which is pending before the Commission and we expect will be acted on this Thursday. Long Lake Solar, LLC, (“Long Lake”) filed a request for a limited waiver of certain provisions in Midcontinent Independent System Operator, Inc’s (“MISO”) tariff to accommodate a short extension of its commercial operation date (“COD”) beyond the three-year limitation on COD extensions established in MISO’s tariff. Long Lake, the developer of a 200-megawatt (“MW”) solar facility in Arkansas, requested the waiver, which is unopposed, due to delays associated with its equipment supply chain. We expect FERC to act on the waiver request at its Open Meeting.

Refund Report Regarding Unauthorized Wholesale Sales of Electricity:

E. BarreCo Corp LLC (“E. BarreCo”), the developer of a 5 MW battery storage facility in Vermont, disclosed in its application for market-based rate authority that it engaged in the unauthorized wholesale sale of electricity by making such sales prior to receiving market-based rate authorization from the Commission. In the letter order granting it market-based rate authorization, E. BarreCo was ordered to issue refunds of the time-value of the gross revenues collected for the period of its unauthorized sales. E. BarreCo filed a refund report (which it subsequently revised) establishing how it calculated the refund amounts and demonstrating payment of such refunds. We expect the Commission will act on the refund report on Thursday.

Public Utility Holding Company Act Waiver Petitions:

arGo Partners GP LLC (“arGo”) concurrently filed two petitions seeking declaratory orders regarding waivers of the accounting, record-retention, and reporting requirements of 18 C.F.R. §§ 366.21, 366.22, and 366.23. In one petition, arGO is seeking confirmation that arGo’s affiliate’s FERC-approved acquisition of Brookfield Smoky Mountain Holdings LLC (“BSMH”), an exempt wholesale generator with market-based rate authority, and Smoky Mountain Transmission LLC (“SMT”), an independent transmission-only company, will not affect the waivers of 18 C.F.R. §§ 366.21, 366.22, and 366.23 currently held by BSMH and its subsidiaries as the holding companies of exclusively exempt wholesale generators, QFs, and independent transmission-only entities. In the second petition, arGo is seeking a declaratory order from FERC for exemption from 18 C.F.R. §§ 366.21, 366.22, and 366.23 that might attach to arGo and its subsidiaries due to the fact that by virtue of recent transactions, the entities became holding companies of two public utility companies and two natural gas companies, none of which are Qualifying Facilities or exempt wholesale generators. The petition argues that since the books and records of arGo and its subsidiaries are not relevant to any jurisdictional rates or raise any concerns with respect to jurisdictional rates, there is no need to subject arGo and its subsidiaries to PUHCA obligations. We expect FERC will act on both petitions at the open meeting.