Speaking Energy

On February 29, 2024, President Joe Biden nominated three individuals to the Federal Energy Regulatory Commission (FERC or the Commission): Judy W. Chang (Democrat), David Rosner (Democrat) and Lindsay S. See (Republican). As noted in the White House announcement, “[b]y statute, the Federal Energy Regulatory Commission shall be composed of five members, with no more than three from the same political party,” and Lindsay S. See “is the nominee recommended by the Senate Minority Leader Mitch McConnell.”

On October 19, 2023, the Federal Energy Regulatory Commission (FERC) directed the North American Electric Reliability Corporation (NERC) to submit new or modified Reliability Standards that address the impacts of inverter-based resources (IBRs) on the reliable operation of the Bulk-Power System¹ to “protect the grid as the nation makes the transition to expanded use of clean energy technologies.”² The Final Rule also addresses certain IBRs connected to the distribution system that in the aggregate have a material impact on the Bulk-Power System (IBR-DERs).³ Broadly speaking, IBRs are “power electronic devices [used] to change the direct current power produced by generators into alternating current power that is then transmitted on the bulk electric system,”⁴ and they are common to solar, wind, battery storage and fuel cell facilities, among others. Because such resources “respond to grid disturbances differently from traditional [synchronous] generation resources such as hydropower, nuclear, coal or natural gas plants,” FERC determined that they require different Reliability Standards “to ensure IBRs support reliability in the same manner as traditional generation resources.”⁵ We previously covered other FERC actions to address the potential impact of such resources here.

On October 25, 2023, the Federal Energy Regulatory Commission (FERC) issued an order¹ that extended the deadline for electric transmission providers to comply with its Order No. 2023, “Improvements to Generator Interconnection Procedures and Agreements” (the Final Rule²). The new compliance filing deadline is Wednesday, April 3, 2024, or 210 calendar days from the Final Rule’s publication in the Federal Register on September 6, 2023. The previous deadline had been December 5, 2023, or 90 days from the publication date. The revised deadline applies to “all transmission providers, except for those with wholesale distribution access tariffs,” whose compliance filings are now due “within 90 calendar days of the date on which their relevant regional transmission organization or independent systems operator submits its compliance filing.”³ FERC clarified that the Extension Order “does not change or modify any other determination or other deadlines established by Order No. 2023, including the deadline for eligibility for interconnection customers to opt to proceed with a transitional serial study (for those interconnection customers tendered a facilities study agreement) or transitional cluster study (for those interconnection customers assigned a queue position) or to withdraw their interconnection requests without penalty (i.e., 30 calendar days after the transmission provider submits its initial compliance filing).”⁴

On September 6, 2023, the Federal Energy Regulatory Commission’s (FERC or the “Commission”) Order No. 2023, “Improvements to Generator Interconnection Procedures and Agreements” (the “Final Rule”), was published in the Federal Register. The Final Rule had been issued by FERC on July 28, 2023, and requests for rehearing and clarification have already been filed with the agency by numerous transmission owners, generation developers, trade associations and regional transmission organizations (RTOs) and independent system operators affected by the Final Rule. Akin hosted a webinar on the Final Rule on August 3, 2023, providing analysis on the Final Rule’s requirements to (1) increase how quickly requests in the interconnection queue are processed, (2) replace the previous “first-come, first-served” process with a “first-ready, first-served” cluster study process and (3) incorporate technological advancements in generation and transmission into the interconnection process. The published version of the Final Rule establishes an effective date for Order No. 2023 of November 6, 2023. 

The Federal Energy Regulatory Commission (FERC or the “Commission”) recently issued Order Nos. 896 and 897 (collectively, the “Reliability Orders”),¹ which are two final rules designed to bolster electric grid reliability during extreme heat and cold weather events that “may cause unacceptable risk to life and economic harm,” especially during periods of unexpectedly high demand on the Bulk-Power System.²

On July 3, 2023, the Federal Energy Regulatory Commission (FERC or the Commission) issued an order confirming a more aggressive posture towards scrutinizing the ability of investors to exercise control over public utilities through representation on the board of a public utility or a company holding an interest in a public utility. The order concerned a request for rehearing of an October 2022 order in Evergy Kan. Cent., Inc.¹ that held that an investor will be deemed to be affiliated with a public utility if an individual accountable to that investor is appointed to the board of the public utility or the public utility’s holding company, even if the investor holds less than 10% of the voting interests in the company at issue or the voting rights of the shares held by the investor have been restricted. That determination represented a marked departure from FERC’s historic approach to evaluating affiliation, in which FERC generally has accepted that investors holding an interest of less than 10% do not control a public utility and, as a result, should not be considered to be an affiliate of the utility.

On January 19, 2023, the Federal Energy Regulatory Commission (FERC or the “Commission”) issued a Final Rule directing the North American Electric Reliability Corporation (NERC) to file for FERC review new or modified Reliability Standards that require internal network security monitoring (INSM) within trusted Critical Infrastructure Protection (CIP) network environments for certain Bulk Electric System (BES) Cyber Systems.¹ The Final Rule, as we described here when first proposed, targets a gap in the current NERC CIP Reliability Standards. Specifically, its main goal is to ensure that registered entities adopt INSM capable of addressing “situations where vendors or individuals with authorized access are considered secure and trustworthy but could still introduce a cybersecurity risk, as well as other attack vectors that can exploit this gap,”² and to “increase the probability of early detection and allow for quicker mitigation and recovery from an attack.”³ Such was the style of the SolarWinds attack in 2020,⁴which FERC said shows “how an attacker can bypass all network perimeter-based security controls traditionally used to identify the early phases of an attack” by leveraging the technology of a trusted vendor.⁵