On May 19, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued a Final Policy Statement clarifying FERC’s implementation of hold harmless commitments in Federal Power Act (FPA) Section 203 applications seeking change of control authorization. The Final Policy Statement largely tracks a Proposed Policy Statement that was issued in January of 2015.

For FERC approval under Section 203, a transaction must be “consistent with the public interest.” The Commission considers three factors in determining whether a transaction meets this requirement: the effect of the transaction on (1) competition; (2) rates; and (3) regulation. The Policy Statement relates to the second prong of FERC’s analysis (the effect on rates).
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On December 2, 2014, the D.C. Circuit issued its decision in Midland Power Cooperative and National Rural Electric Cooperative Association v. Federal Energy Regulatory Commission, No. 13-1184, finding that it does not have jurisdiction to review Federal Energy Regulatory Commission (FERC) decisions under Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA)
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June 13, 2014.  The Court of Appeals for the District of Columbia Circuit (Court), in a 2 to 1 decision in Electric Power Supply Ass’n v. FERC et al.,[1] vacated the Federal Energy Regulatory Commission’s (FERC) Order 745 in its entirety on May 23, 2014.  Order 745 standardized compensation paid to demand response providers in Regional Transmission Organization (RTO) and Independent System Operator (ISO) wholesale energy markets.  The rule requires RTOs/ISOs to pay demand response providers the locational marginal price (LMP) under certain circumstances. The Court’s majority opinion is sweeping in scope and has implications that go beyond the price paid for demand response in RTO/ISO markets.  FERC recently indicated that it will ask the full Court of Appeals for an en banc review of the decision.  The decision can be found here.
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