By Rich Heidorn Jr.

A bipartisan energy bill being debated by the Senate is providing FERC critics an opportunity to seek changes to the commission’s quorum rules and authority.

Democratic senators have proposed at least seven FERC-related amendments to the American Energy Innovation Act (S. 2657) introduced by Sens. Lisa Murkowski (R-Alaska) and Joe Manchin (D-W.Va.), the top members of the Senate Energy and Natural Resources Committee. (See Murkowski, Manchin Offer Bipartisan Energy Bill.)

The amendments would end tolling orders that can indefinitely delay judicial review of commission rulings; create a consumer advocate’s office; seek to improve interregional transmission planning; and increase public input on natural gas pipeline siting.

These are in addition to two amendments seeking to reverse the Dec. 19 order expanding PJM’s minimum offer price rule (MOPR) to state-subsidized resources and the Feb. 20 order narrowing the resources exempt from NYISO’s buyer-side market power mitigation rules in southeastern New York. (See related story, Senate Dems Seek to Undo PJM, NYISO Rulings.)

Cloture Vote Fails

Late Monday, however, the entire bill appeared in jeopardy when the Senate refused to end debate following a dispute over Democrats’ attempt to add language on energy efficiency and reducing the use of hydrofluorocarbons (HFCs) in refrigerators and air conditioners, The Hill reported.

Senate Minority Leader Chuck Schumer (D-N.Y.) also threatened to filibuster the bill over Republicans’ opposition to an amendment on climate change.

“I am incredulous the Senate did not vote to invoke cloture … after a year of regular process in the Energy and Natural Resources Committee,” Murkowski said in a statement Monday night. “It is beyond frustrating to have our bill, which contains priorities from more than 70 Senators, held up by an unrelated dispute that was never part of our discussions in the lead-up to this floor process. We will regroup and look for a path forward but finding one will require members to be more reasonable and accommodating than they have been in the last week, and certainly more so than they were today.”

Reversing PJM, NYISO Rulings

Two proposed amendments target FERC’s recent rulings in PJM and NYISO.

Amendment 1447 would expand Section 201b(1) of the Federal Power Act — which prevents FERC from regulating generation or local distribution — by also prohibiting the commission from regulating “state regulations, including financial incentives or fees, promoting the development of facilities for the generation of electric energy, unless the regulation directly targets a wholesale rate or charge subject to the jurisdiction of the commission.”

It was sponsored by Schumer, Sen. Kirsten Gillibrand (D-N.Y.), Maryland Democrats Chris Van Hollen and Ben Cardin and Pennsylvania Democrat Bob Casey.

In addition, Van Hollen, Casey, Sen. Cory Booker (D-N.J.) and Sen. Sheldon Whitehouse (D-R.I.), proposed amendment 1437 to revise FPA Section 205. It would bar FERC from approving a rate that “prevents a covered state public policy resource from being able to clear in a capacity auction or an energy market auction.”

Tolling Orders

Amendment 1448 by Schumer, Gillibrand, Cardin and Van Hollen would amend the FPA and Natural Gas Act to prevent FERC from indefinitely delaying judicial review of FERC decisions.

The FPA and NGA currently deem rehearing requests as denied if the commission fails to act within 30 days. FERC routinely issues tolling orders — granting rehearing “for the limited purpose of further consideration” — to give itself more time to rule on the merits. The D.C. Circuit Court of Appeals will hear oral arguments March 31 in a case challenging the practice. (See Consumer Advocates Appeal MOPR Order to DC Circuit.)

The amendment would require the commission to rule on the merits of rehearing requests within 30 days after issuing a tolling order to meet the current 30-day deadline. FERC’s failure to issue a ruling on the merits by the deadline would mean the rehearing request was denied and is ripe for review by the federal courts.

Quorum

Schumer also filed amendment 1449, which would prevent the majority political party on the commission from having more than a one-member voting advantage over the minority party. Current law limits the majority to three seats on the five-member commission.

FERC currently has two Republicans and one Democrat, but the margin could grow to 3-1 with the addition of Republican James Danly, currently the commission’s general counsel. On Tuesday, the Senate ENR Committee voted 12-8 to send Danly’s nomination to the commission for consideration by the full Senate.

Democrats are upset that President Trump has failed to name a nominee for the seat left open by the departure of Democrat Cheryl LaFleur in August. Schumer is backing Allison Clements, clean energy markets program director for the Energy Foundation, for the Democratic seat. (See related story, Danly Re-advances, but not Without Drama.)

Interregional Planning

Sen. Martin Heinrich (D-N.M.) proposed amendment 1330 to order FERC to complete a rulemaking within two years to increase the effectiveness of interregional transmission planning.

It would require FERC to assess the effectiveness of existing planning processes at identifying interregional transmission projects providing “economic, reliability, operational and public policy benefits.” The commission would have to consider changes to “ensure that efficient, cost-effective and broadly beneficial interregional transmission solutions are selected for construction” while considering the public interest; the integrity of markets; the protection of consumers; and cost allocation methodologies that “reflect the multiple benefits provided by interregional transmission solutions.”

Siting of Interstate Natural Gas Pipelines

Amendment 1386 by Sen. Jeanne Shaheen (D-N.H.) cites a 2013 Government Accountability Office report that quoted public interest groups and state officials who said members of the public need more opportunities to comment on proposed pipeline projects.

It calls on FERC to “prioritize meaningful public engagement and coordination with state and local governments to ensure its processes remain transparent and consistent; and to ensure the health, safety and security of the environment and affected communities.”

Office of Public Participation and Consumer Advocacy

Shaheen also proposed amendment 1387 to create an Office of Public Participation and Consumer Advocacy within FERC.

It would have authority to intervene in administrative, regulatory or judicial proceedings on behalf of energy customers regarding natural gas siting, infrastructure development and the rates, charges, prices, tariffs or service of public utilities and natural gas companies under FERC jurisdiction. It would also be able to submit amicus briefs to federal courts or regulatory agencies.

The office would take input from a Public and Consumer Advocacy Advisory Committee subject to the Federal Advisory Committee Act.

The Senate began debate on the Murkowski-Manchin bill Wednesday. On Thursday, Murkowski filed a modified substitute amendment to S. 2657 (originally a geothermal bill) that included her bill and 18 amendments — nine each from Republican and Democratic senators.

Among them were calls for a study on putting microgrids in wildfire risk areas; adding reduction of transportation-related carbon emissions to state energy conservation plans; a National Academies study of net metering; a program to prepare veterans for careers in the energy industry; and an R&D program to improve gas turbine efficiency.

None of the FERC-related measures was included.

“Our bill now addresses priorities from nearly 70 members of the Senate,” Murkowski said in a statement. “We have made it even better than it was, and now we need to move on to our final steps.”