FERC on Tuesday rejected a request to include pump storage facilities in ISO-NE’s Inventoried Energy Program saying it was outside the scope of the RTO’s recent compliance filing prompted by an appellate remand (ER19-1428-006).

Last June, the D.C. Circuit Court of Appeals found ISO-NE’s Inventoried Energy Program, to go into effect for winter 2023, to be unjust because it would unfairly pay nuclear, coal, biomass and hydroelectric resources for fuel storage (ER19-1428-005). The program pays generators for maintaining up to three days’ worth of potential energy (e.g., fuel) on-site that can be converted into electricity at ISO-NE’s direction.

The court said FERC had failed to consider protestors’ argument that including those resources was improper because they were unlikely to change their behavior in response to the program’s incentives.

“Acceptance of compensation incentives — for a distinct category of generators that are unlikely to respond to those incentives — was arbitrary and capricious,” the court said. (See Court Strikes a Blow to ISO-NE Winter Plan.)

FERC in September issued an order on remand implementing the D.C. Circuit ruling and ordering the RTO to revise its tariff to eliminate those resources from the program. (See FERC Seeking Solutions for New England Winter Reliability.)

The RTO filed the requested tariff revisions in November. But it also noted that stakeholders — supported by Brookfield Energy Marketing, the National Hydropower Association and RENEW Northeast — had filed an amendment to the changes carving out pump storage projects from other hydropower and allowing it to participate in the program.

They said that because pumped hydro resources participate in the markets as binary storage facilities, a subcategory of electric storage facilities (which are permitted to participate in the Inventoried Energy Program), pumped hydro should be allowed to participate regardless of the D.C. Circuit’s ruling that hydroelectric resources are not permitted.

ISO-NE said it did not view the amendment as consistent with the D.C. Circuit’s order but would not oppose including pumped hydro in the program if FERC determined that the amendment met the compliance mandates.

In approving the RTO’s tariff revisions, the commission rejected the amendment as beyond the scope of the compliance filing. “The only question before the commission in this proceeding is whether ISO-NE’s filing complies with the directives of the September 2022 order. Protesters are effectively arguing that the September 2022 order should be modified to exclude a subset of hydroelectric resources from the compliance directive. These protests are essentially late-filed requests for rehearing of the September 2022 order.”