FERC acts on 2017 tax cuts

Monday, March 19, 2018

Federal utility regulators have taken a portfolio of actions in response to recent changes to U.S. tax law which reduced the tax rates applicable to many electric utilities and pipeline companies. Some rates for use of infrastructure will be reduced automatically, while regulators prompted others to explain why they should not be reduced to reflect the tax law changes. At the same time, regulators have opened an inquiry and proposed a rulemaking to address further aspects of the 2017 federal tax law change.

Late last year, Congress enacted the Tax Cuts and Jobs Act of 2017. That law amended U.S. tax law in a variety of ways. Among other things, the 2017 tax law changes reduced the federal corporate income tax rate from a maximum 35 percent to a flat 21 percent rate, effective January 1, 2018.

Many electric utilities and natural gas and oil pipeline companies stand to benefit from this tax reduction in the form of reduced income tax expense going forward, as well as a reduction in accumulated deferred income taxes on the books of rate-regulated companies. Where tax expense decreases, so does the cost of service.

Rates for use of some federally regulated energy infrastructure are set based on cost of service. On March 15, 2018, the Federal Energy Regulatory Commission took a series of actions to address the effect of the tax law changes on its regulated industries including electric transmission companies, interstate natural gas pipelines, and oil pipelines. According to the Commission, its actions “recognize the specific regulatory and operating parameters that must be addressed differently for each of the industries it regulates.”

Transmission rates for most FERC-regulated utilities automatically adjust with changes in the tax rates based on a formula whose inputs are updated annually or on some other regular cycle. For these utilities, a reduction in corporate income tax means a reduction in rates, although the ratemaking process means there can be a lag in time before rate reductions take effect.

But in some cases, utility tariffs provide for rates are either stated as a fixed number, or the formula includes a fixed tax rate. The Commission identified 48 companies whose transmission tariffs specifically reference tax rates of 35 percent. In a pair of show-cause orders issued under the Federal Power Act -- one for utilities with stated rates, and one for utilities with formula rates referencing 35 percent -- the Commission directed these companies to propose revisions to their transmission rates or show why they should not do so. It also issued two waivers allowing certain utilities mid-year rate adjustments to reflect the new tax law.

Interstate natural gas pipelines typically have stated rates for their services. These rates are approved by the Commission in a rate proceeding under Natural Gas Act sections 4 or 5 and remain in effect until changed in a subsequent section 4 or 5 proceeding. To revise its practices with respect to natural gas pipelines, the Commission issued a Notice of Proposed Rulemaking that would allow it determine which pipelines under the Natural Gas Act may be collecting unjust and unreasonable rates in light of the corporate tax reduction and the Commission’s recently revised policies on income tax allowance. Under the rule proposed by the Commission, interstate pipelines would need to file a one-time report called “FERC Form No. 501-G” describing the rate effect of these changes. In addition to filing the one-time report, each pipeline would have four options: a pro rata rate reduction, a rate settlement or case, an explanation why no rate change is needed, or merely filing the FERC report and letting the Commission decide if further action is required.

While cost-of-service ratemaking typically applies to public utilities and interstate natural gas pipelines, most oil pipelines set their rates using indexing. With respect to oil pipelines regulated by the FERC, the Commission said it will address tax changes in the 2020 five-year review of the oil pipeline index level.

Concurrently, the Commission opened an inquiry into the effect of the Tax Cuts and Jobs Act of 2017 on all jurisdictional rates, including whether the Commission should address certain changes relating to accumulated deferred income taxes and bonus depreciation. In a presentation to the Commission, staff described this Notice of Inquiry as "a vehicle to help the Commission build a record to determine whether additional action is needed."

In a separate policy statement and order issued on March 15, the Commission revised its policies to disallow income tax allowance cost recovery in MLP pipeline rates.

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