FERC disallows MLP pipelines' recovery of income tax allowance

U.S. energy regulators have revised their policies, and will no longer allow master limited partnership (MLP) interstate natural gas and oil pipelines to recover an income tax allowance in their cost-of-service rates. The Federal Energy Regulatory Commission issued its Revised Policy Statement on Treatment of Income Taxes following a 2016 federal court order addressing the topic.

At issue is the Commission's policy on how MLP pipelines may set their cost-based rates. As described by the Commission, an MLP is a partnership form in which units are traded on exchanges much like corporate stock. To be treated as an MLP for Federal income tax purposes, an MLP must receive at least 90 percent of its income from certain qualifying sources, including natural gas and oil transportation.

MLP pipelines are not corporations, but are pass-through entities. This means that MLPs are not taxed at the pipeline level; instead, for tax purposes, the partnership agreement allocates to each partner a share of the partnership’s taxable income, and each partner is personally responsible for paying income taxes on the partnership’s net taxable income.

From 2005 until a 2016 court ruling, the Commission's 2005 Income Tax Policy Statement allowed all partnership entities (including MLPs) to recover an income tax allowance for the partners' tax costs, much like a corporation receives an income tax allowance for its corporate income tax costs. Alongside this income tax policy, the Commission has used a discounted cash flow (DCF) methodology to determine the rate of return regulated entities need to attract capital.

In 2008, a pipeline MLP named SFPP, L.P. filed a cost-of-service rate increase to increase the rates for a line running between California and Arizona. Shippers protested the filed rates, including the interaction between (a) the Commission’s policy permitting an income tax allowance policy for partnership business forms (such as SFPP) and (b) the Commission’s DCF methodology used to determine a cost-of-service rate of return. The Commission eventually issued orders addressing issues in the case including the income tax allowance issue, which were challenged in court.

On appeal, in 2016 the United States Court of Appeals for the District of Columbia Circuit issued a decision known as United Airlines, Inc. v. FERC, 827 F.3d 122 (2016). In that case, the D.C. Circuit held that because both the partnership income tax allowance and the DCF ROE may include investors’ tax costs, permitting both may result in a double recovery, and remanded the case back to the Commission for further action.

This week, the Commission took that further action. It issued an order in the SFPP case denying that MLP an income tax allowance. More holistically, the Commission concurrently issued a Revised Policy Statement on Treatment of Income Taxes. In the revised policy statement, the Commission found that "an impermissible double recovery results from granting a Master Limited Partnership (MLP) pipeline both an income tax allowance and a return on equity pursuant to the discounted cash flow methodology."

FERC acts on 2017 tax cuts

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.

Will YieldCo structure change energy investments?

A relatively new way some utility companies are structuring their assets is drawing increased investment.  Dubbed the "YieldCo" model, the basic idea is that an established energy and utility companies will create a YieldCo subsidiary as a vehicle for holding investments in assets that produce sustained or increasing cash flow.  The YieldCo then pays out a relatively high percentage of its earnings to its shareholders as dividend yield.  Utility giant NRG Energy Inc. launched NRG Yield, Inc. this July, and other companies and market watchers have hinted that more YieldCo spinoffs may come in the near future.  Will the YieldCo model catch on?  How will it change the flow of money to and from energy projects?

The YieldCo model offers several kinds of benefits.  One is an answer to the question of renewable energy projects can compete during long-term periods of low power prices and reduced demand for electricity?  YieldCos are hoped to offer lower cost of capital for these projects.  Most often, they are conceived of as as holding electric generation projects whose output is fully contracted for, and older renewable and other assets that no longer qualify for special tax benefits.  The structure lets owners monetize assets without giving up control.  Meanwhile, the expected high and consistent yields can also attract capital and new investors, much as real estate investment trusts (REITs) or master limited partnership (MLPs) have done for other sectors. 

In the case of NRG Yield, its initial asset base featured a mix of conventional and distributed elcetric generation projects.  This mix included eleven utility-scale power plants and renewable projects, plus and two portfolios of distributed solar projects.  NRG Yield appears to have been a success, attracting $430 million in its initial public offering, with shares subsequently rising over 50% more in value. 

But despite NRG Yield's success since July, the structure is relatively novel as applied to electric generating infrastructure.  Downsides to the YieldCo structure include less favorable tax treatment than is available to REITs or MLPs (basically, a higher level of taxation), the cost of establishing a spinoff YieldCo, and increased exposure to interest rate risk.

If the YieldCo structure catches on, it could attract new investment capital to the renewable and conventional electric generation sector.  Will other companies follow NRG Yield's example?  NextEra Energy Inc. (owner of Florida Power & Light) is said to be exploring the concept, and is reportedly considering a portfolio of 1,500 to 2,000 MW of operating assets and another 1,200 MW in the development pipeline for contribution to a YieldCo in the next 4 years.  How big a shift we see to YieldCos remains to be seen, but for now excitement about the possibilities remains high. 

Oregon coal export plans stopped

The United States is one of the world’s top coal producers and exporters, but recent plans to add coal export capacity in the Pacific Northwest have not been fulfilled, as several proposed export terminals have been withdrawn.  Plans for yet another terminal have been scrapped, as yesterday Kinder Morgan Energy Partners LP canceled its proposed Clatskanie, Oregon project.  What does this mean for U.S. coal exports and for domestic pricing?

Kinder Morgan Energy Partners is a publicly traded master-limited partnership,or MLP, focused on pipeline infrastructure.  Along with fellow Kinder Morgan family companies Kinder Morgan, Inc., Kinder Morgan Management, LLC, and El Paso Pipeline Partners, Kinder Morgan claims to be the largest midstream and the third largest energy company (based on combined enterprise value) in North America.  The company owns or operates about 80,000 miles of pipelines and 180 terminals handling products like natural gas, refined petroleum products, crude oil, and carbon dioxide, as well as gasoline, jet fuel, ethanol, coal, petroleum coke and steel. It boasts of operating primarily “like a giant toll road”, and seeks to avoid commodity price risk through a fee-for-service model.

Most coal export capacity in the U.S. is located in the Midatlantic and Gulf Coast regions.  While Asia dominates the world coal import market, major markets for U.S. coal exports include Canada, Brazil, the Netherlands, and the European Union.  The principal West Coast coal export port is Los Angeles/Long Beach, with virtually no export capacity in the Pacific Northwest.  Kinder Morgan had proposed a terminal to be built at the Port Westward industrial park on the Columbia River near Clatskanie.  Yesterday project partner Port of St. Helens stated that Kinder Morgan had announced that it would not be pursuing the project.

Up to six Pacific Northwest coal export terminates have been proposed in recent years, but to date none have been built.  The Kinder Morgan proposal joins a series of other canceled Pacific Northwest coal export plans.  RailAmerica Inc. announced last year that it would not pursue a coal storage and export facility at Washington’s Port of Grays Harbor.  Earlier this year, the Oregon International Port of Coos Bay announced the end of its exclusive negotiating agreement between with Metropolitan Stevedoring Company (Metro Ports) to build a thermal coal and biomass export facility.  With the Kinder Morgan project gone, three potential terminals remain:  Australian  company Ambre Energy’s barge-loading operation at the port of Morrow and Port Westward, Millennium Bulk Terminals’ proposed $643 million dock west of Longview, and SSA Marine’s proposed $600 million coal terminal at Cherry Point.

Whether a coal export terminal will be developed in the Pacific Northwest is uncertain.  If not, it will continue to be difficult for coal produced in the western U.S. to reach the world’s largest demands for coal imports.  China, Japan, South Korea, India, and even the relatively small Chinese Taipei have led the demand for coal imports in recent years.  This opens significant economic activity. At the same time, environmentalists argue that new export projects would contribute to global pollution and greenhouse gas emissions.  Combined with the pressures of the commodity market for coal and other fuels, these dynamics may continue to block expanded West Coast export plans.  As is being argued over the issue of liquefied natural gas exports, whether coal exports are expanded could also have impacts for U.S. coal pricing.

Master Limited Partnerships for clean renewable energy

An organizational structure called Master Limited Partnerships has the potential to increase private-sector investment in clean energy. Master Limited Partnerships, or MLPs, benefit from a tax structure under which investors are taxed as partners but can trade their ownership stakes on securities exchanges much like corporate stock. Newly proposed federal legislation could extend this treatment to clean energy technologies.

MLPs offer their investors an attractive combination of tax advantages and liquidity. Profit from most publicly traded corporations is taxed twice, at both the corporate level and the shareholder level. By contrast, income from MLPs is taxed only at the shareholder level because it is treated as a partnership for tax purposes. Like Real Estate Investment Trusts or REITs, MLPs thus combine the tax benefits of a limited partnership with the liquidity of publicly traded securities.

Under federal law, MLP treatment is limited to enterprises generating at least 90 percent of their income from qualifying sources. These generally involve the use of natural resources, such as the production, processing or transportation of petroleum, natural gas, coal, timber, and other minerals. Since 1981, the use of the MLP structure has grown; estimates suggest that over 100 MLPs are currently being traded on major exchanges, with a total market valuation of about $445 billion.

Yesterday Congress introduced proposed bipartisan legislation that would extend this tax structure to clean energy technologies. The Master Limited Partnerships Parity Act, formally known as S.795: A bill to amend the Internal Revenue Code of 1986 to extend the publicly traded partnership ownership structure to energy power generation projects and transportation fuels, and for other purposes, is sponsored by Sen. Chris Coons, D-Del., along with co-sponsors Sens. Jerry Moran; R-Kan., Debbie Stabenow, D-Mich.; and Lisa Murkowski, R-Alaska. It has been referred to the Senate Committee on Finance.

The Master Limited Partnerships Parity Act would significantly broaden the scope of projects eligible for MLP treatment to include clean energy resources and infrastructure projects. These projects would include any energy technologies that qualify for the federal production tax credit or investment tax credit, such as wind, closed and open loop biomass, geothermal, solar, municipal solid waste, hydropower, marine and hydrokinetic, fuel cells, and combined heat and power. The bill would also open the MLP structure to advanced transportation fuels such as cellulosic, ethanol, biodiesel, and algae-based fuels, as well as energy-efficient buildings, electricity storage, carbon capture and storage, renewable chemicals, and waste-heat-to-power technologies.

Proponents hope that the act would stimulate investment in clean energy projects much as it has worked for other extractive natural resource infrastructure. At the same time, concern over the federal budget calls for serious consideration of measures that would reduce federal tax revenues. So far, the bill seems to have broad support and little outspoken opposition. If enacted, it could lead to an influx of investment capital into renewable and clean energy technologies.