FERC approves energy storage tariffs

U.S. utility regulators have approved the first two regional implementations of a landmark 2018 order designed to remove barriers to the participation of electricity storage in wholesale markets.

In 2018, the Federal Energy Regulatory Commission issued its Order No. 841, requiring each organized power market to revise its tariff to establish a "participation model" for electric storage resources in the capacity, energy and ancillary service markets. The rule requires each market's participation model to include market rules that recognize the physical and operational characteristics of electric storage resources and facilitate their participation in those markets. The Commission later affirmed the rule, through its Order No. 841-A.

Last week, the Commission issued two orders approving Order No. 841 compliance filings by Southwest Power Pool, Inc. and by PJM Interconnection. The Commission generally found that the SPP and PJM tariff revisions complied with the new rule, and largely accepted their filings. For example, the Commission found that both proposals "generally enable electric storage resources to provide all services they are capable of providing; allow electric storage resources to be compensated for those services in the same manner as other resources; and appropriately recognize the unique physical and operational characteristics of electric storage resources."

However, the Commission also provided directives for further compliance filings by SPP and PJM to be made within 60 days. The Commission found that while both filed tariffs generally satisfy Order No. 841’s directive allowing electric storage resources to de-rate their capacity to meet minimum run-time requirements, neither tariff included minimum run-time requirements for resource adequacy and capacity, respectively. Because "such requirements affect rates, terms and conditions of service," the Commission initiated proceedings under section 206 of the Federal Power Act to address the specific issue of minimum run-time requirements.

In a pair of separate statements (on SPP and on PJM), Commissioner McNamee concurred with the orders insofar as they found compliance with the Commission's orders and regulations. But Commissioner McNamee said, "I write separately, however, to express my continuing concern that the Commission exceeded its statutory authority under the Federal Power Act, and should have, at the very least, provided states the opportunity to opt-out of the participation model created by the Storage Orders." Commissioner McNamee also reiterated jurisdictional concerns he had previously raised in a partial concurrence to and partial dissent from Order No. 841-A, "to the extent the Commission’s Storage Orders exercised authority over the distribution system and behind-the-meter."

Other organized wholesale market operators, such as ISO New England, Inc., are also adopting tariff revisions to comply with Order No. 841, to enhance the ability of electric storage facilities to participate in regional wholesale electricity markets.

FERC electric storage policy statement

U.S. energy regulators have issued a policy statement addressing how electric storage resources may provide services at a mix of cost-based and market-based rates.  The Federal Energy Regulatory Commission's January 19, 2017 policy statement on storage provides insight into how the Commission views its role in regulating the rates at which energy storage would be compensated -- but was accompanied by a dissenting view expressed by Commissioner LaFleur.   The result is a mix of both greater certainty and continued debate.

Electricity storage is a growing industry, both in terms of installed capacity and its capability to flexibly support the grid.  Today's electric storage resources can both charge and discharge electricity to and from the grid.  Moreover they can provide various services to multiple entities -- for example, consumers, grid operators, or transmission and distribution utilities -- and can switch nearly instantaneously between modes of operation or services provided.  In these ways, electric storage resources share some functions of consumer load, generation, transmission, and distribution. 

Some of these functions -- e.g. sales of electric energy at wholesale in an organized market -- may be compensated at market-based rates.  But other functions of energy storage could be compensated at cost-based rates under federal law -- perhaps functioning as a transmission asset, compensated through transmission rates.  Thus it's possible that a particular energy storage resource -- think a battery attached to the electric grid, perhaps sited at a factory or other consumer's location -- might be compensated for its operations under both cost-based and market-based rates.

This is a good thing, according to the Federal Energy Regulatory Commission.  According to the January 19, 2017 policy statement, "Enabling electric storage resources to provide multiple services (including both cost-based and market-based services) ensures that the full capabilities of these resources can be realized, thereby maximizing their efficiency and value for the system and to consumers."

But previous proceedings before the Federal Energy Regulatory Commission have exposed some concerns about allowing electric storage resources to recover costs through both cost-based and market-based rates concurrently.  As described by the Commission, these include "double recovery of costs to the detriment of cost-based ratepayers, potential for adverse competitive impacts in wholesale electric markets to the detriment of other competitors, and the need for independence of regional grid operators from market participants."

With respect to utilities subject to its jurisdiction, the Commission's recent policy statement, "Utilitzation of Electric Storage Resources for Multiple Services When Receiving Cost-Based Rate Recovery," provides guidance regarding these issues.  It details possible approaches for avoiding double recovery of costs.  The Commission notes that with regard to adverse market impacts, it "is not convinced there will be a detriment to other market competitors."  The policy statement also offers guidance on how grid operators and electric storage owners or operators should interact, to ensure independence as required by Commission policy.

Commissioner LaFleur issued a dissenting opinion, while nevertheless calling storage "an important and promising resource that warrants Commission attention to ensure that our markets are appropriately adapted to recognize storage’s unique characteristics and contributions."  While expressing an openness "to potential structures that compensate storage providing transmission service at a cost-based rate while participating in the wholesale markets", she expressed concern "about the broad rationale for this approach put forth in the Policy Statement," which she called "both flawed in its conclusions and premature in its timing."  In particular her dissent focused on what she described as "the Policy Statement’s sweeping conclusions about the potential impacts of multiple payment streams on pricing in wholesale electric markets" -- and whether it might have implications for resources other than storage that receive multiple payment streams.  She also disagreed with the Commission's decision to issue the policy statement separate from its pending Notice of Proposed Rulemaking on the participation of electric storage in wholesale markets.

Both the majority policy statement and Commissioner LaFleur's dissent shed light on how the Commission approaches energy storage rate issues.  Storage seems universally considered worth investigating or supporting, but disagreement remains within the Commission with respect to some aspects of how storage resources should be compensated (as well as procedural issues related to the Commission's consideration of these questions).  Nevertheless the policy statement does provide guidance and clarification into how a majority of the Commission views the compensation of storage resources under both cost- and market-based rate structures -- while also framing future discussions over how storage resources will be integrated into markets.

US Supreme Court upholds wholesale demand response

The Supreme Court of the United States has issued an opinion upholding regional electricity grid operators' ability to operate wholesale demand response programs under federal authority.  In that opinion, FERC v. Electric Power Supply Assn., the Supreme Court reversed a lower court's decision invalidating the Federal Energy Regulatory Commission's regulation of electricity demand response.   While further evolution of demand response will continue, the Supreme Court's 6-to-2 ruling puts regional wholesale demand response programs back on surer footing after the uncertainty injected by the lower court's previous ruling.  A grid portfolio including some degree of demand response can provide beneficial environmental, reliability, and economic effects compared to pure generation.  It appears relatively more likely that existing regional wholesale demand response programs may continue to operate under federal authority, and relatively less likely that a new state-driven demand response paradigm will arise.

As described in the Supreme Court opinion, wholesale electricity demand response programs pay consumers for commitments to reduce their consumption of electricity during peak demand periods or other times of scarcity or high prices.  For about 15 years, wholesale market operators have increasingly adopted wholesale demand response programs, with the blessing of both Congress and the FERC.  In 2011, the FERC issued its Order No. 745, establishing a rule requiring market operators to pay the same price to cost-effective demand response providers for conserving energy as to generators for producing it. 

But that order was challenged by an association of generators, among others.  In May 2014, the D.C. Circuit Court of Appeals issued a ruling in Electric Power Supply Association v. Federal Energy Regulatory Commission vacating Order No. 745.  Its chief logic was that FERC lacked authority to issue the order on jurisdictional grounds -- because in the lower court's view, Order No. 745 directly regulates the retail electric market.  Under the Federal Power Act, FERC is authorized to regulate "the sale of electric energy at wholesale in interstate commerce," but cannot regulate "any other sale" (i.e. any retail sale) of electricity.

But today's Supreme Court ruling held that the Federal Power Act does provide FERC with the authority to regulate wholesale market operators' compensation of demand response bids.  The Court divided its analysis of this point in three parts.

First, the Supreme Court held that the practices at issue directly affect wholesale rates.  In the Court's words, "Wholesale demand response is all about reducing wholesale rates; so too the rules and practices that determine how those programs operate."

Second, the Supreme Court noted that FERC has not regulated retail sales.  "Here, every aspect of FERC's regulatory plan happens exclusively on the wholesale market and governs exclusively that market's rules.  The Commission's justifications for regulating demand response are likewise only about improving the wholesale market."  Putting the first and second sets of conclusions together, the Court found that the rule established by Order No. 745 complies with the plain terms of the Federal Power Act.

Third, the Court noted that adopting a contrary view would conflict with the core purposes of the Federal Power Act: "The FPA should not be read, against its clear terms, to halt a practice that so evidently enables FERC to fulfill its statutory duties of holding down prices and enhancing reliability in the wholesale energy market."

The Supreme Court also addressed an alternative holding by the D.C. Circuit Court that the Order No. 745 compensation scheme is arbitrary and capricious under the Administrative Procedure Act.  The Supreme Court noted that its "important but limited role" in reviewing FERC's decision "is to ensure that FERC engaged in reasoned decisionmaking."  Noting FERC's detailed explanation of its choice to compensate demand response providers at LMP, the same price paid to generators, and its lengthy responses to contrary views, the Supreme Court held that "FERC's serious and careful discussion of the issue satisfies the arbitrary and capricious standard."

Justice Kagan delivered the Court's opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Sotomayor.   Justice Scalia filed a dissenting opinion, in which Justice Thomas joined, noting his belief that the Federal Power Act prohibits the FERC from regulating the demand response of "retail purchasers of power."  Justice Alito did not participate in the case.

The case now returns to the D.C. Circuit for "further proceedings consistent with this opinion." If Order No. 745 stands and FERC retains jurisdiction over the compensation paid to wholesale demand response market participants, it seems likely that existing regional wholesale demand response programs will continue to operate under federal authority.  As the Supreme Court found, these wholesale demand response programs can provide significant consumer savings when properly implemented.  How will demand response continue to evolve in the wake of FERC v. EPSA?  How does this decision reshape the boundary between wholesale (federal) and retail (state) jurisdictions?  What's next for demand response?

Exporting compressed natural gas from the US

In a divided opinion, the Federal Energy Regulatory Commission has found that it does not have jurisdiction over facilities proposed by Emera CNG, LLC to compress natural gas for export to the Bahamas by ship.

Natural gas is an important fuel used globally for electric power generation, heating, and industry.  Throughout most of the U.S., an abundant supply of natural gas means domestic pricing for gas is lower than overseas.  This creates a potentially profitable opportunity to export natural gas from the U.S., if regulatory conditions allow.

Natural gas can be exported by pipeline as a gas, or by truck or ship as either compressed natural gas (CNG) or liquefied natural gas (LNG). Liquefying natural gas enables massive quantities of gas to be transported anywhere in the world, but requires the construction of expensive facilities to liquefy and regasify the fuel.  The federal Natural Gas Act gives the Federal Energy Regulatory Commission jurisdiction over the siting and construction of most LNG facilities in the U.S., and authorizes FERC to issue certificates of public convenience and necessity for LNG facilities engaged in interstate natural gas transportation by pipeline.  For example, Dominion Cove Point LNG, LP recently secured the FERC's approval for its Cove Point LNG export facility.

By comparison, compressing natural gas to high pressures is a relatively lower-cost way to improve the energy density of the fuel and reduce its transportation costs, albeit not to the degree of LNG.  CNG exports are already happening, and may soon increase.

Emera recently proposed to construct a CNG compression and truck-loading facility at the existing Port of Palm Beach in Riviera Beach, Florida, in order to export CNG to the Commonwealth of the Bahamas.  At the site, Emera would draw natural gas from the Riviera Lateral, a pipeline owned and operated by Peninsula Pipeline Company.  Emera would then dehydrate and compress the gas to fill containers that would be loaded onto trucks.  The proposed CNG facility would initially be capable of loading 6 million cubic feet per day (MMcf/d) of CNG, with expansion capabilities up to 25 MMcf/d.  Once loaded onto trucks, Emera will haul the containers to a berth about a quarter mile away at the Port of Palm Beach.  At the port, the containers will be loaded onto a roll-on/roll-off ocean-going carrier and shipped to Freeport, Grand Bahama Island, where the containers would be unloaded, the CNG decompressed and injected into a pipeline for transport to electric generation plants owned and operated by Emera affiliate Grand Bahama Power Company and other customers on Grand Bahama Island.

To reduce regulatory uncertainty, Emera petitioned the Federal Energy Regulatory Commission for a declaratory order that its project will not be subject to the Commission’s jurisdiction under the Natural Gas Act.  Last month, a majority of the FERC Commissioners found that the construction and operation of the CNG facility described by Emera would not be subject to FERC's authority over natural gas exports under the Natural Gas Act.  In particular, the majority opinion held that Emera’s facilities to compress and load CNG onto trucks are not jurisdictional export facilities.

In reaching this conclusion, the majority found that the proposed CNG facilities were unlike the border-crossing pipelines and coastal LNG terminals that the Commission traditionally has regulated under section 3 as import/export facilities, and more like existing, unregulated facilities that deliver LNG into trucks which are subsequently driven across the border into Canada or Mexico.  Indeed, the opinion cites the example of Xpress Natural Gas, which has a CNG plant in Maine that receives gas from an interstate pipeline and loads CNG containers onto trucks for delivery to customers in Canada and in New England.  The Commission does not regulate the CNG facility under either section 3 or 7, nor does it exercise jurisdiction over the trucks’ passage across the border under section 3.

The majority opinion similarly found that because Emera said that all of the natural gas to be compressed at Emera’s planned facility will be exported in foreign commerce to the Commonwealth of the Bahamas, the Commission’s section 7 jurisdiction over transportation and sales of gas for resale in interstate commerce would not be implicated by Emera’s proposal.

Notably, new Commissioner Norman Bay dissented from the majority opinion.  Noting language in section 3 of the Natural Gas Act giving FERC jurisdiction over natural gas exports, Commissioner Bay's dissent describes the majority’s argument as that because the CNG will leave Emera’s facility by truck and travel a quarter of mile before being loaded onto ocean-going carriers for export – rather than by a pipeline running across a border or to a tanker – the facility is not an “export facility” under section 3 of the Natural Gas Act. In Commissioner Bay's words, "It cannot be that the Commission’s jurisdiction turns on this 440-yard truck journey."

With FERC regulation under the Natural Gas Act behind it, Emera will still need other approvals to export CNG; for example, Emera has filed an application with the U.S. Department of Energy's Office of Fossil Energy for authorization under Section 3 of the Natural Gas Act for export of natural gas.

What role will CNG exports play in the U.S.'s energy future?