By Michael Yuffee and Ryan Norfolk

Law360 (April 15, 2020, 4:53 PM EDT )

Michael Yuffee

Ryan Norfolk

On April 2, the Federal Energy Regulatory Commission issued a suite of orders designed to (1) facilitate the efficient performance of commission business and (2) provide additional flexibility to the regulated energy sector during the ongoing COVID-19 pandemic. The orders address the following matters.

Temporary Delegation of Further Authority to OEMR for Action on Uncontested Requests and Petitions 

On March 19, FERC provided notice that it would grant waivers of commission orders, regulations, tariffs and rate schedules, as appropriate, to provide relief from the impacts of COVID-19.

In order to ensure that the commission moves quickly and efficiently on such waiver requests, the commission has issued a companion order in Docket No. AD20-13-000, temporarily delegating authority to the director of the Office of Energy Market Regulation, or the director's designee, to take appropriate action on uncontested requests or petitions filed pursuant to:

• Section 4 of the Natural Gas Act;

• Section 205 of the Federal Power Act; and

• Section 6(3) of the Interstate Commerce Act that request such prospective waivers of requirements set forth in commission orders, regulations, tariffs, rate schedules and service agreements noted in the March 19 order.

The filed rate doctrine and the rule against retroactive ratemaking still apply. This delegation of authority is effective until June 1.

Prioritization of Requests for Relief Necessary to Ensure Business Continuity 

In a policy statement issued in Docket PL20-5-000, the commission moved to assure regulated entities that it will expeditiously review and act on requests for relief in response to the national emergency caused by COVID-19, and that it will give its highest priority to processing such filings, including requests for cost recovery, in order to ensure business continuity for regulated entities' infrastructure during this crisis. 

Waiver of In-Person Meetings and Document Notarization Requirements

In order to facilitate social distancing during the COVID-19 epidemic, FERC issued an order in Docket No. EL20-37-000, pursuant to Federal Power Act Section 206, that temporarily grants a blanket waiver of all tariff requirements to hold meetings in-person and/or to provide or obtain notarized documents.

FERC specified that entities should rely on alternatives such as electronic signatures and secure telephonic or web-based meeting capabilities. This blanket waiver will remain in place through Sept. 1.

Extension of Uplift and Operator Initiated Commitment Report Deadlines 

By order issued in Docket No. RM17-2-000, the commission has extended the deadline for each commission-approved regional transmission organization, or RTO, and independent system operator, or ISO, to publicly post reports regarding uplift and operator initiated commitments.

Under the order, the deadline for reports that would have been required to be posted between April and September is extended to Oct. 20. In granting the extension, the commission noted that RTOs/ISOs are not prohibited from posting reports before Oct. 20, and may also seek further extension of time if needed.

Delegation of Authority to Grant Extensions of Time and Waivers for FERC Form No. 552 and FERC-730

By order issued in Docket No. RM20-13-000, the commission revised its regulations to delegate authority under Title 18 Code of Federal Regulations Section 375.315 to the director of the Office of Energy Policy and Innovation to take action on motions for extension of time to file and requests for waiver of the requirement to file FERC Form No. 552, for annual reports of natural gas transactions, and FERC-730, for reporting transmission investment activity.

The delegation extends to the director's designee, as appropriate, and applies only to uncontested matters. The order also removes the authority previously delegated to the Office of Enforcement to grant such motions for extension of time or waiver.

Extension of Deadlines and Grant of Waivers for Certain FERC Forms and Filings 

By order issued in Docket Nos. AD20-11-000 and ER02-2001-000, and as announced in a statement by FERC Chairman Neil Chatterjee, the commission extended the deadline for filing FERC Form Nos. 60, 61 and 552, and Electronic Quarterly Report Form-920 until June 1.

In a separate order in Docket No. AD20-11-000, the commission granted the following timeline modifications and waivers for parties impacted by the COVID-19 emergency: 

• The deadline for interventions, protests or comments to a complaint, and briefs on and opposing exceptions to an initial decision, is extended through May 1;

• Regulations governing the form of filings are also waived through May 1; and

• The answer period for motions filed with the commission requesting an extension of time due to emergency conditions related to COVID-19 is shortened to three business days.

The commission also noted that it will consider requests for shortened comment periods for waivers of requirements in commission orders, regulations, tariffs, rate schedules and service agreements in response to emergency conditions related to COVID-19 from 21 days to as short as 5 days.

Such requests will be acted upon as expeditiously as possible. These waivers and modifications reflected in the order do not apply to proceedings currently before administrative law judges.

Preliminary Analysis

The actions described above reflect ongoing, evolving efforts to ensure that the regulatory mandates of the commission are addressed efficiently and effectively, while granting the regulated energy sector flexibility in responding to regulatory obligations in order to focus on the reliable, uninterrupted operation of critical energy infrastructure during this unprecedented moment in history.

While these actions, and those taken by the commission previously, are designed to provide market participants with the tools to weather this challenging time, it remains critical that market participants continue to prioritize regulatory compliance at all levels.

Self-help efforts that are not undertaken through the channels provided by the commission, or attempts to exploit these mechanisms for financial gain, are likely to be met with significant scrutiny from FERC — and potentially other regulatory and enforcement bodies, including the Commodity Futures Trading Commission and the U.S. Department of Justice. 

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Michael A. Yuffee is a partner and Ryan C. Norfolk is of counsel at Winston & Strawn LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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