Fifth Circuit finds that an electricity requirements contract is a “forward contract” exempt from Bankruptcy Code’s avoidance powers *

USA - October 11 2012
On August 2, 2012, the United States Court of Appeals for the Fifth Circuit held that a requirements contract for electricity is a forward contract for purposes of section 546(e) of the Bankruptcy Code and, therefore, settlement payments made under the contract are exempt from avoidance as preferences.

Co-authors: Peter M. Friedman, Kenneth W. Irvin, Audrey Aden Doline , Matthew J. Oliver.

---

FERC finds “more credible” a postage stamp new transmission cost allocation for PJM *

USA - April 9 2012
On March 30, 2012, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued an Order on Remand finding that the flow-based cost-allocation methodology used by PJM Interconnection, L.L.C. (“PJM”) is inadequate to determine and allocate costs associated with new high voltage transmission lines.

Co-authors: Gregory K. Lawrence , Terence T. Healey .

---

Duke-Progress merger delayed by FERC ruling; implementing tariffs also rejected without prejudice *

USA - December 19 2011
On December 14, 2011, the Federal Energy Regulatory Commission (“FERC”) determined that, although conditionally authorizing the proposed merger on September 30, 2011 subject to approval of appropriate market power mitigation, it cannot approve the merger of Duke Energy Corp. (“Duke”) and Progress Energy Inc. (“Progress”, collectively, “Applicants”) because the Applicants’ proposed mitigation plan is inadequate to remedy their merger’s harmful effects on competition.

Co-authors: Gregory K. Lawrence , Terence T. Healey .

---

First time for everything: finding unduly discriminatory treatment of wind generators and compelling circumstances, FERC exercises its Section 211A authority to order BPA to change its ways *

USA - December 13 2011
On December 7, 2011, the Federal Energy Regulatory Commission (FERC) determined that Bonneville Power Administration’s (BPA) use of environmental redispatch to address excess water supply and low load by curtailing renewable and thermal generators in favor of federal hydropower providers unfairly discriminated against wind generators.

Co-authors: Gregory K. Lawrence , Terence T. Healey .

---

Montana Consumer Counsel v. Federal Energy Regulatory Commission *

USA - October 26 2011
On October 13, 2011, the U.S. Court of Appeals for the Ninth Circuit held that the market-based rate policy embodied in Ferc Order Nos. 697 and Ferc Order 697-A does not exceed FERC’s authority as conferred by the FPA.

Co-authors: Kenneth W. Irvin, Joseph B. Williams .

---