2024-22755. Qualifying Facility Rates and Requirements Implementation Issues Under the Public Utility Regulatory Policies Act of 1978; Notice of Schedule for the Preparation of an Environmental Assessment for Qualifying Facility Rates and ...

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Department of Energy

Federal Energy Regulatory Commission

1. [Docket Nos. RM19-15-002; AD16-16-002]

On July 16, 2020, the Federal Energy Regulatory Commission (Commission) issued Order No. 872,^[1] approving certain revisions to its regulations implementing sections 201 and 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA).^[2] On September 5, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) remanded Order No. 872, without vacatur, based on its finding that, pursuant to the National Environmental Policy Act (NEPA),^[3] the Commission must prepare an environmental assessment (EA) analyzing the potential impacts of the rule on climate change and air quality.^[4]

This notice identifies Commission staff's intention to prepare an EA for Order No. 872 and sets forth the ( print page 80550) planned schedule for completion of the environmental review.^[5]

Schedule for Environmental Review

Issuance of EA December 19, 2024

End of Public Comment Period January 21, 2025

If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the progress.

Summary of Order No. 872

In Order No. 872, the Commission revised its regulations under PURPA sections 201 and 210 regarding qualifying facilities (QF). Among those revisions, the Commission granted states certain flexibilities in setting a QF's energy and capacity rates. The Commission modified its “one-mile rule” for determining whether generation facilities are at the same site for purposes of determining qualification as a qualifying small power production facility, and further clarified how the distance between facilities is to be calculated. The Commission also allowed an entity to challenge QF certification without being required to file a separate petition for declaratory order. The Commission additionally updated the threshold, from 5 megawatts (MW) to 20 MW, for small power production facilities entitled to a rebuttable presumption that they have nondiscriminatory access to certain markets. The Commission clarified that a QF must demonstrate commercial viability and a financial commitment before it is entitled to a legally enforceable obligation. Finally, the Commission determined that it was not required to conduct an EA or environmental impact statement before issuing Order No. 872.

In Solar Energy, the Ninth Circuit upheld the specific reforms in Order No. 872 but found that the Commission violated NEPA by failing to prepare an EA before promulgating the final rule.^[6] Finding that extraordinary disruptive circumstances would accompany vacatur, the Ninth Circuit remanded the final rule without vacatur, so that the Commission could prepare an EA.

Commission staff intends to prepare an EA for Order No. 872 in accordance with the schedule above.

Resource Areas Under Consideration

Consistent with the Ninth's Circuit's opinion, the EA will analyze Order No. 872's potential impacts on climate change and air quality, including any reasonably foreseeable greenhouse gas emissions and any environmental justice impacts resulting from these emissions. The EA will not analyze: geology; soils; water resources and wetlands; vegetation and wildlife; threatened, endangered, and candidate species; cultural resources; and land use and aesthetics.^[7]

Additional Information

With this notice, the Commission is asking agencies with jurisdiction by law or special expertise with respect to the environmental issues of this final rule to formally cooperate in the preparation of the environmental document.^[8] Agencies that would like to request cooperating agency status should file their request with the Commission following the method described below.

The Commission strongly encourages electronic filing. Please file using the Commission's eFiling system at http://www.ferc.gov/​docs-filing/​efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/​docs-filing/​ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [e-mail], [phone] (toll free), or [phone] (TTY). In lieu of electronic filing, you may submit a paper copy. Submissions sent via the U.S. Postal Service must be addressed to: Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852. The first page of any filing should include the docket number RM19-15-002. Comments emailed to Commission staff are not considered part of the Commission record.

In order to receive notification of the issuance of the EA and to keep track of formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to https://www.ferc.gov/​ferc-online/​overview to register for eSubscription.

The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members, and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings, the public is encouraged to contact OPP at [phone] or [e-mail].

Additional information about the final rule is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website ( www.ferc.gov). Using the “eLibrary” link, select “General Search” from the eLibrary menu, enter the selected date range and “Docket Number” excluding the last three digits ( i.e., RM19-15), and follow the instructions. For assistance with access to eLibrary, the helpline can be reached at [phone], TTY [phone], or at [e-mail]. The eLibrary link on the FERC website also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rule makings.

Dated: September 26, 2024.

Debbie-Anne A. Reese,

Acting Secretary.

Footnotes

1.   Qualifying Facility Rates & Requirements; Implementation Issues Under the Pub. Util. Regul. Policies Act of 1978, Order No. 872, 172 FERC ¶ 61,041, order on reh'g, Order No. 872-A, 173 FERC ¶ 61,158 (2020), aff'd in part and remanded in part sub nom. Solar Energy Indus. Ass'n v. FERC, 80 F.4th 956 (9th Cir. 2023) ( Solar Energy).

2.  16 U.S.C. 796(17)-(18), 824a-3.

3.  42 U.S.C. 4321 et seq.; see also18 CFR pt. 380 (2023) (Commission's regulations implementing NEPA).

4.   Solar Energy, 80 F.4th at 996-97.

5.  40 CFR 1501.10(b) (2024). In accordance with the Council on Environmental Quality's regulations, the unique identification number for documents relating to this environmental review is EAXX-19-20-000-1726219809. 40 CFR 1501.5(c)(4).

6.   Solar Energy, 80 F.4th at 997.

7.   Id. at 994. (“We agree with FERC that it could not reasonably consider the local effects of Order 872 on, say, vegetation, water quality, and wildlife because it could not predict which States would adopt which components of Order 872.”).

8.   See40 CFR 1501.8.