Regulatory Updates

Both FERC and MMS have been busy, busy, busy. No, they're not doing much to play nicely in the submerged sand[box], but since our last update, MMS has moved forward with its Interim Policy, while FERC has dispose of challenges to its Policy Statement on conditional licenses. More discussion follows.

In January 2008, the comment period closed on MMS' proposed interim program for siting test facilities and request for nominations (last discussed here. I filed these comments on behalf of the Ocean Renewable Energy Coalition. MMS received 43 nominations for wave and offshore wind test facilities, which will be announced at a later date. I'm curious to see whether the public identification of test sites will spur new filings from johnny-come-latelies who didn't nominate a site but may try to stake claim to it nonetheless through any ensuing competitive process. Next issue on MMS' plate: the proposed draft lease for test facilities issued on December 14, 2007. Comments are due by February 12, 2008.

In the meantime, on January 29, 2008, the Commission summarily disposedof all of the rehearing requests filed in response to its Policy Statement on Conditional Licenses for hydrokinetic and marine renewable projects. The Commission found that the Policy Statement does not cause any aggrievement because it neither fixes rights or creates firm legal obligations. As such, the Policy Statement is not final for purposes of rehearing under Section 313(b) of the Federal Power Act. There's also a D.C. Circuit case, Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974), that confirms that a policy statement is "not finally determinative of the issues or rights to which it is addressed."

The Commission stated that parties are free to challenge the policy of conditional licenses on a case by case basis, once such a license is issued. And indeed, as I discussed this post, two entities took the Commission up on its invitation, and sought rehearing of the Finavera conditional license.

Comments

[Liz]

"And indeed, as I discussed this post, two entities took the Commission up on its invitation, and sought rehearing of the Finavera conditional license."

Make that 3 entities. Two state agencies and the Makah Tribe.