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Sylvia Bartell

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A corporate attorney, Sylvia focuses her practice on electric regulation. She counsels a variety of clients in the energy industry, including transmission companies, renewable/electric power generation investors and developers, vertically integrated utilities, and commercial and industrial customers.

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On March 21, 2022, the Securities and Exchange Commission (“SEC”) issued a highly-anticipated Proposed Rule that proposes to require public companies to disclose climate-related risks in their registration statements and annual reports filed with the SEC. The Proposed Rule, titled The Enhancement and Standardization of Climate-Related Disclosures for Investors, will mark a watershed moment for ESG transparency and corporate compliance if finalized.
Continue Reading The SEC Proposes Mandatory Climate-Related Disclosures

view of the hydroelectric dam, water discharge through locks
view of the hydroelectric dam, water discharge through locks, long exposure shooting

The Federal Energy Regulatory Commission (FERC) is acting to improve the safety of hydroelectric generation projects.  Hydropower regulation is the oldest area of FERC’s jurisdiction, dating back to the 1920s.  The latest developments in this area of FERC regulation focus on safety.
Continue Reading FERC Acts to Improve Safety at Hydroelectric Projects

Greenwashing is under increased scrutiny at the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC).  Greenwashing is clearly damaging to consumers and investors as it imbues purchasing decisions with disinformation.  It “harms innovation, since it makes it more difficult for legitimate, environmentally friendly products to compete with sellers who engage in deception.”[1]As investors and consumers become increasingly sophisticated in environmental issues, it is easier for them to detect greenwash and discount companies that make misleading environmental claims, thereby undermining that company’s public integrity.[2]

In light of increasing investor interest and reliance on Environmental, Social, and Governance (ESG) related disclosures the SEC is pursuing multiple ESG efforts.  For example, the SEC created the Climate and ESG Task Force in its Division of Enforcement.[3]  The Climate and ESG Task Force was created to “develop initiatives to proactively identify ESG-related misconduct.”[4]  The SEC’s Division of Examinations published a Risk Alert on ESG offerings, which states that “rapid growth in [ESG] demand, increasing number of ESG products and services, and lack of standardized and precise ESG definitions present certain risks.”[5]  Additionally, the SEC invited public comments on climate change disclosures.
Continue Reading Increased Scrutiny on Greenwashing

As the cold weather season approaches, the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC) are taking action to prevent a repeat of the devastating electric power outages that rocked Texas and the Midwest at the beginning of this year. …
Continue Reading FERC and NERC Take Action on Winter Readiness

FERC is in the process of gathering information and building a public record on technical and market issues that are prompted by the growing interest in “hybrid resources.”  FERC held a technical conference in the summer of 2020 (Docket No. AD20-9), followed by written comments from conference participants. In mid-January 2021, FERC directed RTOs and ISOs to submit reports on specific information requests.  Those reports are due in July 2021 and will likely provide valuable RTO and ISO specific facts and information for developers seeking to build, own, and operate hybrid resources in FERC-regulated RTOs and ISOs.

This technical conference proceeding could imply that FERC sees a basis or need to revise regulations or tariffs to address issues limiting hybrid resource development.  While FERC is not mandating any new requirement at this time, it could foreshadow a rule making proceeding for new regulations that facilitate and perhaps incentivize hybrid resources.

Generally, “hybrid resources” are projects that are comprised of more than one resource type at the same plant location.  For purposes of the Technical Conference, FERC focused on hybrid resources that consist of “a generation resource and an electric storage resource paired together.”  In industry vernacular, “hybrid resources” are also referred to as “Co-Located Resources,” “Combination Resources,” or co-controlled resources that share a single point of interconnection (“POI”).
Continue Reading FERC Explores Barriers to “Hybrid Resources”

The Federal Energy Regulatory Commission (FERC) took swift action to respond to the recent United Airlines v. FERC decision regarding income tax allowances, as well as to implement changes stemming from the Tax Cuts and Jobs Act “to ensure that the economic benefits related to the reduction in the Federal corporate income tax rate are passed through to customers.” Specifically, FERC revised its income tax allowance policy for Master Limited Partnership (MLP) pipelines, with implications for other pass-through entities. In addition, it acted to implement federal income tax rate reductions and ordered changes affecting all FERC regulated entities.
Continue Reading FERC Acts on Income Tax Allowance and Implements the Tax Cuts and Jobs Act

On January 8, 2018, the Federal Energy Regulatory Commission (FERC or the Commission) issued an Order terminating the rulemaking proceeding that it established to address DOE Secretary Rick Perry’s proposed Grid Resiliency Pricing Rule.  The proposed rule directed FERC to provide special compensation to certain coal and nuclear power plants (for a full summary of the proposal, refer to Husch Blackwell’s client alert).  In response, FERC found that Secretary Perry’s proposal did not meet “clear and fundamental legal requirements[.]”  FERC stated that Comments from Regional Transmission Operators (RTOs) and Independent System Operators (ISOs) did not indicate that the grid is threatened by the retirement of coal and nuclear power plants.

FERC none-the-less emphasized the importance of grid reliability and resilience, and determined that it has consistently taken action to address the issue, including:  (i) extensive reliability planning and standard setting through NERC, (ii) examination of fuel assurance methods during the 2014 Polar Vortex, (iii) certain capacity market reforms, and (iv) coordination of wholesale gas and electricity market scheduling.  To continue its reliability work, FERC initiated a new proceeding in Docket No. AD18-7 “to specifically evaluate the resilience of the bulk power system in the regions operated by regional transmission organizations (RTO) and independent system operators (ISO).”   In the new proceeding, FERC directs each RTO and ISO to submit information on certain resilience issues and concerns identified by the Commission to enable it to examine holistically the resilience of the bulk power system.  FERC stated that this new proceeding will provide further information on whether further action is warranted.   …
Continue Reading FERC Rejects DOE Proposal for Special Compensation for Coal and Nuclear Generators