As competition continued to expand, QFs continued to face an evolving regulatory paradigm, and arguments to revise PURPA pricing terms on the basis PPAs’ that long-term QF PPA prices could not be sustained in a competitive market also continued. The Federal Power Act was amended again in 2005 to address further movement away from regulation and toward competition. “After almost three decades Congress amended PURPA in and apparently based on changes in the energy industry, 2005 creating exceptions to the mandatory purchase American Forest and obligation.” 550 F.3d 1179, 1180 Paper Association v. Federal Energy Regulatory Commission, (D.C. Cir. 2008) (American (emphasis added). Under new FERC regulations at Forest) 16 U.S.C. § 824a-3(m), utilities may be relieved of the obligation to purchase QF energy if certain circumstances related to the provision of capacity and energy in the wholesale electric markets are satisfied. As addressed by FERC, these new regulations set forth a rebuttable presumption that QFs larger than 20 MW have nondiscriminatory access to the PJM markets and therefore may sell their energy and/or capacity in that market and no longer need the protection of a mandatory purchase obligation. Again, however, preemption of a traditional utility-type ratemaking state’s regulation remains in effect. Not only is Section 210(e) of PURPA, 16 U.S.C. § 824a-3(e), exempting QFs from state utility-type rate regulation intact but also the 2005 amendment left rights under preexisting PPAs undisturbed. 16 U.S.C. See § 824a-3(m)(6). Moreover, the rebuttable presumption regarding nondiscriminatory access to the PJM markets does not apply to small QFs like Beaver Valley and BFMA. Indeed, with respect to small QFs, the opposite applies: the rebuttable presumption is that they nondiscriminatory access to markets sufficient to warrant termination of the lack mandatory purchase obligation. See PPL Electric Utilities Corporation Order Denying FERC Docket Nos. Application to Terminate Mandatory Purchase Obligation, QM13-2-000, QM13-2-001, 145 FERC ¶ 61,053 (Order issued October 17, 2013).
As competition continued to expand, QFs continued to face an evolving regulatory paradigm, and arguments to revise PURPA PPAs’ pricing terms on the basis that long-term QF PPA prices could not be sustained in a competitive market also continued. The Federal Power Act was amended again in 2005 to address further movement away from regulation and toward competition. “After almost three decades and apparently based on changes in the energy industry, Congress amended PURPA in 2005 creating exceptions to the mandatory purchase obligation.” American Forest and Paper Association v. Federal Energy Regulatory Commission, 550 F.3d 1179, 1180 (D.C. Cir. 2008) (American Forest) (emphasis added). Under new FERC regulations at 16 U.S.C. § 824a-3(m), utilities may be relieved of the obligation to purchase QF energy if certain circumstances related to the provision of capacity and energy in the wholesale electric markets are satisfied. As addressed by FERC, these new regulations set forth a rebuttable presumption that QFs larger than 20 MW have nondiscriminatory access to the PJM markets and therefore may sell their energy and/or capacity in that market and no longer need the protection of a mandatory purchase obligation. Again, however, preemption of a state’s traditional utility-type ratemaking regulation remains in effect. Not only is Section 210(e) of PURPA, 16 U.S.C. § 824a-3(e), exempting QFs from state utility-type rate regulation intact but also the 2005 amendment left rights under preexisting PPAs undisturbed. See 16 U.S.C. § 824a-3(m)(6). Moreover, the rebuttable presumption regarding nondiscriminatory access to the PJM markets does not apply to small QFs like Beaver Valley and BFMA. Indeed, with respect to small QFs, the opposite applies: the rebuttable presumption is that they lack nondiscriminatory access to markets sufficient to warrant termination of the mandatory purchase obligation. See PPL Electric Utilities Corporation Order Denying Application to Terminate Mandatory Purchase Obligation, FERC Docket Nos. QM13-2-000, QM13-2-001, 145 FERC ¶ 61,053 (Order issued October 17, 2013).