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The Federal Energy Regulatory Commission (FERC) issued Order 864-A on Public Utility Transmission Rate Changes to Address Accumulated Deferred Income Taxes (ADIT). Order No. 864-A addresses requests for clarification and rehearing concerning the obligation of public utilities with either transmission formula rates or transmission stated rates to return excess ADIT arising from the reduction in the federal corporate income tax rate under the Tax Cuts and Jobs Act of 2017 (TCJA).

FERC reaffirmed its determination in Order No. 864 that public utilities with transmission formula rates must, inter alia, return the full amount of excess ADIT resulting from the TCJA to customers.  The Commission also affirmed that utilities with transmission stated rates must return excess ADIT to customers, but clarified how such utilities should treat excess and deficient ADIT between rate cases.  To the extent a public utility with a transmission stated rate has a FERC-approved ratemaking method for addressing excess and deficient ADIT, the utility should return excess ADIT (or recover deficient ADIT) according to that FERC-approved method. Public utilities with transmission stated rates that lack a FERC-approved ratemaking method must use some ratemaking method to make provision for excess and deficient ADIT.  Importantly, the Commission clarified that such utilities could begin amortizing excess and deficient ADIT balances immediately upon the tax rate change, subject to Commission review in its next rate case.

Read the full GT Alert here.

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Photo of Gregory K. Lawrence Gregory K. Lawrence

Gregory K. Lawrence focuses his practice on the electricity and natural gas industries. He is experienced appearing before the Federal Energy Regulatory Commission (FERC) and multiple state utility commissions regarding regulatory proceedings, compliance and enforcement, capacity and energy market structure, transactions and negotiations,

Gregory K. Lawrence focuses his practice on the electricity and natural gas industries. He is experienced appearing before the Federal Energy Regulatory Commission (FERC) and multiple state utility commissions regarding regulatory proceedings, compliance and enforcement, capacity and energy market structure, transactions and negotiations, asset transfers, and governmental affairs. Greg’s clients include funds and financial institutions, marketers, traders, renewable and other project developers, energy storage and demand response assets, municipal and investor-owned utilities, and large energy consumers.

Recognized as a leading energy and electricity lawyer by Chambers USA, Greg is a frequent speaker at energy industry conferences and a contributor to a wide range of publications, including The Electricity Journal, Electric Light & Power, Energy Risk, Bloomberg Law Reports, Project Finance International, Corporate Counsel, Windpower Engineering, and EnergyLaw 360. He also authored a quarterly column in Electric Energy T&D Magazine and “Rationalizing Supply with Demand: Electricity Demand Response in U.S. Wholesale Electricity Markets,” a book chapter in U.S. Law and Taxation.

Photo of Howard L. Nelson Howard L. Nelson

Howard L. Nelson has more than 30 years of regulatory and litigation experience, the majority of which has been related to energy matters before the Federal Energy Regulatory Commission (FERC), state public utility commissions, and the Court of Appeals. His litigation experience includes…

Howard L. Nelson has more than 30 years of regulatory and litigation experience, the majority of which has been related to energy matters before the Federal Energy Regulatory Commission (FERC), state public utility commissions, and the Court of Appeals. His litigation experience includes representing parties in major interstate natural gas and petroleum pipeline hearings involving complex multiparty major rate cases, and in certificate, LNG licensing, restructuring, tariff, fuel, gas quality, merger, and interconnection proceedings. He also advises clients on virtually all aspects of natural gas, including LNG, and oil pipeline regulation, including project development, the design of transportation and storage services and rates, negotiating and drafting contracts, strategic planning, and ensuring compliance with regulatory requirements.

Howard has also assisted clients with due diligence investigations concerning acquisitions and financings of electric, solar and wind assets. Finally, Howard has briefed and argued several cases at the D.C. Circuit and 4th U.S. Circuit Court of Appeals.

Photo of Thomas O. Lemon Thomas O. Lemon

Thomas O. Lemon focuses his practice on litigation and regulation in the energy sector. After receiving his J.D. from Washington University in St. Louis in 2011, Tom worked as an attorney-advisor in the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement. In his

Thomas O. Lemon focuses his practice on litigation and regulation in the energy sector. After receiving his J.D. from Washington University in St. Louis in 2011, Tom worked as an attorney-advisor in the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement. In his time at the Commission, Tom worked on nearly every type of FERC Enforcement matter, and has extensive experience with natural gas and electricity market fraud and manipulation claims, NERC reliability standards violations, wholesale demand response, and LMP and capacity price formation. He has done investigatory and enforcement work in several ISO and RTO markets, including CAISO, PJM, NYISO, and ISO New England.