Ed Whitfield: “Section 203 of the Federal Power Act establishes requirements for the sale, disposition, merger, purchase, and…”

“Section 203 of the Federal Power Act establishes requirements for the sale, disposition, merger, purchase, and acquisition of certain utility assets and facilities. In the Energy Policy Act of 2005, Congress amended section 203 by dividing the section into separate statutory subsections, adding a new subsection granting FERC jurisdiction to review sales of certain generating facilities and increasing the minimum monetary threshold from $50,000 to $10 million for three of the four statutory subsections. This monetary threshold serves as a floor to ensure that public utilities would only be required to file and FERC to review proposed transactions of a minimal material significance. As amended by Congress in 2005, the subsection in section 203 of the Federal Power Act that pertains to mergers and consolidations of FERC jurisdictional facilities did not include an express minimum monetary threshold of $10 million or any other amount. FERC has since interpreted this statutory change as eliminating the de minimis exceptions for mergers and consolidations. As a result, mergers and consolidations of any amount, no matter how small, require FERC approval. This legislation, H.R. 4427, which was introduced by Mr.…”