or less from its electrical generating equipment, we will require that
the small power production QF update item 8a for all of its affiliated
small power production QFs within 10 miles, including adding or
deleting affiliated small power production QFs, and recording changes
to previously listed small power production QFs, so that the

information in its Form No. 556 is complete, accurate, and up-to-
date.\722\
---------------------------------------------------------------------------

    \722\ If a small power production QF that was certified prior to
the effective date of this final rule is required to recertify due
to a material change to its own facility, then at that time it will
be required to identify affiliates less than 10 miles from the
applicant facility.
---------------------------------------------------------------------------

    400. We believe that this modification reduces the burden on small
power production QFs because we will not require them to monitor
continually their affiliated small power production QFs more than one
mile but less than 10 miles away for changes nor will we require a
small power production QF that is evaluating whether it must recertify
its facility to recertify to update item 8a due to a change at its
affiliated small power production facilities more than one mile but
less than 10 miles from the evaluating facility's electrical generating
equipment.\723\ However, the affiliated QF of that evaluating small
power production QF will need to recertify if the affiliated QF makes a
material change to its information in its Form No. 556. After reviewing
the rehearing requests, and implementing the modification described
above, we conclude that this requirement strikes an appropriate balance
between the need to address improper circumvention and the need to
avoid unduly burdening small power production QFs. With the
modification described above, we find that our burden estimates, as
reported in the final rule, continue to be reasonable, especially now
that we have lessened the burden as compared to the final rule by
making this change on rehearing. We do not believe that the change we
have made today to the Form No. 556 to implement the above modification
adds any additional burden to the information collection. We also note
that, in retaining the pre-final rule requirement that a small power
production recertify information on affiliate small power production
facilities one mile or less away,\724\ we are not adding any additional
burden.
---------------------------------------------------------------------------

    \723\ We note that we are maintaining the final rule's
alternative option for rooftop solar PV developers to file their
recertification applications. See Order No. 872, 172 FERC ] 61,041
at P 560.
    \724\ See supra note 583.
---------------------------------------------------------------------------

    401. Though Public Interest Organizations and Solar Energy
Industries questioned the Commission's estimates, the Commission
provided ample justification for why the burden and cost estimates
would increase as a result of the final rule. In the final rule, the
Commission estimated that the annual burden hours and costs for the
information collection for the Form No. 556 would increase as a result
of the changes to the ``one-mile rule'' in the final rule.\725\ The
Commission explained that it was implementing new requirements for
applicants to report the QF's geographic coordinates, list affiliated
small power production QFs using the same energy resource one mile or
less from the applicant facility, list affiliated small power
production QFs using the same energy resource whose nearest electrical
generating equipment is greater than one mile and less than 10 miles
from the electrical generating equipment of the applicant facility, and
list the geographic coordinates of the nearest ``electrical generating
equipment'' of both its own facility and the affiliated small power
production QF in question.\726\ The Commission also suggested that if
applicants anticipate a protest to their certifications, they could
provide explanations as to why the affiliated small power production
QFs using the same energy resource that are more than one mile and less
than 10 miles from the electrical generating equipment of the applicant
facility should be considered at separate sites from the applicant's
facility.\727\
---------------------------------------------------------------------------

    \725\ Order No. 872, 172 FERC ] 61,041 at P 699.
    \726\ Id. P 698.
    \727\ Id.
---------------------------------------------------------------------------

    402. Additionally, the Commission noted that, as a result of the
changes to the PURPA Regulations made in the final rule, small power
production QFs will have to spend more time identifying any affiliated
small power production QFs that are less than one mile, between one and
10 miles, and more than 10 miles, apart. The Commission further
expected that there will be an increase in the burden hours and cost
due to the new ability of entities to protest without a fee, which will
affect initial self-certifications, applications for Commission
certification, or recertifications that make substantive changes to an
existing certification after the effective date of the final rule.\728\
---------------------------------------------------------------------------

    \728\ Id. P 699.
---------------------------------------------------------------------------

1. QFs Submitting Self-Certifications
    403. Prior to the final rule, the estimated burden for a small
power production facility greater than 1 MW filing a self-certification
was 1.5 hours.\729\
---------------------------------------------------------------------------

    \729\ Commission Information Collection Activities (FERC-556);
Comment Request; Extension, Docket No. IC19-16-000 (issued May 15,
2019).
---------------------------------------------------------------------------

a. Small Power Production Facility Greater Than 1 MW, and Less Than One
Mile From an Affiliated Small Power Production QF
    404. In the final rule, given the implementation of the new 10-mile
rule, the Commission estimated that it would take a small power
production facility greater than 1 MW, and less than one mile from an
affiliated facility, two hours in addition to the prior estimated 1.5
hours to fill out the new version of the Form No. 556 for a self-
certification.\730\ In making this estimate of two additional hours,
the Commission took into consideration that the applicant would now be
required to additionally provide its geographic coordinates.\731\ While
it would also be required to identify and provide the geographic
coordinates for any small power production QFs located less than 10
miles from the applicant facility, the current Form No. 556 already
required identifying any facilities located within one mile of the
applicant facility. The Commission reasoned that the applicant may need
to take some additional time to ascertain that there were no additional
facilities located more than one mile from the applicant facility. The
Commission therefore reasoned that, for this category, it may take an
applicant facility an additional two hours to complete the Form No.
556.\732\
---------------------------------------------------------------------------

    \730\ Order No. 872, 172 FERC ] 61,041 at P 699.
    \731\ Id. P 698.
    \732\ Id. P 699.
---------------------------------------------------------------------------

b. Small Power Production Facility Greater Than 1 MW, and More Than One
Mile but Less Than 10 Miles From an Affiliated Small Power Production
QF
    405. In the final rule, given the implementation of the new 10-mile
rule, the Commission estimated that it would take a small power
production facility greater than 1 MW, and more than one mile but less
than 10 miles from an affiliated facility, eight hours in addition to
the prior estimated 1.5 hours to fill out the new version of the Form
No. 556 for a self-certification.\733\ In making this estimate of eight
additional hours, the Commission took into consideration that the
applicant would now be required to additionally provide its geographic
coordinates and to identify and provide the geographic coordinates for
any small power production QFs located less than 10 miles from the
applicant facility. If the applicant chose, it could provide
explanations as to why the affiliated small power production QFs using
the same energy resource that are more than one mile and less than 10
miles from the electrical generating equipment of the applicant
facility should be considered to be at separate sites from the
applicant's facility.\734\ The Commission

therefore reasoned that, for this category, it may take an applicant
facility an additional eight hours to complete the Form No. 556.\735\
---------------------------------------------------------------------------

    \733\ Id.
    \734\ Id. P 698.
    \735\ Id. P 699.
---------------------------------------------------------------------------

c. Small Power Production Facility Greater Than 1 MW and 10 Miles or
More From an Affiliated Small Power Production QF
    406. In the final rule, given the implementation of the new 10-mile
rule, the Commission estimated that it would take a small power
production facility greater than 1 MW and 10 miles or more from an
affiliated facility two hours in addition to the prior estimated 1.5
hours to fill out the new version of the Form No. 556 for a self-
certification.\736\ In making this estimate of two additional hours,
the Commission took into consideration that the applicant would now be
required to additionally provide its geographic coordinates but would
not be required to identify and provide the geographic coordinates for
any small power production QFs located more than 10 miles from the
applicant facility. The Commission reasoned that the applicant may need
to take some additional time to ascertain that there were no additional
facilities located less than 10 miles from the applicant facility. The
Commission therefore reasoned that, for this category, it may take an
applicant facility an additional two hours to complete the Form No.
556.\737\
---------------------------------------------------------------------------

    \736\ Id.
    \737\ Id.
---------------------------------------------------------------------------

2. QFs Submitting Applications for Commission Certification
    407. Prior to the final rule, the estimated burden for a small
power production facility greater than 1 MW filing an application for
Commission certification was 50 hours.\738\
---------------------------------------------------------------------------

    \738\ Commission Information Collection Activities (FERC-556);
Comment Request; Extension, Docket No. IC19-16-000 (issued May 15,
2019).
---------------------------------------------------------------------------

a. Small Power Production Facility Greater Than 1 MW, and Less Than One
Mile From an Affiliated Small Power Production QF
    408. In the final rule, given the implementation of the new 10-mile
rule, the Commission estimated that it would take a small power
production facility greater than 1 MW, and less than one mile from an
affiliated facility, six hours in addition to the prior estimated 50
hours to fill out the new version of the Form No. 556 as part of an
application for Commission certification.\739\ In making this estimate
of six additional hours, the Commission took into consideration that
the applicant would now be required to additionally provide its
geographic coordinates. Also, while the applicant would also be
required to identify and provide the geographic coordinates for any
small power production QFs located less than 10 miles from the
applicant facility, the current Form No. 556 already required
identifying any facilities located within one mile of the applicant
facility. The Commission reasoned that the applicant may need to take
some additional time to ascertain that there were no additional
facilities located more than one mile from the applicant facility.
Unlike a self-certification, the application for Commission
certification also requires the applicant to pay a filing fee, and
applicants for a Commission certification generally provide more
explanation and a narrative filing. The Commission therefore reasoned
that, for this category, it may take an applicant facility an
additional six hours to complete the Form No. 556.\740\
---------------------------------------------------------------------------

    \739\ Order No. 872, 172 FERC ] 61,041 at P 699.
    \740\ Id.
---------------------------------------------------------------------------

b. Small Power Production Facility Greater Than 1 MW, and More Than One
Mile but Less Than 10 Miles From an Affiliated Small Power Production
QF
    409. In the final rule, given the implementation of the new 10-mile
rule, the Commission estimated that it would take a small power
production facility greater than 1 MW, and more than one mile but less
than 10 miles from an affiliated facility, 12 hours in addition to the
prior estimated 50 hours to fill out the new version of the Form No.
556 for an application for Commission certification.\741\ In making
this estimate of 12 additional hours, the Commission took into
consideration that the applicant would now be required to additionally
provide its geographic coordinates and to identify and provide the
geographic coordinates for any small power production QFs located less
than 10 miles from the applicant facility. If the applicant chose, it
could also provide explanations as to why the affiliated small power
production QFs using the same energy resource, that are more than one
mile and less than 10 miles from the electrical generating equipment of
the applicant facility, should be considered to be at separate sites
from the applicant's facility.\742\ Unlike a self-certification, the
application for Commission certification also requires the applicant to
pay a filing fee, and applicants for a Commission certification
generally provide more explanation and a narrative filing. Therefore,
the Commission reasoned that, for this category, it may take an
applicant facility an additional 12 hours to complete the Form No.
556.\743\
---------------------------------------------------------------------------

    \741\ Id.
    \742\ Id. P 698.
    \743\ Id. P 699.
---------------------------------------------------------------------------

c. Small Power Production Facility Greater Than 1 MW and 10 Miles or
More From an Affiliated Small Power Production QF
    410. In the final rule, given the implementation of the new 10-mile
rule, the Commission estimated that it would take a small power
production facility greater than 1 MW and 10 miles or more from an
affiliated facility six hours in addition to the prior estimated 50
hours to fill out the new version of the Form No. 556 for an
application for Commission certification.\744\ In making this estimate
of six additional hours, the Commission took into consideration that
the applicant would now be required to additionally provide its
geographic coordinates, but the applicant would not be required to
identify and provide the geographic coordinates for any small power
production QFs located more than 10 miles from the applicant facility.
The Commission reasoned that the applicant may need to take some
additional time to ascertain that there were no additional facilities
located less than 10 miles from the applicant facility. Unlike a self-
certification, the application for Commission certification also
requires the applicant to pay a filing fee, and applicants for a
Commission certification generally provide more explanation and a
narrative filing. The Commission reasoned that, for this category, it
may take an applicant facility an additional six hours to complete the
Form No. 556.\745\
---------------------------------------------------------------------------

    \744\ Id.
    \745\ Id.
---------------------------------------------------------------------------

3. Calculations for Additional Burden and Cost
    411. Lastly, the Commission explained that it believed that the
industry is similarly situated in terms of wages and benefits.
Therefore, estimates for the annual cost of additional burden are based
on FERC's 2020 average hourly wage (and benefits) of $83.00 per
hour.\746\ In order to determine the cost per response in the column
titled ``Increased Average Burden Hours & Cost Per Response ($) (4),''
the Commission multiplied the number of additional burden hours by the
average hourly wage of $83.00 per hour. For

example, for small power production facilities greater than 1 MW
located less than one mile from affiliated small power production QFs,
the Commission determined that the increased average burden hours as a
result of the final rule was two hours. The two-hour increase in the
average burden hours, multiplied by an average hourly wage of $83.00
per hour, equals $166 cost per response.\747\ In order to determine the
increased total annual burden hours and total annual cost in the column
titled ``Increased Total Annual Burden Hours & Total Annual Cost ($)
(3) * (4) = (5),'' the Commission multiplied the numbers in the column
titled ``Total Number of Responses (1) * (2) = (3)'' by the numbers in
the column titled ``Increased Average Burden Hours & Cost Per Response
($) (4).'' For example, for small power production facilities greater
than 1 MW located less than one mile from affiliated small power
production QFs, the Commission multiplied the increased average burden
hours of two hours by the total number of responses of 1,123.75 for
increased total annual burden hours of 2,247.5 hours. The Commission
then multiplied the increased cost per response of $166 by the total
number of responses of 1,123.75 for an increased total annual cost of
$186,542.50.\748\
---------------------------------------------------------------------------

    \746\ Id. P 699 n.1050.
    \747\ Id. P 699.
    \748\ Id.
---------------------------------------------------------------------------

IV. Environmental Analysis

A. No EIS or EA Is Required

    412. In the final rule, the Commission noted that NEPA requires
federal agencies to prepare a detailed statement on the environmental
impact for ``major Federal actions significantly affecting the quality
of the human environment.'' \749\ The Council on Environmental
Quality's (CEQ) regulations implementing NEPA provide that federal
agencies can comply with NEPA by preparing: (a) An Environmental Impact
Statement (EIS) for a proposed action significantly affecting the
quality of the human environment; \750\ or (b) an Environmental
Assessment (EA) to determine whether an EIS is required.\751\ The CEQ
regulations also provide that agencies are not obligated to prepare
either an EIS or an EA if they find that a categorical exclusion
applies.\752\
---------------------------------------------------------------------------

    \749\ Id. P 710 (citing 42 U.S.C. 4332(C)); see also Regulations
Implementing the National Environmental Policy Act, Order No. 486,
FERC Stats. & Regs. ] 30,783 (1987) (cross-referenced at 41 FERC ]
61,284)).
    \750\ 40 CFR 1502.4 (2019).
    \751\ 40 CFR 1508.9.
    \752\ 40 CFR 1508.4.
---------------------------------------------------------------------------

    413. The Commission found that no EA or EIS was required for the
final rule because the rule does not involve a particular project that
``define[s] fairly precisely the scope and limits of the proposed
development'' and any potential environmental impacts from the final
rule are not reasonably foreseeable.\753\ In response to comments on
the NOPR that although an EA and later an EIS was prepared for the 1980
initial rules implementing PURPA (Order No. 70), the Commission
explained, based on a number of factual differences between the initial
rules and the final rule, that a meaningful NEPA analysis could not be
prepared for the final rule.\754\ The Commission also found that, as a
separate and independent alternative ground, that a categorical
exclusion applied to the final rule so that an EA or EIS need not be
prepared.\755\
---------------------------------------------------------------------------

    \753\ Order No. 872, 172 FERC ] 61,041 at PP 710, 715.
    \754\ Id. PP 728-36.
    \755\ Id. P 720.
---------------------------------------------------------------------------

1. NEPA Analysis Is Not Required Where Environmental Impacts Are Not
Reasonably Foreseeable
    414. The Commission explained that the final rule does not propose
or authorize, much less define, the scope and limits of any potential
energy infrastructure and, as a result, there is no way to determine
whether issuance of the rule will significantly affect the quality of
the human environment.\756\ The Commission also explained that, while
courts have held that NEPA requires ``reasonable forecasting,'' ``NEPA
does not require a `crystal ball' inquiry.'' \757\ The Commission added
that an agency ``is not required to engage in speculative analysis'' or
``to do the impractical, if not enough information is available to
permit meaningful consideration'' \758\ or to ``foresee the
unforeseeable.'' \759\ and ``[i]n determining what effects are
`reasonably foreseeable,' an agency must engage in `reasonable
forecasting and speculation,' . . . with reasonable being the operative
word.'' \760\ The Commission explained that environmental impacts are
not reasonably foreseeable if the impacts would result only through a
lengthy causal chain of highly uncertain or unknowable events.\761\
---------------------------------------------------------------------------

    \756\ Id. P 711.
    \757\ Id. P 716 (citing Vt. Yankee Nuclear Power Corp. v. Nat.
Res. Def. Council, Inc., 435 U.S. 519, 534 (1978)).
    \758\ Id. (citing N. Plains Res. Council v. Surface Transp.
Board, 668 F.3d 1067, 1078-79 (9th Cir. 2011) (citation omitted)).
    \759\ Id. (citing Concerned About Trident v. Rumsfeld, 555 F.2d
817, 830 (D.C. Cir. 1976) (citation omitted)).
    \760\ Id. (citing Sierra Club v. U.S. Dep't of Energy, 867 F.3d
189, 198 (D.C. Cir. 2017) (emphasis in original) (citation
omitted)).
    \761\ Id. (citing Dep't of Transp. v. Pub. Citizen, 541 U.S.
752, 767 (2004) (``NEPA requires a `reasonably close causal
relationship' between the environmental effect and the alleged
cause.''); Metro. Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 774 (1983) (noting effects may not fall within section 102
of NEPA because ``the causal chain is too attenuated'')).
---------------------------------------------------------------------------

    415. The Commission found that any consideration of whether the
revised rules could potentially result in significant new environmental
impacts due to less QF development and increased development of coal,
nuclear, and combined cycle natural gas plants, would be unduly
speculative, based on the difficulty in determining which, if any, of
the additional flexibilities the final rule provides to the states will
be adopted by each state, how state rules would impact QF development
going forward and whether any reduction in QF renewables would be
replaced by an increased amount of non-QF renewable resources with
similar environmental characteristics.\762\
---------------------------------------------------------------------------

    \762\ Id. P 717.
---------------------------------------------------------------------------

    416. The Commission pointed to Center for Biological Diversity v.
Ilano,\763\ in which the court held that no NEPA review was required
for United States Forest Service designations, pursuant to the Healthy
Forests Restoration Act (HFRA), of certain forests as ``landscape-scale
areas.'' The Commission explained that the court held that no NEPA
review was required for the designations, noting that no specific
projects were proposed for any of the landscape-scale areas and that
``[i]n such circumstances, `any attempt to produce an [EIS] would be
little more than a study . . . containing estimates of potential
development and attendant environmental consequences.' '' \764\ The
Commission further explained that the court concluded that ``unless
there is a particular project that `define[s] fairly precisely the
scope and limits of the proposed development of the region,' there can
be `no factual predicate for the production of an [EIS] of the type
envisioned by NEPA.' '' \765\
---------------------------------------------------------------------------

    \763\ Id. P 712 (citing Ctr. for Biological Diversity v. Ilano,
928 F.3d 774 at 780) (9th Cir. 2019).
    \764\ Id.
    \765\ Id. See also Northcoast Ent. Ctr. v. Glickman, 136 F.3d
660, 668 (9th Cir. 1998) (citing Kleppe v. Sierra Club, 427 U.S. 390
(1976) (explaining that NEPA does not require agency to complete
environmental analysis where environmental effects are speculative
or hypothetical)).

---------------------------------------------------------------------------

    417. The Commission found that the final rule does not fund any
particular QFs or issue permits for their construction or operation
(neither of which the Commission has jurisdiction to do) and neither
the Commission's regulation nor the final rule authorize or prohibit
the use of any particular technology or fuel, or mandate or prohibit
where QFs should be or are built.\766\
---------------------------------------------------------------------------

    \766\ Id. P 713.
---------------------------------------------------------------------------

    418. The Commission found that the final rule continues to give
states wide discretion and that it is impossible to know what the
states may choose to do in response to the final rule, whether they
will make changes in their current practices or not, and how those
state choices would impact QF development and the environment in any
particular state, let in any particular locale.\767\
---------------------------------------------------------------------------

    \767\ Id. P 714.
---------------------------------------------------------------------------

    419. The Commission found that the scope of the final rule is even
less defined than the landscape-scale area designations at issue in
Center for Biological Diversity v. Ilano, explaining that PURPA applies
throughout the entire United States and the revisions implemented by
the final rule theoretically could affect future QF development
anywhere in the country.\768\ The Commission reasoned that, as was the
case in Center for Biological Diversity v. Ilano, any attempt to
evaluate the environmental effects of the final rule by necessity would
involve hypothesizing the potential development of QFs and the
resultant environmental consequences.\769\ The Commission found that
any attempt by the Commission to estimate the potential environmental
effects of the final rule would be considerably more speculative than
the estimates of potential development and attendant environmental
consequences that the court in Center for Biological Diversity held are
not required under NEPA. The Commission found that it was not possible
to provide any reasonable forecast of the effects of the final rule on
future QF development, whether any affected potential QF would be a
renewable resource (such as solar or wind) or employ carbon-emitting
technology (such as a fossil-fuel-burning cogenerator or a waste-coal-
burning small power production facility). The Commission further found
that environmental effects on land use, vegetation, water quality, etc.
are all dependent on location, which is unknown and could be anywhere
in the United States.\770\ The Commission therefore concluded that any
the potential effects of the final rule on future QF development are so
speculative as to render meaningless any environmental analysis of
these impacts.\771\
---------------------------------------------------------------------------

    \768\ Id. P 715.
    \769\ Id. P 718.
    \770\ Id.
    \771\ Id. P 719.
---------------------------------------------------------------------------

a. Requests for Rehearing
    420. Northwest Coalition and Public Interest Organizations allege
that the Commission erred in determining that there is no need to
prepare an EA or EIS.\772\ With respect to the discussion in the final
rule of why potential environmental impacts are too speculative,
Northwest Coalition asserts, with no explanation, that the Commission
provided ``out-of-context quotations from a number of cases.'' \773\
Northwest Coalition and Public Interest Organizations argue that the
impacts are not too speculative or uncertain for a NEPA analysis
because the Commission used the wrong standard to determine impact,
asserting that the ``question is whether the proposed rules may have a
significant impact on the human environment,'' not whether it will have
an impact.\774\ They claim that, because states were prohibited from
lawfully denying fixed-price contracts to QFs under previous rules, the
Commission must assume that under the new rules the states will
eliminate the right to fixed-price contracts and that the development
of new QFs will halt, which is the type of analysis that must be done
in a NEPA document.\775\ Northwest Coalition claims that the final rule
does not appear to seriously dispute that the new rules may have a
significant effect; instead, it appears to merely conclude the precise
impact would be too difficult to pinpoint.
---------------------------------------------------------------------------

    \772\ Northwest Coalition Request for Rehearing at 56-57; Public
Interest Organizations Request for Rehearing at 15-16.
    \773\ Northwest Coalition Request for Rehearing at 61 n.222.
    \774\ Id. at 58.
    \775\ Id. at 58-59.
---------------------------------------------------------------------------

    421. Public Interest Organizations similarly argue that the
Commission cannot avoid NEPA review by making unsupported claims that
environmental impacts are unforeseeable, prior to any NEPA analysis, as
the role of NEPA itself is to ``indicate the extent to which
environmental effects are uncertain or unknown.'' \776\ Public Interest
Organizations assert that the Commission mistakenly found that any
environmental analysis of the final rule would be speculative and would
not meaningfully inform the Commission or the public.\777\ Public
Interest Organizations add that NEPA requires agencies to examine all
foreseeable impacts, including cumulative and indirect impacts, when
undertaking rule changes that grant states new regulatory authority,
which ``plainly includes changes to allow new ways and options for
states when exercising their authority.'' \778\ Public Interest
Organizations contend that NEPA may apply when the agency makes a
decision that permits actions by other parties that will have an impact
on the environment.\779\ Northwest Coalition adds that courts have
required a NEPA analysis in cases where the agency proposes rules that
will have an impact on future development, even for widespread
regulatory changes that do not themselves authorize any discrete
project.\780\
---------------------------------------------------------------------------

    \776\ Public Interest Organizations Request for Rehearing at 20,
26 (emphasis added) (citing Sierra Club v. Froehlke, 534 F.2d 1289,
1296 (8th Cir. 1976); Scientists' Institute for Public Information,
Inc. v. AEC, 481 F.2d 1079, 1092, 1098 (D.C. Cir. 1973); Jicarilla
Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 n.11 (9th
Cir. 1973); Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.
Supp. 908, 922 (D. Or. 1977)).
    \777\ Id. at 21 (citing NOPR, 168 FERC ] 61,184 at P 155).
    \778\ Id.
    \779\ Id. at 22 (citing Mid States Coal. for Progress v. Surface
Transp. Bd., 345 F.3d 520, 549-50 (8th Cir. 2003); Scientists' Inst.
For Public Info., Inc. v. AEC, 481 F.2d at 1088-89).
    \780\ Northwest Coalition Request for Rehearing at 60-61 (citing
American Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1033-34 (D.C.
Cir. 2008)).
---------------------------------------------------------------------------

    422. Public Interest Organizations assert that a NEPA analysis is
required when uncertainty may be resolved by collecting further data or
the collection of such data may prevent speculation on potential
environmental effects.\781\ Public Interest Organizations add that the
Commission's position that collecting data and analyzing it would be
too difficult is an impermissible basis for foregoing an EA or
EIS.\782\ Public Interest Organizations contend that, when an agency is
faced with incomplete or unavailable information, the CEQ regulations
require an EIS to include a summary of existing credible scientific
evidence that is relevant to evaluating the reasonably foreseeable
impacts of a proposed action.\783\
---------------------------------------------------------------------------

    \781\ Public Interest Organizations Request for Rehearing at 24
(citing National Parks & Conservation Ass'n v. Babbitt, 241 F.3d
722, 732 (9th Cir. 2001)).
    \782\ Id. (citing Seattle Audubon Soc'y v. Mosley, 798 F. Supp.
1494, 1497 (W.D. Wash. 1992)).
    \783\ Id. at 24-25 (citing 40 CFR 1502.22(b)(3)-(b)(4)).
---------------------------------------------------------------------------

    423. Northwest Coalition and Public Interest Organizations argue
the Commission is required to prepare an EIS because courts have found
an EIS is required where ``substantial questions''

have been raised as to whether an agency action ``may cause significant
degradation of some human environmental factor,'' adding that parties
are not required to show that significant effects will occur, but only
raise substantial questions that they may occur.\784\
---------------------------------------------------------------------------

    \784\ Northwest Coalition Request for Rehearing at 57 (citing
LaFlamme v. FERC, 852 F.2d 389, 397 (9th Cir. 1988)); Public
Interest Organizations Request for Rehearing at 17 (citing
Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992)).
---------------------------------------------------------------------------

    424. Northwest Coalition and Public Interest Organizations allege
that the Commission improperly relied on Center for Biological
Diversity v. Ilano to determine that the rulemaking's impacts were too
speculative for NEPA analysis.\785\ Public Interest Organizations
assert that the court found that the action would not change the
``status quo,'' in contrast to here, where they claim the final rule
legally alters the status quo.\786\ Public Interest Organizations claim
that ``significantly'' reduced QF development is foreseeable based on
experience in states that have undermined the prior rules, regardless
of the fact that the proposed changes do not mandate or prohibit the
construction of any specific QF's, and the environmental impacts of
removing major incentives for emissions-free renewable resources will
be significant and far-reaching.\787\ Northwest Coalition asserts that
the Center for Biological Diversity v. Ilano court ``relied on its
finding that the designation did not authorize any discrete projects
and would only potentially lead to such projects, making the exercise
of an EIS too speculative.'' \788\ Northwest Coalition claims that this
reasoning does not apply to the final rule because the Commission has
demonstrated it has the capability to conduct detailed market analysis
on the impact of its proposed rules and their likely environmental
impacts.\789\
---------------------------------------------------------------------------

    \785\ Northwest Coalition Request for Rehearing at 59-60; Public
Interest Organizations Request for Rehearing at 30.
    \786\ Public Interest Organizations Request for Rehearing at 31
(citing Ctr. for Biological Diversity v. Ilano, 928 F.3d at 781).
    \787\ Id. at 34.
    \788\ Northwest Coalition Request for Rehearing at 60.
    \789\ Id.
---------------------------------------------------------------------------

b. Commission Determination
    425. As an initial matter, Northwest Coalition errs in suggesting
that the Commission does not dispute that the final rule may have
significant impacts on the environment and that the precise impact
would be too difficult to pinpoint. Rather, the Commission found that
any consideration of whether the final rule could potentially have
significant environmental impacts would be so speculative as to render
meaningless any environmental analysis of these hypothetical
impacts.\790\
---------------------------------------------------------------------------

    \790\ Order No. 872, 172 FERC ] 61,041 at PP 717-719. We note
that CEQ issued a final rule, Update to the Regulations Implementing
the Procedural Provisions of the National Environmental Policy Act,
85 FR 43,304 (July 16, 2020) (to be codified at 40 CFR pts. 1500-08,
1515-18), which became effective as of September 14, 2020. The final
rule replaces the requirement for agency consideration of ``direct,
indirect, and cumulative effects'' of a proposed action, with agency
consideration of environmental effects ``that are reasonably
foreseeable and have a reasonably close causal relationship.'' 40
CFR 1508.1(g). CEQ explains that agencies should not consider
effects that are ``remote in time, geographically remote, or the
result of a lengthy causal chain.'' Under this standard, the mere
fact that an effect might not occur ``but for'' the project is not
sufficient to trigger a NEPA analysis; rather, there must be a
``reasonably close causal relationship'' between the proposed action
and the effect, ``analogous to proximate cause in tort law.'' Update
to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act, 85 FR at 43,343.
---------------------------------------------------------------------------

    426. Moreover, the Commission did not reach this conclusion based
on an inability to ``pinpoint'' precise impacts. Rather the Commission
made this determination based on, among other things, the inability to
provide any reasonable forecast of the effects of the final rule on the
environment. This is the case not only because it is not possible to
predict how the states will exercise the increased flexibilities
provided by the final rule and whether the effects, if any, of such
state actions will encourage or discourage renewable resources as
opposed to fossil-fueled resources, but also because any environmental
effects on resources such as land use, vegetation, and water quality
are all dependent on location, which is unknown at this time and could
be anywhere in the United States.\791\
---------------------------------------------------------------------------

    \791\ Id.
---------------------------------------------------------------------------

    427. We also reject Northwest Coalition's argument that in making
an impact determination, the Commission erroneously considered whether
the final rule ``will,'' rather than ``may,'' have a significant impact
on the environment. In explaining why no EA or EIS was required, the
Commission stated that any consideration of whether the final rule
could potentially result in significant new environmental impacts due
to less QF development and increased development of coal, nuclear, and
combined cycle natural gas plants, would be highly speculative, based
on the difficulty in determining which additional flexibilities the
final rule provides to the states that each state will adopt, if any;
how such state rules would impact QF development going forward; and
whether any reduction in QF renewables would be replaced by the much
greater amount of non-QF renewable resources with similar environmental
characteristics.\792\
---------------------------------------------------------------------------

    \792\ Id. P 717. (emphasis added).
---------------------------------------------------------------------------

    428. Public Interest Organizations' reliance on Mid States Coal.
for Progress v. Surface Transp. Bd \793\ to support its claim that NEPA
applies when an agency makes decisions which permit actions by other
parties that will impact the environment is misplaced. In that case,
parties challenged the permitting of a railroad extension that would
transport coal to the Midwest, resulting in an increased availability
of coal at reduced rates. The court found that the EIS prepared for the
railroad extension had failed to address the indirect impacts of air
emissions resulting from the consumption of this coal when it was used
to generate electricity, even though the railroad had not yet signed
any contracts to haul this coal. The court noted that ``if the nature
of the effect is reasonably foreseeable but its extent is not . . . the
agency may not simply ignore the effects.'' \794\ In contrast to this
proceeding, in Mid States Coal. for Progress v. Surface Transp. Bd, it
was undisputed that the proposed rail line would increase the use of
coal for power generation; the Surface Transportation Board itself had
concluded that its action would lead to increased mining and air
emissions but then failed to address those impacts in the EIS. Here,
the Commission did not conclude that the final rule would have
identifiable environmental impacts; on the contrary, it explained in
detail why any potential impacts from the final rule are not reasonably
foreseeable.
---------------------------------------------------------------------------

    \793\ Mid States Coal. for Progress v. Surface Transp. Bd., 345
F.3d 520.
    \794\ Id. (emphasis in original).
---------------------------------------------------------------------------

    429. Public Interest Organizations' reliance on Scientists'
Institute for Public Information, Inc., v. AEC \795\ is equally
misplaced. There, the D.C. Circuit faulted the Atomic Energy Commission
(AEC) for failing to prepare a NEPA analysis for its proposed liquid
metal fast breeder reactor program. The D.C. Circuit noted that AEC had
prepared a complex cost/benefit analysis in attempting to justify the
proposed program but failed to include a consideration of the
environmental costs and benefits associated with the proposed program.
The court was persuaded that a NEPA analysis should have been prepared
because AEC had existing detailed estimates on the

amount of waste and the amount of land area necessary for storage of
the waste, as well as ``much information on alternatives to the program
and their environmental effects.'' \796\ In contrast here, for the
reasons discussed in the final rule and herein, the Commission has no
existing detailed or quantifiable information, nor is such information
attainable, with respect to future actions that might or might not
occur as a result of the final rule that would assist us in a
meaningful analysis.\797\
---------------------------------------------------------------------------

    \795\ Scientists' Institute for Public Information, Inc. v. AEC,
481 F.2d 1079.
    \796\ Id.
    \797\ Order No. 872, 172 FERC ] 61,041 at PP 718-19.
---------------------------------------------------------------------------

    430. We also disagree with Public Interest Organizations' arguments
that ``substantial questions'' have been raised with respect to
potential significant environmental impacts such that the Commission
must prepare an EA or EIS for the final rule.\798\ Courts have found
that the applicable standard for determining whether substantial
questions have been raised is whether the ``alleged facts if true, show
that the proposed project may significantly degrade some human
environmental factor.'' \799\ Public Interest Organizations' arguments
are based not on alleged facts, but on speculative assumptions which
the Commission considered and addressed in the final rule.\800\ Public
Interest Organizations' reliance on LaFlamme v. FERC \801\ is without
merit. There, the Commission approved the construction of a new
hydroelectric project without benefit of an EA or an EIS. The court
found that substantial questions had been raised regarding identifiable
potential impacts from site specific activities.\802\ In contrast, the
final rule does not authorize any site-specific activities for which
there are identifiable potential impacts; as discussed above, the final
rule does not authorize any specific projects.
---------------------------------------------------------------------------

    \798\ Northwest Coalition Request for Rehearing at 57 (citing
LaFlamme v. FERC, 852 F.2d at 397); Public Interest Organizations
Request for Rehearing at 17 (citing Greenpeace Action v. Franklin,
14 F.3d at 1332).
    \799\ Foundation for N. Am. Wild Sheep v. USDA, 681 F.2d 1172,
1177-78 (9th Cir. 1982).
    \800\ Order No. 872, 172 FERC ] 61,041 at PP 717-19, 731-36.
    \801\ LaFlamme v. FERC, 852 F.2d at 389.
    \802\ Id. at 397 (finding that substantial questions were raised
about potential ``significant environmental degradation [of a
hydropower project] due to both its site-specific impact on
recreational use and visual quality and its cumulative impact[s]'').
---------------------------------------------------------------------------

    431. Greenpeace Action v. Franklin \803\ is similarly inapposite.
There, the National Marine Fisheries Service prepared an EA for
proposed fishery harvest specifications for pollock that concluded in a
finding of no significant impacts on the Stellar sea lion, whose diet
included a significant amount of pollock.\804\ The National Marine
Fisheries Service determined that, while it was uncertain there would
be adverse impacts on the Stellar sea lion, it would take precautions
and impose management measures to provide an adequate buffer against
any adverse impacts. The court rejected plaintiff's claim that the
National Marine Fisheries Service should have prepared an EIS based on
plaintiff's competing affidavits with respect to National Marine
Fisheries Service's findings. While the court cited the general
principle that an agency must prepare an EIS if substantial questions
are raised as to environmental impacts, the court found that
petitioner's affidavits did not set forth facts demonstrating there
would be significant impacts on the Stellar sea lion; rather they only
demonstrated ``uncertainty as to how pollock fishing affects the sea
lion, which is undisputed.'' \805\ The court declined to set aside the
National Marine Fisheries Service's findings because there was no
disagreement over whether the proposed action impact may have a
significant impact on the environment but rather ``represent[ed] a
difference of scientific opinion'' over the extent of potential
impacts.\806\
---------------------------------------------------------------------------

    \803\ Greenpeace Action v. Franklin, 14 F.3d 1324.
    \804\ Id. at 1327.
    \805\ Id. at 1333.
    \806\ Id. (emphasis added). Plaintiffs in this case also cited
several cases to support its claim that the very existence of
uncertainty mandates the preparation of an EIS. However, the court
noted that because the cases cited ``deal not with whether an impact
statement should be prepared, but with what information should be
included in an impact statement after it has been judged necessary,
they do not stand for the proposition that the existence of
uncertainty mandates the preparation of an impact statement.'' Id.
at 1334 n.11.
---------------------------------------------------------------------------

    432. We also reject Northwest Coalition's claim that the Commission
must consider the impacts of reasonably foreseeable future actions even
if there is no specific proposal, asserting there are previous
experiences on how states have allegedly reacted to prior PURPA
Regulations. Specifically, Northwest Coalition argues the Commission
must assume that under the new rules the states will eliminate the
right to fixed-price contracts and, therefore, the development of new
QFs will halt.\807\ Public Interest Organizations allege that the
environmental impacts of removing major incentives for emissions-free
renewable resources will be significant and far-reaching \808\
Northwest Coalition's and Public Interest Organizations' arguments
would require the Commission first to make highly speculative and
hypothetical assumptions about future state action on QFs and that all
QFs are renewables, as well as unrealistic and unsupported assumptions
as to whether such actions would impact renewable QFs more than
emitting QFs.
---------------------------------------------------------------------------

    \807\ Northwest Coalition Request for Rehearing at 59.
    \808\ Public Interest Organizations Request for Rehearing at 34.
---------------------------------------------------------------------------

    433. As discussed in the final rule, an agency ``is not required to
engage in speculative analysis'' or ``to do the impractical, if not
enough information is available to permit meaningful consideration'' or
to ``foresee the unforeseeable.'' \809\ Further, the Commission
explained that the final rule ``continues to give states wide
discretion and it is impossible to know what the states may choose to
do in response to [the final rule], whether they will make changes in
their current practices or not, and how those state choices would
impact QF development and the environment in any particular state, let
alone any particular locale.'' \810\
---------------------------------------------------------------------------

    \809\ See Order No. 872, 172 FERC ] 61,041 at P 716 (citing N.
Plains Res. Council v. Surface Transp. Board, 668 F.3d at 1078-79;
Concerned About Trident v. Rumsfeld, 555 F.2d at 830).
    \810\ Id. P 714.
---------------------------------------------------------------------------

    434. Public Interest Organizations cite National Parks &
Conservation Ass'n v. Babbitt for the proposition that an EA or EIS is
required ``where uncertainty may be resolved by further collection of
data.\811\ Here, attempting to collect further data or information
would not resolve uncertainty; the Commission has explained that it is
not possible to collect detailed or quantifiable information regarding
future QF development.\812\ This contrasts with National Parks &
Conservation Ass'n v. Babbitt, where the National Park Service issued
an EA finding that a substantial increase in cruise ship traffic
entering Glacier Bay National Park and Preserve would have no
significant impact on the environment. In requiring the National

Park Service to prepare an EIS, the court explained that scientific
evidence provided by the National Park Service's own studies ``revealed
very definite environmental effects,'' and the National Park Service's
EA established that information was ``obtainable and that it would be
of substantial assistance'' in considering the environmental impacts of
the increased cruise ship traffic.\813\
---------------------------------------------------------------------------

    \811\ National Parks & Conservation Ass'n v. Babbitt, 241 F.3d
722, 732 (9th Cir. 2001) (emphasis added).
    \812\ We also disagree with Public Interest Organizations'
assertion that because the Commission is faced with incomplete or
unavailable information, the CEQ regulations state the Commission
must include in an EIS a summary of existing credible scientific
evidence that is relevant to evaluating the reasonably foreseeable
impacts of a proposed action. Public Interest Organizations Request
for Rehearing at 23-24 (citing 40 CFR 1502.22(b)(3)-(b)(4)). This
regulation is inapplicable to the final rule, as it contemplates
that an EIS has been prepared, and that there are reasonably
foreseeable impacts for which existing credible scientific evidence
may be relevant (emphasis added). The Commission did not prepare an
EIS because there are no reasonably foreseeable impacts for the
reasons discussed in the final rule and herein.
    \813\ National Parks & Conservation Ass'n v. Babbitt, 241 F.3d
732.
---------------------------------------------------------------------------

    435. We also reject Northwest Coalition's and Public Interest
Organizations' claims that the Commission improperly relied on Center
for Biological Diversity v. Ilano, because, they assert, the final rule
legally alters the ``status quo.'' The court in Center for Biological
Diversity held that an EIS is not required where a proposed action does
not change the status quo, and defined changes in the status quo as
those ``alter[ing] future land use or otherwise foreseeably impact[ing]
the environment.'' \814\ The court further explained that `` `[l]ong-
range aims are quite different from concrete plans,' and `NEPA does not
require an agency to consider the environmental effects that
speculative or hypothetical projects might have . . . .' '' \815\ While
the final rule results in changes to the implementation of the original
PURPA Regulations, the final rule does not change the status quo as
contemplated by NEPA. It does not direct or preclude the development of
any project or otherwise require entities to take actions that
foreseeably alter future land use or otherwise result in foreseeable
environmental impacts. As discussed in the final rule, it is not
possible to make simplifying assumptions that the mere implementation
of the revised regulations necessarily would result in specific changes
in the development of particular generation technologies compared to
the status quo.\816\ The final rule is premised on a finding that, even
after the revisions, the PURPA Regulations will continue to encourage
QF development while addressing concerns about how PURPA works in
today's electric markets; therefore, there it cannot be presumed that
the rule will result in a reduction in QF development or a change in
the type of QFs that are built. The impact, if any, of the final rule
on QF development is both uncertain or unknowable.\817\ As the court
found in Center for Biological Diversity, such speculative
environmental consequences are not required to be analyzed under
NEPA.\818\ Thus, the Commission cannot analyze environmental impacts in
this case, when such an analysis could only be done if multiple,
unlikely, and unreasonable assumptions are made as to the variables
above.\819\
---------------------------------------------------------------------------

    \814\ Ctr. for Biological Diversity v. Ilano, 928 F.3d at 781.
    \815\ Id. at 780 (quoting Northcoast Envtl. Ctr. v. Glickman,
136 F.3d at 668).
    \816\ Order No. 872, 172 FERC ] 61,041 at P 733.
    \817\ Id. P 716 (citing Dep't of Transp. v. Pub. Citizen, 541
U.S. at 767; Metro. Edison Co. v. People Against Nuclear Energy, 460
U.S. at 774).
    \818\ Ctr. for Biological Diversity, 928 F.3d at 781 (citing
Northcoast Envtl. Ctr. v. Glickman, 136 F.3d at 668).
    \819\ See Order No. 872, 172 FERC ] 61,041 at PP 733-35.
---------------------------------------------------------------------------

2. A Categorical Exclusion Applies
    436. The Commission found as a separate and independent alternative
basis for concluding that no environmental analysis is warranted that
the final rule falls within the categorical exclusion for rules that,
as relevant here: (1) Are clarifying in nature; (2) are corrective in
nature; or (3) are procedural in nature.\820\
---------------------------------------------------------------------------

    \820\ Id. P 720 (citing 18 CFR 380.4(a)(2)(ii)). The exclusion
applies to a fourth type of rule, the promulgation of regulations
``that do not substantially change the effect of . . . regulations
being amended.'' Further, although not challenged on rehearing, the
final rule noted two revisions that are procedural in nature: The
revision to procedures that apply to QF certification and the
revision to the Commission's Form No. 556, used by QFs seeking
certification. Id. P 727.
---------------------------------------------------------------------------

    437. The Commission explained that clarifying changes include those
that clarify how market prices can be used to set as-available energy
rates, the changes clarifying how fixed energy rates in contracts or
LEOs may be determined, and the changes clarifying how competitive
solicitations can be used to set avoided cost rates.\821\
---------------------------------------------------------------------------

    \821\ Id. P 721.
---------------------------------------------------------------------------

    438. The Commission stated that corrective changes include those
needed in order to ensure that a regulation conforms to the
requirements of the statutory provisions being implemented by the
regulation. The Commission noted that it does not find that its
existing PURPA Regulations were inconsistent with the statutory
requirements of PURPA when promulgated. The Commission found instead
that the changes adopted in the final rule are required to ensure
continued future compliance of the PURPA Regulations with PURPA, based
on the changed circumstances found by the Commission in the final
rule.\822\
---------------------------------------------------------------------------

    \822\ Id. P 722.
---------------------------------------------------------------------------

    439. The Commission found that three aspects of the final rule are
corrective in nature. The first is the change allowing states to
require variable energy rates in QF contracts. The Commission explained
this change is required based on the Commission's finding that,
contrary to the Commission's expectation in 1980, there have been
numerous instances where overestimates and underestimates of energy
avoided costs used in fixed energy rate contracts have not balanced
out, causing the contract rate to violate the statutory avoided cost
rate cap. The Commission explained that giving states the ability to
require energy rates in QF contracts to vary based on the purchasing
utility's avoided cost of energy at the time of delivery ensures that
QF rates do not exceed the avoided cost rate cap imposed by PURPA.\823\
---------------------------------------------------------------------------

    \823\ Id. P 723.
---------------------------------------------------------------------------

    440. The second corrective aspect is the change in the PURPA
Regulations regarding the determination of what facilities are located
at the same site for purposes of complying with the statutory 80 MW
limit on small power production facilities located at the same
site.\824\ The Commission explained that it found, based on changed
circumstances, that the current one-mile rule is inadequate to
determine which facilities are located at the same site. The Commission
determined that, based on this finding, the Commission was obligated by
PURPA to revise its definition of when facilities are located at the
same site.\825\
---------------------------------------------------------------------------

    \824\ Id. P 724.
    \825\ Id.
---------------------------------------------------------------------------

    441. The third corrective aspect relates to the implementation of
PURPA section 210(m). The Commission explained that this statutory
provision allows purchasing utilities to terminate their obligation to
purchase from QFs that have nondiscriminatory access to certain
statutorily-defined markets, which the Commission has determined to be
the RTO/ISO markets.\826\ The Commission explained that the final rule
updates the presumption in the PURPA Regulations that QFs with a
capacity of 20 MW or less do not have non-discriminatory access to such
markets, reducing the threshold for such presumption to 5 MW.\827\
---------------------------------------------------------------------------

    \826\ Id. P 725.
    \827\ Id.
---------------------------------------------------------------------------

    442. The Commission explained that, since the 20-MW threshold was
established in 2005, the RTO/ISO markets have matured and the industry
has developed a better understanding of the mechanics of market
participation.\828\ The Commission added that this determination
rendered inaccurate the presumption currently

reflected in the PURPA Regulations that QFs of 20 MW and below do not
have non-discriminatory access to the relevant markets.\829\ The
Commission explained that, once the Commission made this determination,
it was appropriate for the Commission to update the 20 MW threshold to
comply with the requirements of PURPA section 210(m).\830\
---------------------------------------------------------------------------

    \828\ Id. P 726.
    \829\ Id.
    \830\ Id.
---------------------------------------------------------------------------

a. Exception to Categorical Exclusion
i. Requests for Rehearing
    443. Northwest Coalition and Public Interest Organizations assert
that, as a threshold matter, the final rule does not qualify for a
categorical exclusion because the Commission's regulations provide
that, ``[w]here circumstances indicate that an action may be a major
Federal action significantly affecting the quality of the human
environment,'' the Commission will prepare either an EA or an EIS.\831\
They add that the Commission's regulations provide that an exception to
a categorical exclusion may exist ``[w]here the environmental effects
are uncertain.'' \832\
---------------------------------------------------------------------------

    \831\ Northwest Coalition Request for Rehearing at 62; Public
Interest Organizations Request for Rehearing at 36 (citing 18 CFR
380.4(b)(1)).
    \832\ Northwest Coalition Request for Rehearing at 62; Public
Interest Organizations Request for Rehearing at 36 (citing 18 CFR
380.4(b)(1)).
---------------------------------------------------------------------------

ii. Commission Determination
    444. We disagree that the Commission's exceptions to categorical
exclusions preclude the application of a categorical exclusion to the
final rule. The CEQ regulations state that a categorical exclusion
applies to an action that does not individually or cumulatively have a
significant effect on the environment and an agency's categorical
exclusion procedures should provide for limitations on the use of a
categorical exclusion where ``extraordinary circumstances'' indicate
that a normally excluded action may have a significant environmental
effect.\833\ The Commission's regulations provide a list of these
extraordinary circumstances, which are effects on Indian lands;
Wilderness areas; Wild and Scenic rivers; Wetlands; Units of the
National Park System, National Refuges, or National Fish Hatcheries;
Anadromous fish or endangered species; or where environmental effects
are uncertain.\834\ None of these extraordinary circumstances are
present here except to the extent the environmental effects are
uncertain. The final rule explained in detail why any potential
environmental impacts are uncertain and unknown as they are too
speculative to provide an EA or EIS that would meaningfully inform the
Commission.\835\ In any case, the Commission's regulations state that
the presence of one or more of the extraordinary circumstances ``will
not automatically require . . . the preparation of an environmental
assessment or an environmental impact statement.'' \836\
---------------------------------------------------------------------------

    \833\ 40 CFR 1508.4.
    \834\ 18 CFR 380.4(b)(ii).
    \835\ Order No. 872, 172 FERC ] 61,041 at P 716.
    \836\ 18 CFR 380.4.
---------------------------------------------------------------------------

b. Applying a Categorical Exclusion for Clarifying and Corrective
Actions Is Appropriate
i. Requests for Rehearing
    445. Northwest Coalition and Public Interest Organizations also
dispute that the final rule falls under the categorical exclusion for
actions that are clarifying or corrective in nature.\837\ Northwest
Coalition argues that the final rule is not merely clarifying in nature
but rather a major change in policy.\838\ Northwest Coalition
highlights what it deems the Commission's decision to change its long-
standing precedent by allowing use of RFPs as the exclusive means for
all QFs to obtain a long-term contract to sell energy and
capacity.\839\ Northwest Coalition further argues that overruling
existing precedent is not clarifying and the new policy will result in
loss of existing QF capacity.\840\
---------------------------------------------------------------------------

    \837\ Northwest Coalition Request for Rehearing at 62-63; Public
Interest Organizations Request for Rehearing at 35.
    \838\ Northwest Coalition Request for Rehearing at 63.
    \839\ Id. We address in section III.B.5 above Northwest
Coalition's challenge to the competitive solicitation framework
itself.
    \840\ Id.
---------------------------------------------------------------------------

    446. Northwest Coalition asserts that the Commission's reliance on
the `corrective' exclusion fails because it is contrary to what
Northwest Coalition deems the ``obvious intent'' of the categorical
exclusion for corrective changes to regulations.'' \841\ Northwest
Coalition opines that the categorical exclusion applies only to an
action ``to correct an error, such as a misplaced word or mis-numbered
section.'' \842\ Northwest Coalition also contends that the Commission
cites no authority to find that changes that are corrective in nature
include ``changes needed in order to ensure that a regulation conforms
to the requirements of the statutory provisions being implemented by
the regulation.'' \843\ Northwest Coalition asserts that, as noted in
Commissioner Glick's dissent, this interpretation would exempt from
NEPA analysis virtually any action the Commission takes under any of
its enabling statutes.\844\
---------------------------------------------------------------------------

    \841\ Id. at 63-64.
    \842\ Id. at 64.
    \843\ Id. at 63 (quoting Order No. 872, 172 FERC ] 61,041 at P
722).
    \844\ Id. at 63-64 (citing Order No. 872, 172 FERC ] 61,041,
Glick, Comm'r, dissenting in part at P 26).
---------------------------------------------------------------------------

    447. Public Interest Organizations assert that the Commission fails
to cite precedent for using multiple exclusionary categories for ``such
an impactful rulemaking.'' \845\ Public Interest Organizations suggest
that doing so is a red flag that what they deem sweeping changes in the
final rule are not suited for a categorical exclusion.\846\
---------------------------------------------------------------------------

    \845\ Public Interest Organizations Request for Rehearing at 35-
36.
    \846\ Id. at 35.
---------------------------------------------------------------------------

    448. Finally, Public Interest Organizations argue the Commission
failed to engage in the appropriate scoping in determining that a
categorical exclusion was appropriate. Public Interest Organizations
assert that CEQ regulations require a federal agency to engage in
scoping, which is defined in relevant part: ``There shall be an early
and open process for determining the scope of issues to be addressed
and for identifying the significant issues related to a proposed
action.'' \847\ Public Interest Organizations note that the CEQ
regulations define ``NEPA process'' to mean ``all measures necessary
for compliance with the requirements of section 2 and Title 1 of
NEPA.'' \848\ Public Interest Organizations conclude that taken
together, these two regulations require the application of scoping to
the entire NEPA process, including the application of a categorical
exclusion.\849\
---------------------------------------------------------------------------

    \847\ Id. at 41 (citing 40 CFR 1501.7).
    \848\ Id. (citing 40 CFR 1508.21).
    \849\ Id.
---------------------------------------------------------------------------

ii. Commission Determination
    449. We affirm the alternative finding that the final rule was
properly categorically excluded because it is clarifying and corrective
in nature. Northwest Coalition's arguments are based primarily on what
they deem to be the appropriate interpretation of the Commission's
categorical exclusion regulation, rather than providing supporting
precedent.\850\
---------------------------------------------------------------------------

    \850\ Northwest Coalition Request for Rehearing at 62-64.
---------------------------------------------------------------------------

    450. Northwest Coalition specifically challenges the use of the
clarifying categorical exclusion for the changes to the competitive
solicitation process (allowing the use of RFPs as the means for QFs to
obtain long-term

contracts).\851\ We affirm that the final rule's treatment of
competitive solicitations is clarifying in nature because competitive
solicitations are already often used by industry to set capacity rates
in both PURPA and non-PURPA contexts. Additionally, by including the
standards discussed in the Allegheny Principles and elaborating on how
states may conduct competitive solicitations as the Commission
explained in prior precedent,\852\ the Commission clarified,
formalized, and consolidated existing policy.\853\ Finally, the final
rule clarifies and follows logically from Commission precedent by
requiring that, if a utility places its own capacity in competitive
solicitations held at regular intervals and satisfies its capacity
needs only through competitive solicitations following the procedural
requirements formalized in the final rule, then that utility need not
have an alternative avoided cost capacity rate for QFs because it no
longer has any avoided capacity costs.
---------------------------------------------------------------------------

    \851\ Id. at 63. We address in section III.B.5 above Northwest
Coalition's challenge to the competitive solicitation framework
itself.
    \852\ E.g., Hydrodynamics, 146 FERC ] 61,193 at PP 31-35; City
of Ketchikan, 94 FERC ] 61,293 at 62,061; Bidding NOPR, FERC Stats.
& Regs. ] 32,455 at 32,030-42.
    \853\ See Order No. 872, 172 FERC ] 61,041 at P 430 (citing
Allegheny Energy, 108 FERC ] 61,082 at P 18).
---------------------------------------------------------------------------

    451. We also affirm that the final rule was corrective in nature.
With respect to the challenge to variable energy rates in the QF
contracts or LEOs, the Commission found that, contrary to expectations
in 1980, there are numerous instances where overestimates and
underestimates of energy avoided costs used in fixed energy rates did
not balance-out over the long term.\854\ Such an imbalance resulted in
long-term fixed avoided cost energy rates well above the purchasing
utility's avoided costs for energy.\855\ This result is prohibited by
PURPA section 210(b).\856\ The Commission's actions to adjust the QF
rate framework are necessary to harmonize the Commission's regulations
with this underlying finding and to comply with the statutory
provisions of PURPA section 210(b).
---------------------------------------------------------------------------

    \854\ Id. PP 283, 723.
    \855\ Id. P 283.
    \856\ Id.
---------------------------------------------------------------------------

    452. We also find that the Commission's interpretation that
corrective actions include those that ensure that a regulation conforms
to the requirements of the statutory provisions being implemented by
the final rule is appropriate. We disagree that such an interpretation
sets a precedent for evading NEPA analysis for future Commission
actions. The Commission considers all matters before it, including
rulemakings, on a case-by-case basis to determine whether an EIS, EA or
a categorical exclusion is appropriate based on the facts and
circumstances of each matter. Further, in this case the Commission is
not relying on general statutory standards, such as the just and
reasonable standard under the FPA, but specific statutory requirements
that the Commission may not require above avoided cost rates, that
small power production facilities located at a single site may not
exceed 80 MW, and that the mandatory purchase obligation may be
terminated with respect to QFs with nondiscriminatory access to certain
markets.
    453. We also disagree with Public Interest Organizations' claim
that the Commission inappropriately relied on multiple exclusionary
categories in determining that the final rule was subject to a
categorical exclusion. As an alternative to its explanation that the
effect of the final rule are so speculative as to preclude the
preparation of an environmental analysis, the Commission applied a
single categorical exclusion that provides four possible bases for its
application, including, as relevant here, that the rulemaking is
clarifying, corrective, or procedural in nature. The categorical
exclusion does not limit the Commission to invoking only one of these
bases, nor do Public Interest Organizations elaborate on why the
Commission is precluded from doing so.
    454. Finally, contrary to Public Interest Organizations' claim, the
Commission was not required to initiate a scoping process for the
application of the categorical exclusion to the final rule. Public
Interest Organizations appear to erroneously conflate the definition of
``scoping process'' with the definition of ``NEPA process.'' The CEQ
regulations address requirements for scoping only when an EIS is
prepared.\857\ Notwithstanding that there is no requirement to provide
for scoping for a categorical exclusion, all commenters, including
Public Interest Organizations, now have had ample opportunity to
provide comments on the application of the categorical exclusion, which
they have presented in their rehearing requests.
---------------------------------------------------------------------------

    \857\ 40 CFR 1501.7 (``As soon as practicable after its decision
to prepare an environmental impact statement and before the scoping
process the lead agency shall publish a notice of intent'' to
prepare an EIS). Moreover, CEQ guidance addressing whether scoping
applies to EAs, states that where an EA is being prepared, ``useful
information might result from early participation . . . in a scoping
process'' CEQ, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18,026, Q. 13 (Mar. 17,
1981) (emphasis added).
---------------------------------------------------------------------------

3. That the Commission Prepared NEPA Analyses for the Promulgation of
the Original PURPA Rule and Other Prior Rulemakings Does Not Mean That
Such Analysis Was Possible or Required Here
    455. As discussed in the final rule, the Commission prepared an EA
and EIS for its initial rules implementing PURPA in 1980.\858\ The
Commission explained that the EA for Order No. 70 was based on a market
penetration study and that, to carry out the market penetration study,
the EA had to make the simplifying assumption that the mere
implementation of PURPA would necessarily result in the development and
operation of certain types of generation facilities that would not
otherwise be developed.\859\ The Commission stated that, based on these
types of facilities, the EA conducted in 1980 identified specific
resource conflicts related to each type of facility, which were nothing
more than a generalized listing of potential impacts.\860\
---------------------------------------------------------------------------

    \858\ Order No. 872, 172 FERC ] 61,041 at P 728.
    \859\ Id. P 729 (citing Order No. 70-E, 46 FR 33,025, 33,026
(June 18, 1981); Small Power Production and Cogeneration
Facilities--Environmental Findings; No Significant Impact and Notice
of Intent To Prepare Environmental Impact Statement, 45 FR 23,661,
23,664 (Apr. 8, 1980) (Original PURPA EA)).
    \860\ Original PURPA EA, 45 FR at 23,664.
---------------------------------------------------------------------------

    456. The Commission addressed comments on the NOPR that asserted
that a NEPA analysis similarly should be possible for this rulemaking.
The Commission explained that the assertions are undermined by the fact
that circumstances have changed significantly since the promulgation of
the original PURPA Regulations in 1980.\861\ The Commission explained
that, prior to 1980, essentially no QF generation technologies or other
independent generation facilities (other than those used to supply the
loads of the owners rather than to sell at wholesale) had been
constructed. The Commission explained that by contrast, today QF
generation technologies and other independent generation facilities are
common, and they are predominantly built and operated outside of PURPA.
---------------------------------------------------------------------------

    \861\ Order No. 872, 172 FERC ] 61,041 at P 731.
---------------------------------------------------------------------------

    457. The Commission further explained that, because there was
virtually no QF or independent power development in 1980, the original
PURPA EA could reasonably project that the incentives created by PURPA
and the original PURPA Regulations would lead to increased development
of

power generated by QF technologies.\862\ The Commission stated that its
market penetration study was based on these projections.
---------------------------------------------------------------------------

    \862\ Id. P 732.
---------------------------------------------------------------------------

    458. The Commission noted that, by contrast, it is not possible
here to make simplifying assumptions that the mere implementation of
the revised regulations necessarily would result in specific changes in
the development of particular generation technologies compared to the
status quo.\863\ The Commission explained that the revisions to the
PURPA Regulations are premised on a finding that, even after the
revisions, the PURPA Regulations will continue to encourage QFs. The
Commission found that, consequently, there is no way to estimate
whether any reduction in QF development, as opposed to the status quo,
will be focused on one or more of the many different types of QF
technologies, some of which are renewable resources and some of which
are fueled by fossil fuels \864\ and have emissions comparable to non-
QF fossil fueled generators. The Commission explained that, because the
rule primarily increases state flexibility in setting QF rates,
including giving states the option of not changing their current rate-
setting approaches, there is no way to develop any estimate of the
location or size of any hypothetical reduction in QF development.
---------------------------------------------------------------------------

    \863\ Id. P 733.
    \864\ This would include both cogeneration, which typically is
fossil fueled, and those small power production facilities that are
fueled by waste, which would include a range of fossil fuel-based
waste. See 18 CFR 292.202(b), 292.204(b)(1).
---------------------------------------------------------------------------

    459. The Commission stated that renewable generation technologies
today are commonly, and even predominantly, built and operated outside
of PURPA.\865\ The Commission explained that current projections show
that most new generation construction will be of renewable resources
\866\ and cost of renewables has declined so much that in some regions
renewables are the most cost effective new generation technology
available.\867\ The Commission found that, even if the final rule were
to result in reduced renewable QF development, there is little
likelihood today that hypothetical, unbuilt QFs necessarily would be
replaced by new conventional fossil fuel generation.
---------------------------------------------------------------------------

    \865\ Order No. 872, 172 FERC ] 61,041 at P 734.
    \866\ EIA, Annual Energy Outlook 2020, at tbl. 9 (Jan. 29, 2020)
(in table see rows labeled Cumulative Planned Additions and
Cumulative Unplanned Additions in the reference case) (Annual Energy
Outlook 2020), https://www.eia.gov/outlooks/aeo/.
    \867\ Order No. 872, 172 FERC ] 61,041 at P 734.
---------------------------------------------------------------------------

    460. The Commission found that, alternatively, in the absence of
these hypothetical, unbuilt QFs, existing generation units--whose
current emissions, if any, would already be part of the baseline for
any environmental analysis of the impacts of the final rule--might
continue to operate without any change in their emissions; in sum, in
the absence of these hypothetical, unbuilt QFs, emissions would remain
at the baseline and might not increase at all.\868\ The Commission
explained that, in the current environment where stagnant load growth
has prevailed in recent years, this would seem to be a more likely
scenario than an alternative where these hypothetical, unbuilt QFs are
replaced by brand new fossil fuel generation that would increase
emissions over the baseline.
---------------------------------------------------------------------------

    \868\ Id. P 735.
---------------------------------------------------------------------------

    461. The Commission explained that, given these facts, it would not
be possible to perform a market penetration study of the effects of the
final rule that would not be wholly speculative.\869\ The Commission
found that, without such a study, there could be no analysis defining
the types and geographic location of facilities that could serve as the
basis for any NEPA analysis similar to that performed in 1980.
---------------------------------------------------------------------------

    \869\ Id. P 736.
---------------------------------------------------------------------------

a. Requests for Rehearing
    462. Northwest Coalition and Public Interest Organizations assert
that, in addition to the NEPA analysis for Order No. 70, the Commission
has conducted a NEPA analysis for prior rulemakings, which they argue
undermines the Commission's claim that the impacts here are too
speculative and uncertain to prepare an EA or EIS.\870\ Specifically,
Northwest Coalition and Public Interest Organizations point to the
competitive bidding NOPR under section 210 of PURPA \871\ and Order No.
888.\872\
---------------------------------------------------------------------------

    \870\ Northwest Coalition Request for Rehearing at 59; Public
Interest Organizations Request for Rehearing at 26-30.
    \871\ Northwest Coalition Request for Rehearing at 59; Public
Interest Organizations Request for Rehearing at 28 (citing Bidding
NOPR, FERC Stats. & Regs. ] 32,455 at 32,047).
    \872\ Northwest Coalition Request for Rehearing at 59; Public
Interest Organizations Request for Rehearing at 29 (citing Promoting
Wholesale Competition Through Open Access Non-Discriminatory
Transmission Services by Public Utilities; Recovery of Stranded
Costs by Public Utilities and Transmitting Utilities, Order No. 888,
FERC Stats. & Regs. ] 31,036 (1996) (cross-referenced at 75 FERC ]
61,080 and 61 FR 21,540 (May 10, 1996)), order on reh'g, Order No.
888-A, FERC Stats. & Regs. ] 31,048 (cross-referenced at 78 FERC ]
61,220 and 62 FR 12,274 (Mar. 14, 1997)), order on reh'g, Order No.
888-B, 81 FERC ] 61,248 (1997) (cross-referenced at 62 FR 64,688
(Dec. 9, 1997), order on reh'g, Order No. 888-C, 82 FERC ] 61,046
(1998), aff'd in relevant part sub nom. Transmission Access Pol'y
Study Grp. v. FERC, 225 F.3d 667, aff'd sub nom. N.Y. v. FERC, 535
U.S. 1 (2002)).
---------------------------------------------------------------------------

    463. Public Interest Organizations argue that, because an EA was
prepared for Order No. 70, the Commission ``has experience doing the
very thing it alleges is so impossibly burdensome.'' \873\ Public
Interest Organizations add that, with respect to Order No. 70, the
Commission acknowledged that its NEPA analysis contains uncertainties
but is nevertheless required to assess the environmental effects to the
fullest extent possible.\874\ They add that Order No. 70 states that
the proposed rules did not authorize or fund a particular project or
forbid or authorize the use of certain fuels, but the Commission
nevertheless prepared a NEPA analysis.\875\ Public Interest
Organizations also argue that, in Order No. 70, the Commission was able
to develop a specific methodology for predicting its effects on QF
development and should be able to do so here as well.\876\
---------------------------------------------------------------------------

    \873\ Public Interest Organizations Request for Rehearing at 26.
    \874\ Id. at 26-27 (citing Order No. 70, FERC Stats. & Regs. ]
30,134).
    \875\ Id. at 27.
    \876\ Id.
---------------------------------------------------------------------------

    464. Northwest Coalition asserts that that the Commission's
statement in the final rule that the NEPA analysis for Order No. 70 was
simpler (because very few renewable cogeneration facilities were online
prior to the rule) fails to address how the Commission was able to
conduct NEPA analyses for later rulemakings with equal or greater
magnitude and complexity than the current case.\877\ Similarly, Public
Interest Organizations claim that the Commission cannot underplay its
past modeling efforts and could use similar methodology, or
advancements in modern modeling software that has significantly
improved over the last 40 years, to model the final rule's potential
impacts.\878\ As an example, Northwest Coalition and Public Interest
Organizations point to the Commission's environmental analysis for the
competitive bidding NOPR and Order No. 888, which they claim involved
uncertainties and more complex market changes than the final rule.\879\
Related to Order No. 888 specifically, Public Interest Organizations
argue that the

Commission was able to conduct complex modeling to forecast emissions
based on simulations of power generation patterns and should be able to
reverse the modeling here to forecast the effects of the final
rule.\880\
---------------------------------------------------------------------------

    \877\ Northwest Coalition Request for Rehearing at 59.
    \878\ Public Interest Organizations Request for Rehearing at 29.
    \879\ Northwest Coalition Request for Rehearing at 59; Public
Interest Organizations Request for Rehearing at 28-29.
    \880\ Public Interest Organizations Request for Rehearing at 29-
30.
---------------------------------------------------------------------------

b. Commission Determination
    465. We reiterate that the Commission considers all matters before
it, including rulemakings, on a case-by-case basis as to whether an
EIS, EA, or a categorical exclusion is appropriate. As the Commission
stated in the final rule, the basis for its NEPA analysis for Order No.
70 was the ability to conduct a market penetration study.\881\ However,
circumstances since the promulgation of Order No. 70 have changed
significantly, making it impossible to perform a market penetration
study of the effects of the final rule that would not be wholly
speculative. This is due in large part to the fact that renewable
technologies that are commonly adopted by QFs are also commonly adopted
by non-QF generation developers today.\882\ In contrast, in 1980,
essentially no QF technologies, renewable or otherwise, were being
built by non-QFs.\883\ Thus, it was possible in 1980 to assume that
certain generation technologies would only be deployed if the PURPA
Regulations were issued, and that assumption enabled a market
penetration study that could underpin an analysis of the environmental
impact of deploying those technologies.\884\ These same assumptions
cannot be made today. Renewable technology, for example, is being
widely deployed without PURPA support; thus, it is impossible to assume
that any potential impact of this rule change will necessarily reduce
the deployment of renewables because PURPA is no longer the only route,
or even the predominant route, to such development.\885\ To the
contrary, as much as 90 percent of all renewable capacity placed in
service today was developed outside of PURPA.\886\
---------------------------------------------------------------------------

    \881\ Order No. 872, 172 FERC ] 61,041 at P 729.
    \882\ Id. P 731.
    \883\ Id.
    \884\ Id. PP 731-32.
    \885\ Id. PP 731-34.
    \886\ See id. P 240.
---------------------------------------------------------------------------

    466. We also disagree with Northwest Coalition's and Public
Interest Organizations' arguments that the Commission should be able to
prepare a NEPA analysis similar to those for the competitive bidding
NOPR and Order No. 888, using similar methodology and advancements in
modern modeling software. Contrary to Northwest Coalition's and Public
Interest Organizations' assertions, the Commission's ability to prepare
NEPA analyses in these prior rulemakings does not facilitate our
ability to prepare an EA or EIS for this rulemaking. While we agree
that modelling technology has advanced since the Commission conducted a
NEPA analysis in these prior rulemakings, the Commission would be
required to make too many unsupported assumptions to undertake an
analysis in this case, which would result in a speculative and
meaningless analysis.
    467. For example, the Commission would need to assume that all
affected QFs would be renewables and all replacement utility generation
would be conventional emitting resources, which as previously explained
would not necessarily be true in either case.\887\ Similar to the
original PURPA rulemaking, the technologies that could qualify for QF
status and independent generation more broadly were not widely used
outside of the PURPA context when studies were conducted for the
competitive bidding NOPR, so the Commission could make basic
assumptions about the effects the competitive bidding NOPR would have
on QF development.\888\ The same assumptions cannot be made about the
final rule as the technologies that renewable QFs use are now
widespread and developed outside of PURPA, making any market
penetration study wholly speculative.
---------------------------------------------------------------------------

    \887\ Id. P 734.
    \888\ Id. PP 731-32.
---------------------------------------------------------------------------

    468. Finally, we disagree that the Commission could reverse
engineer the modeling used to forecast emissions based on simulations
of power generation patterns in Order No. 888 to forecast the effects
of the final rule in a NEPA analysis. The modeling from prior
rulemakings is not applicable here. Order No. 888 involved the direct
regulation of entities under the Commission's jurisdiction to impose
open access requirements, and it was possible to estimate potential
changes in conventional generation (gas and coal) development and
dispatch in light of the advent of open access to the transmission
grid.\889\ In contrast, under the final rule, and PURPA more generally,
the Commission sets rules for states and nonregulated electric
utilities to implement. The Commission cannot predict how the states
will choose to implement the final rule--if at all--and what effect
that will have on QF development, whether renewable QFs will be
impacted more than non-renewable QFs or whether non-QFs will develop
renewables or conventional generation.
---------------------------------------------------------------------------

    \889\ See Order No. 888, FERC Stats. & Regs. ] 31,036 at 31,861-
96.
---------------------------------------------------------------------------

V. Regulatory Flexibility Act Certification

    469. The Regulatory Flexibility Act of 1980 (RFA) \890\ generally
requires a description and analysis of rules that will have significant
economic impact on a substantial number of small entities. No comments
on the Regulatory Flexibility Act were filed on rehearing, and the
comments on rehearing regarding burden and cost estimates are addressed
in the Information Collection Statement section.
---------------------------------------------------------------------------

    \890\ 5 U.S.C. 601-12.
---------------------------------------------------------------------------

    470. As discussed in the final rule, we estimate that annual
additional compliance costs on industry (detailed above) will be
approximately $1,149,965 (or an average additional burden and cost per
response, of 3.187 hrs. and the corresponding $264.51) to comply with
these requirements.\891\ Therefore, pursuant to section 605(b) of the
RFA, we still conclude that this rule will not have a significant
economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \891\ Order No. 872, 172 FERC ] 61,041 at P 748.
---------------------------------------------------------------------------

VI. Document Availability

    471. In addition to publishing the full text of this document in
the Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
    472. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
    473. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>

VII. Effective Dates and Congressional Notification

    474. The further revised regulation in this order is effective
February 16, 2021. No other changes to the Commission's regulations
have been made on rehearing to the final rule, however we modify the
instructions to the Form No. 556. Out of an abundance of caution, this
order addressing arguments raised on rehearing is being submitted to
the Administrator of the Office of Information and Regulatory Affairs
of OMB, Senate, House, and Government Accountability Office.

List of Subjects in 18 CFR Part 292

    Electric power plants; Electric utilities, Reporting and
recordkeeping requirements.

    By the Commission. Commissioner Glick is dissenting in part with
a separate statement attached.

    Issued: November 19, 2020.
Kimberly D. Bose,
Secretary.
    In consideration of the foregoing, the Commission amends part 292,
chapter I, title 18, Code of Federal Regulations, as follows.

SUBCHAPTER K--REGULATIONS UNDER THE PUBLIC UTILITY REGULATORY
POLICIES ACT OF 1978

* * * * *

PART 292--REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC
UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER
PRODUCTION AND COGENERATION

0
1. The authority citation for part 292 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.

0
2. Amend Sec.  292.309 by revising paragraphs (c), (d), (e), and (f) to
read as follows:

Sec.  292.309  Termination of obligation to purchase from qualifying
facilities.

* * * * *
    (c) For purposes of paragraphs (a)(1), (2) and (3) of this section,
with the exception of paragraph (d) of this section, there is a
rebuttable presumption that a qualifying facility has nondiscriminatory
access to the market if it is eligible for service under a Commission-
approved open access transmission tariff or Commission-filed
reciprocity tariff, and Commission-approved interconnection rules.
    (1) If the Commission determines that a market meets the criteria
of paragraphs (a)(1), (2) or (3) of this section, and if a qualifying
facility in the relevant market is eligible for service under a
Commission-approved open access transmission tariff or Commission-filed
reciprocity tariff, a qualifying facility may seek to rebut the
presumption of access to the market by demonstrating, inter alia, that
it does not have access to the market because of operational
characteristics or transmission constraints.
    (2) For purposes of paragraphs (a)(1), (2), and (3) of this
section, a qualifying small power production facility with a capacity
between 5 megawatts and 20 megawatts may additionally seek to rebut the
presumption of access to the market by demonstrating that it does not
have access to the market in light of consideration of other factors,
including, but not limited to:
    (i) Specific barriers to connecting to the interstate transmission
grid, such as excessively high costs and pancaked delivery rates;
    (ii) Unique circumstances impacting the time or length of
interconnection studies or queues to process the small power production
facility's interconnection request;
    (iii) A lack of affiliation with entities that participate in the
markets in paragraphs (a)(1), (2), and (3) of this section;
    (iv) The qualifying small power production facility has a
predominant purpose other than selling electricity and should be
treated similarly to qualifying cogeneration facilities;
    (v) The qualifying small power production facility has certain
operational characteristics that effectively prevent the qualifying
facility's participation in a market; or
    (vi) The qualifying small power production facility lacks access to
markets due to transmission constraints. The qualifying small power
production facility may show that it is located in an area where
persistent transmission constraints in effect cause the qualifying
facility not to have access to markets outside a persistently congested
area to sell the qualifying facility output or capacity.
    (d)(1) For purposes of paragraphs (a)(1), (2), and (3) of this
section, there is a rebuttable presumption that a qualifying
cogeneration facility with a capacity at or below 20 megawatts does not
have nondiscriminatory access to the market.
    (2) For purposes of paragraphs (a)(1), (2), and (3) of this
section, there is a rebuttable presumption that a qualifying small
power production facility with a capacity at or below 5 megawatts does
not have nondiscriminatory access to the market.
    (3) Nothing in paragraphs (d)(1) through (3) affects the rights the
rights or remedies of any party under any contract or obligation, in
effect or pending approval before the appropriate State regulatory
authority or non-regulated electric utility on or before February 16,
2021, to purchase electric energy or capacity from or to sell electric
energy or capacity to a small power production facility between 5
megawatts and 20 megawatts under this Act (including the right to
recover costs of purchasing electric energy or capacity).
    (4) For purposes of implementing paragraphs (d)(1) and (2) of this
section, the Commission will not be bound by the standards set forth in
Sec.  292.204(a)(2).
    (e) Midcontinent Independent System Operator, Inc. (MISO), PJM
Interconnection, L.L.C. (PJM), ISO New England Inc. (ISO-NE), and New
York Independent System Operator, Inc. (NYISO) qualify as markets
described in paragraphs (a)(1)(i) and (ii) of this section, and there
is a rebuttable presumption that small power production facilities with
a capacity greater than 5 megawatts and cogeneration facilities with a
capacity greater than 20 megawatts have nondiscriminatory access to
those markets through Commission-approved open access transmission
tariffs and interconnection rules, and that electric utilities that are
members of such regional transmission organizations or independent
system operators should be relieved of the obligation to purchase
electric energy from the qualifying facilities.
    (1) A qualifying facility above 20 MW may seek to rebut this
presumption by demonstrating, inter alia, that:
    (i) The qualifying facility has certain operational characteristics
that effectively prevent the qualifying facility's participation in a
market; or
    (ii) The qualifying facility lacks access to markets due to
transmission constraints. The qualifying facility may show that it is
located in an area where persistent transmission constraints in effect
cause the qualifying facility not to have access to markets outside a
persistently congested area to sell the qualifying facility output or
capacity.
    (2) A small power producer qualifying facility between 5 megawatts
and 20 megawatts may show it does not have access to the market in
light of consideration of other factors, including, but not limited to:
    (i) Specific barriers to connecting to the interstate transmission
grid, such as excessively high costs and pancaked delivery rates;

    (ii) Unique circumstances impacting the time or length of
interconnection studies or queues to process the small power production
facility's interconnection request;
    (iii) A lack of affiliation with entities that participate in the
markets in section Sec.  292.309(a)(1), (2), and (3);
    (iv) The qualifying small power production facility has a
predominant purpose other than selling electricity and should be
treated similarly to qualifying cogeneration facilities;
    (v) The qualifying small power production facility has certain
operational characteristics that effectively prevent the qualifying
facility's participation in a market; or
    (vi) The qualifying small power production facility lacks access to
markets due to transmission constraints. The qualifying small power
production facility may show that it is located in an area where
persistent transmission constraints in effect cause the qualifying
facility not to have access to markets outside a persistently congested
area to sell the qualifying facility output or capacity.
    (f) The Electric Reliability Council of Texas (ERCOT) qualifies as
a market described in paragraph (a)(3) of this section, and there is a
rebuttable presumption that small power production facilities with a
capacity greater than five megawatts and cogeneration facilities with a
capacity greater than 20 megawatts have nondiscriminatory access to
that market through Public Utility Commission of Texas (PUCT) approved
open access protocols, and that electric utilities that operate within
ERCOT should be relieved of the obligation to purchase electric energy
from the qualifying facilities.
    (1) A qualifying facility above 20 MW may seek to rebut this
presumption by demonstrating, inter alia, that:
    (i) The qualifying facility has certain operational characteristics
that effectively prevent the qualifying facility's participation in a
market; or
    (ii) The qualifying facility lacks access to markets due to
transmission constraints. The qualifying facility may show that it is
located in an area where persistent transmission constraints in effect
cause the qualifying facility not to have access to markets outside a
persistently congested area to sell the qualifying facility output or
capacity.
    (2) A small power producer qualifying facility between 5 megawatts
and 20 megawatts may show it does not have access to the market in
light of consideration of other factors, including, but not limited to:
    (i) Specific barriers to connecting to the interstate transmission
grid, such as excessively high costs and pancaked delivery rates;
    (ii) Unique circumstances impacting the time or length of
interconnection studies or queues to process the small power production
facility's interconnection request;
    (iii) A lack of affiliation with entities that participate in the
markets in section Sec.  292.309(a)(1), (2), and (3);
    (iv) The qualifying small power production facility has a
predominant purpose other than selling electricity and should be
treated similarly to qualifying cogeneration facilities;
    (v) The qualifying small power production facility has certain
operational characteristics that effectively prevent the qualifying
facility's participation in a market; or
    (vi) The qualifying small power production facility lacks access to
markets due to transmission constraints. The qualifying small power
production facility may show that it is located in an area where
persistent transmission constraints in effect cause the qualifying
facility not to have access to markets outside a persistently congested
area to sell the qualifying facility output or capacity.
* * * * *

    Note:  The following appendix will not appear in the Code of
Federal Regulations.

Appendix B

Revised Form No. 556

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BILLING CODE 6717-01-C

United States of America

Federal Energy Regulatory Commission

------------------------------------------------------------------------
                                                            Docket Nos.
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Qualifying Facility Rates and Requirements..............     RM19-15-001
Implementation Issues Under the Public Utility               AD16-16-001
 Regulatory Policies Act of 1978........................
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(Issued November 19, 2020)

    GLICK, Commissioner, dissenting in part:
    1. I dissent in part from today's order on rehearing (Rehearing
Order \1\) because it upholds the overwhelming majority of Order No.
872,\2\ which effectively gutted the Commission's implementation of
the Public Utility Regulatory Policies Act (PURPA).\3\ The
Commission's basic responsibilities under PURPA are three-fold: (1)
To encourage the development of qualifying facilities (QFs); (2) to
prevent discrimination against QFs by incumbent utilities; and (3)
to ensure that the resulting rates paid by electricity customers
remain just and reasonable, in the public interest, and do not
exceed the incremental costs to the utility of alternative
energy.\4\ I do not believe that Order No. 872 satisfies those
responsibilities.
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    \1\ Qualifying Facility Rates and Requirements Implementation
Issues Under the Public Utility Regulatory Policies Act of 1978,
Order No. 872-A, 173 FERC ] 61,158 (2020).
    \2\ Qualifying Facility Rates and Requirements Implementation
Issues Under the Public Utility Regulatory Policies Act of 1978,
Order No. 872, 172 FERC ] 61,041 (2020).
    \3\ Public Law 95-617, 92 Stat. 3117 (1978).
    \4\ See 16 U.S.C. 824a-3(a)-(b) (2018).
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    2. Although I have concerns about many of the individual changes
imposed by the Order No. 872,\5\ I remain, on a broader level,
dismayed that the Commission is attempting to accomplish via
administrative fiat what Congress has repeatedly declined to do via
legislation. I am especially disappointed because Congress expressly
provided the Commission with a different avenue for ``modernizing''
our administration of PURPA. The Energy Policy Act of 2005 gave the
Commission the authority to excuse utilities from their obligations
under PURPA where QFs have non-discriminatory access to competitive
wholesale markets.\6\ Had we pursued reforms based on those
provisions, rather than gutting our longstanding regulations, I
believe we could have reached a durable, consensus solution that
would ultimately have done more for all interested parties.
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    \5\ Those concerns notwithstanding, I supported certain aspects
of Order No. 872, including the revisions to the ``one-mile'' rule,
requiring that QFs demonstrate commercial viability before securing
a legally enforceable obligation, and allowing stakeholders to
protest a QF's self-certification. See Order No. 872, 172 FERC ]
61,041 (Glick, Comm'r, dissenting in part at n.4).
    \6\ Public Law 109-58, 1253, 119 Stat. 594 (2005).
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 PURPA's Continuing Relevance Is an Issue for Congress To
Decide

    3. This proceeding began with a bang. The Commission championed
its NOPR as a ``truly significant'' action that would fundamentally
overhaul the Commission's implementation of PURPA.\7\ And so it was.
The NOPR suggested altering almost every significant aspect of the
Commission's PURPA regulations, thereby transforming the foundation
on which the Commission had carried out its statutory responsibility
to ``encourage'' the development of QFs for over four decades.
Although Order No. 872 walked back some of the NOPR's most extreme
proposals, it adopted the overwhelming majority of the NOPR,
including all of its tenets. In so doing, the Commission upended the
regulatory regime that has formed the basis of its implementation of
PURPA almost since the day the statute was enacted.
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    \7\ Sept. 2019 Commission Meeting Tr. at 8.
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    4. I partially dissented from both the NOPR and Order No. 872 in
large part because I believe that it is not the Commission's role to
sit in judgment of a duly enacted statute and determine whether it
has outlived its usefulness. As I explained, ``almost from the
moment PURPA was passed, Congress began to hear many of the
arguments being used today to justify scaling the law back.'' \8\
Congress, however, has seen fit to significantly amend PURPA only
once in its more-than-forty-year lifespan. As part of the Energy
Policy Act of 2005, Congress amended PURPA, leaving in place the
law's basic framework, while adding a series of provisions that
allowed the Commission to excuse utilities from its requirements in
regions of the country with sufficiently competitive wholesale
energy markets.\9\ And while Congress considered numerous proposals
to further reform the law, it never saw fit to act on them.\10\
Against that background, I could not support my colleagues'
willingness to ``remove[ ] an important debate from the halls of
Congress and isolate[ ] it within the Commission.'' \11\ Whatever
your position on PURPA--and I recognize views vary widely--``what
should concern all of us is that resolving these sorts of questions
by regulatory edict rather than congressional legislation is neither
a durable nor desirable approach for developing energy policy.''
\12\
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    \8\ Qualifying Facility Rates and Requirements Implementation
Issues Under the Public Utility Regulatory Policies Act of 1978,
Notice of Proposed Rulemaking, 168 FERC ] 61,184 (2019) (NOPR)
(Glick, Comm'r, dissenting in part at P 3).
    \9\ Supra note 6.
    \10\ See Solar Energy Industries Association (SEIA) Comments at
11.
    \11\ NOPR, 168 FERC ] 61,184 (Glick, Comm'r, dissenting in part
at P 4).
    \12\ Id.
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    5. Order No. 872 and today's order on rehearing retreat from
much of the original rationale used to support the NOPR, but the
effect is the same: The Commission is administratively gutting
PURPA. Make no mistake, although the Commission has dropped much of
the NOPR preamble's opening screed against PURPA's continuing
relevance, Order No. 872 is a full-throated endorsement of the
conclusion that PURPA has outlived its usefulness. And while walking
back the argument that PURPA is antiquated may reduce the risk that
Order No. 872 is overturned on appeal, that does not change the fact
that the rule usurps what should be Congress's proper role.
    6. Throughout this proceeding, the Commission has been quick to
point to Congress's directive to from time to time amend our
regulations implementing PURPA.\13\ Order No. 872, however, is a
wholesale overhaul of the Commission's PURPA regulations that
reflects a deep skepticism of the need for the law we are charged
with implementing. I continue to doubt that is what Congress had in
mind when it gave us responsibility for periodically updating our
implementing regulations.
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    \13\ Order No. 872-A, 173 FERC ] 61,158 at P 115; Order No. 872,
172 FERC ] 61,041 at PP 24, 48, 54, 67, 296, 628; NOPR, 168 FERC ]
61,184 at PP 4, 16, 29, 155.
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 The Commission's Proposed Reforms Are Inconsistent With Our
Statutory Mandate

    7. PURPA directs the Commission to adopt such regulations as are
``necessary to encourage'' QFs,\14\ including by establishing rates
for sales by QFs that are just and reasonable and by ensuring that
such rates ``shall not discriminate'' against QFs.\15\ The changes
adopted by the Commission in Order No. 872 fail to meet that
standard. In addition, many of the reforms are unsupported--and, in
many cases, contradicted--by the evidence in the record.\16\
Accordingly, I believe Order No. 872 is not just poor public policy,
but also arbitrary and capricious agency action.
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    \14\ A QF is a cogeneration facility or a small power production
facility. See 18 CFR 292.101(b)(1) (2019).
    \15\ 16 U.S.C. 824a-3(a)-(b).
    \16\ Genuine Parts Co. v. EPA, 890 F.3d 304, 312 (D.C. Cir.
2018) (``[A]n agency cannot ignore evidence that undercuts its
judgment; and it may not minimize such evidence without adequate
explanation.'') (citations omitted); id. (``Conclusory explanations
for matters involving a central factual dispute where there is
considerable evidence in conflict do not suffice to meet the
deferential standards of our review.'' (quoting Int'l Union, United
Mine Workers v. Mine Safety & Health Admin., 626 F.3d 84, 94 (D.C.
Cir. 2010)).
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A. Avoided Cost

    8. The Final Rule adopted two fundamental changes to how QF
rates are determined. First, and most importantly, it eliminated the
requirement that a utility must afford a QF the option to enter a
contract at a rate for energy that is either fixed for the duration
of the contract or determined at the outset--e.g., based on a
forward curve reflecting estimated prices over the term of the
contract.\17\ Second, it presumptively allows states to set the rate
for as-available energy at the relevant locational marginal price
(LMP).\18\ The record in this proceeding does not support either of
those changes.
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    \17\ Order No. 872, 172 FERC ] 61,041 at P 253.
    \18\ Id. P 151.
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i. Elimination of Fixed Energy Rate

    9. Prior to Order No. 872, a QF generally had two options for
selling its output to a utility. Under the first option, the QF
could sell its energy on an as-available basis and

receive an avoided cost rate calculated at the time of delivery.
This is generally known as the as-available option. Under the second
option, a QF could enter into a fixed-duration contract at an
avoided cost rate that was fixed either at the time the QF
established a legally enforceable obligation (LEO) or at the time of
delivery. This is generally known as the contract option. The
ability to choose between the two options played an important role
in fostering the development of a variety of QFs. For example, the
as-available option provided a way for QFs whose principal business
was not generating electricity, such as industrial cogeneration
facilities, to monetize their excess electricity generation. The
contract option, by contrast, provided QFs who were principally in
the business of generating electricity, such as small renewable
electricity generators, a stable option that would allow them to
secure financing. Together, the presence of these two options
allowed the Commission to satisfy its statutory mandate to encourage
the development of QFs and ensured that the rates they received were
non-discriminatory.
    10. Order No. 872 eliminated the requirement that states provide
a contract option that includes a fixed energy rate.\19\ Prior to
this proceeding, the Commission recognized time and again that
fixed-price contracts play an essential role in financing QF
facilities, making them a necessary element of any effort to
encourage QF development, at least in certain regions of the
country.\20\ In addition, fixed-price contracts have helped prevent
discrimination against QFs by ensuring that they are not
structurally disadvantaged relative to vertically integrated
utilities that are guaranteed to recover the costs of their
prudently incurred investments through retail rates.\21\
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    \19\ Id. P 253.
    \20\ See, e.g., Small Power Production and Cogeneration
Facilities; Regulations Implementing Section 210 of the Public
Utility Regulatory Policies Act of 1978, Order No. 69, FERC Stats. &
Regs. ] 30,128, at 30,880, order on reh'g sub nom. Order No. 69-A,
FERC Stats. & Regs. ] 30,160 (1980), aff'd in part vacated in part,
Am. Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 (D.C. Cir. 1982),
rev'd in part sub nom. Am. Paper Inst. v. Am. Elec. Power Serv.
Corp., 461 U.S. 402 (1983) (justifying the rule on the basis of
``the need for certainty with regard to return on investment in new
technologies''); NOPR, 168 FERC ] 61,184 at P 63 (``The Commission's
justification for allowing QFs to fix their rate at the time of the
LEO for the entire term of a contract was that fixing the rate
provides certainty necessary for the QF to obtain financing.'');
Windham Solar LLC, 157 FERC ] 61,134, at P 8 (2016).
    \21\ See, e.g., ELCON Comments at 21-22 (``More variable avoided
cost rates will result in unintended consequences that result in
less competitive conditions and may leave consumers worse off, as
utility self-builds do not face the same market risk exposure.
Pushing more market risk to QFs while utility assets remain
insulated from markets creates an investment risk asymmetry. This
puts QFs at a competitive disadvantage.''); South Carolina Solar
Business Association Comments at 8 (``[A]s-available rates for QFs
in vertically-integrated states therefore discriminate against QFs
by requiring QFs to enter into contracts at substantially and
unjustifiably different terms than incumbent utilities.''); Southern
Environmental Law Center Supplement Comments, Docket No. AD16-16-
000, at 6-8 (Oct. 17, 2018) (explaining that vertically integrated
utilities in Indiana, Alabama, Virginia and Tennessee only offer
short-term rates to QFs); sPower Comments at 13; see also Statement
of Travis Kavulla, Docket No. AD16-16-000, at 2 (June 29, 2016).
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    11. The record before us confirms the continuing importance of
the fixed-price contract option for QFs. Numerous entities with
experience in financing and developing QFs explain that a fixed
revenue stream of some sort is necessary to obtain the financing
needed to develop a new QF.\22\ In both Order No. 872 and today's
order on rehearing, the Commission responds to that evidence with a
reference to the general track record of independent power
producers, and renewables developers in particular, that develop new
resources without a regulatory guarantee of a fixed revenue
stream.\23\ But the overwhelming majority of the Commission's
statistics reflect development in RTO/ISO markets, where developers
generally can rely on financing arrangements, such as commodity
hedges, to lock-in the revenue needed to secure financing.\24\
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    \22\ See, e.g., Public Interest Organizations Rehearing Request
at 73-76; SEIA Comments at 29; North Carolina Attorney General's
Office Comments at 5; ConEd Development Comments at 3; South
Carolina Solar Business Association Comments at 6; sPower Comments
at 11; Resources for the Future Comments at 6-7; Southeast Public
Interest Organizations Comments at 9.
    \23\ Order No. 872-A, 173 FERC ] 61,158 at PP 150-151 (citing
Order No. 872, 172 FERC ] 61,041 at P 340).
    \24\ See, e.g., EEI Comments at 36; sPower Comments at 12;
Public Interest Organization Comments at n. 87 (fixed price
contracts for non-QF generation); SEIA Rehearing Request at 14-15.
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    12. Those products are far less ubiquitous--if they are
available at all--outside of RTO/ISO markets.\25\ Accordingly, the
success of relatively large independent power producers in the
organized markets does not constitute substantial evidence
suggesting that QFs will be able to finance new development outside
RTO/ISO markets where PURPA plays a larger role.\26\ Indeed, the
Commission's deliberate blurring of the lines between RTO/ISO
markets and the rest of the country is the equivalent of arguing
that Tommie and Hank Aaron ought to both be hall-of-famers because,
together, they hit 768 home runs, while ignoring the fact that Hank
was responsible for 755 of the brothers' 768 home runs.\27\
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    \25\ See, e.g., SEIA Comments at 29-30 (``As both Mr. Shem and
Mr. McConnell explain, financial hedge products are not available
outside of ISO/RTO markets.''); Resources for the Future Comments at
6-7 (``[W]hile hedge products do support wind and solar project
financing, they would not be suited for most QF projects. To hedge
energy prices, wind projects have used three products: Bank hedges,
synthetic power purchase agreements (synthetic PPAs), and proxy
revenue swaps. . . . From US project data for 2017 and 2018, the
smallest wind project securing such a hedge was 78 MW, and most
projects were well over 100 MW. Additionally, as hedges rely on
wholesale market access and liquid electricity trading, all of the
projects were in ISO regions.''); SEIA Rehearing Request at 18.
    \26\ See, e.g., Public Interest Organizations Rehearing Request
at 74-78; Northwest Coalition Rehearing Request at 28.
    \27\ Compare https://en.wikipedia.org/wiki/Hank_Aaron with
https://en.wikipedia.org/wiki/Tommie_Aaron. The Commission also
points to the rate structure discussed in Town of Norwood v. FERC,
962 F.2d 20, 21, 24 (D.C. Cir. 1992), ``variable energy rate/fixed
capacity rate construct is the standard rate structure used
throughout the electric industry.'' Order No. 872, 172 FERC ] 61,041
at P 38; see also Order No. 872-A, 173 FERC ] 61,158 at P 143. I do
not believe that the discussion of a single contract in a single
case, decided roughly thirty years ago, is substantial evidence
regarding the typical financing and contractual requirements of a QF
in the contemporary electricity sector.
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    13. The Commission next responds that PURPA does not require
that QFs be financeable.\28\ That is true in a literal sense;
nothing in PURPA directs the Commission to ensure that at least some
QFs be financeable. But it does require the Commission to encourage
their development, which we have previously equated with
financeability.\29\ If the Commission is going to abandon that
standard, it must then explain why what is left of its regulations
provides the requisite encouragement--an explanation that is lacking
from this order, notwithstanding the Commission's repeated
assertions to the contrary.\30\
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    \28\ See, e.g., Order No. 872-A, 173 FERC ] 61,158 at PP 145-
146, 172.
    \29\ See, e.g., Order No. 69, FERC Stats. & Regs. ] 30,128 at
30,880 (finding that ``legally enforceable obligations are intended
to reconcile the requirement that the rates for purchases equal to
the utilities avoided cost with the need for qualifying facilities
to be able to enter into contractual commitments, by necessity, on
estimates of future avoided costs'' and ``the need for certainty