Freedom Energy FERC and ISO-NE Rule Exemption

On behalf of our client Freedom Energy, we convinced FERC and ISO-New England to reinterpret an exemption under Dodd-Frank, making it possible for Freedom Energy to continue operating in the retail energy market. ISO-New England (ISO-NE) had proposed to require an entity to own physical assets in order to qualify for an exemption under Dodd-Frank as “actively participating in the generation, transmission or distribution of electric energy.” Freedom Energy is a small retail energy supplier that purchases electricity in the ISO-NE market and sells it to commercial and industrial end-users. Freedom Energy does not, however, own any physical assets. Under ISO-NE’s proposed rules, Freedom Energy would have been required to demonstrate that it held $5 million in assets in order to continue transacting in the ISO-NE markets. FERC agreed with Freedom Energy’s argument that ISO-NE’s interpretation of the “actively participating” exemption is discriminatory against retail electric suppliers and would essentially eliminate that sector since very few retail power suppliers have assets in excess of $5 million. FERC required ISO-NE to demonstrate why its proposal is not discriminatory. After FERC acted, counsel for ISO-NE contacted us to state that the ISO will agree with Freedom’s interpretation and dispense with the physical asset ownership requirement. This is a resounding victory for a small client which would have otherwise been forced out of business by ISO-NE’s requirements.