Background
On December 17, 2020, the Federal Energy Regulatory Commission (“FERC”) issued a final rule (“Order No. 874”) amending the definition of “useful thermal energy” in its regulations under the Public Utility Regulatory Policies Act of 1978 (“PURPA”) concerning the eligibility criteria for a cogeneration facility to be a Qualifying Facility (“QF”). The final rule addresses specifically a petition for rulemaking filed by Bloom Energy Corporation (“Bloom”). Bloom sought revision to the eligibility criteria in order for its Bloom Box modules to qualify for QF treatment under FERC’s regulations.
FERC’s regulations and precedent have been to require “useful thermal energy” to include thermal output that is delivered to a separate “host” industrial commercial heating or cooling purpose that is distinct from the integrated power generation process through which the thermal energy is created. That is, FERC has construed the term “useful thermal