Former FERC Commissioners Norman Bay, John Norris, and Jon Wellinghoff submitted a comment to EPA’s Clean Power Plan (CPP) repeal docket, responding to EPA’s suggestion that the CPP may impermissibly tread on FERC’s functions and authority. Characterizing this idea as “unfounded,” the former commissioners argue that the CPP respects the boundaries between EPA and FERC. They argue that “none of FERC’s authorities under the [Federal Power Act] would be in any way diminished or altered if the CPP were fully implemented.” They also point to other federal regulations—under the Clean Air Act as well as promulgated by other agencies, such as the Occupational Health and Safety Administration and the Bureau of Land Management—that may increase generator costs, arguing that these agencies cannot be precluded from exercising their statutory authority because of FERC’s authority over wholesale electricity markets.
The comments also focus on the state/federal balance in energy regulation and the fact that FERC “routinely considers the impacts of state public policies on the areas it regulates.”
The comments attach a May 15, 2015 letter from FERC to EPA about the CPP, noting that FERC’s suggestions were solicited and incorporated throughout the development of the CPP. For example, FERC held four technical conferences concerning the CPP. And EPA included a reliability safety valve and altered the compliance deadlines in response to consultation with FERC.
Further, the former commissioners state “that the CPP is consistent with ongoing trends in the power sector, is achievable at reasonable cost, and does not pose threats to reliability.” They argue that in spite of recent changes to the grid—from changing resource mix to technological innovations—regulators and grid operators have maintained safe, reliable, and affordable electricity. They point to studies showing the feasibility of CPP compliance and note that they can think of no instance where a Clean Air Act regulation “has been responsible for endangering resource adequacy,” citing this as “a powerful tribute to the robust system of policies, institutions, planning processes, and operating practices” protecting reliability.
Comments on the proposed repeal are currently due April 26.
DOE Opens Informal Comment Period on FPA Section 202(c) Emergency Authority
Since First Energy Solutions Corp. asked DOE to issue a Federal Power Act (FPA) Section 202(c) emergency order requiring PJM to provide full cost recovery to certain nuclear- and coal-fired generators last month, energy industry organizations have responded to the request, and DOE has opened an unofficial comment period using its 202(c) authority.
On March 30th, a diverse group of energy industry trade associations* submitted a joint request to DOE Secretary Perry to establish a formal notice and comment period of at least 60 days to allow interested parties to respond. These groups argued that First Energy’s request has far-reaching implications for the PJM markets and on a broad spectrum of parties, making the opportunity for meaningful stakeholder involvement imperative.
While DOE has not formally responded to the energy industry trade associations, last week, DOE opened an unofficial comment period and updated its website to provide an email address intended for the receipt of all public comments and requests related to FPA Section 202(c). DOE made clear, however, that:
DOE has not indicated how long the informal comment period will remain open, but states that any additional information related to 202(c) procedures will be announced on its website.
Energy industry organizations continue to respond to First Energy’s request. The American Public Power Association urged Secretary Perry in an April 9 submittal to reject First Energy’s request, arguing that no emergency exists within the meaning of FPA Section 202(c), and that FERC already considered and rejected First Energy’s arguments in the proposed grid resilience pricing rule. In addition, the Electric Power Supply Association submitted a letter to President Trump last Friday, stating that no emergency warranting the use of 202(c) authority exists, and that “[s]ince all electricity suppliers face the challenges of current market conditions . . . federal and state policies should be pursued on a fuel neutral basis to best serve consumers.”
* These groups included Advanced Energy Economy, the American Council on Renewable Energy, the American Forest & Paper Association, the American Petroleum Institute, the American Wind Energy Association, the Electric Power Supply Association, the Electricity Consumers Resource Council, the Independent Petroleum Association of America, the Interstate Natural Gas Association of America, the Natural Gas Supply Association, and the Solar Energy Industries Association.