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:

Establishment of this email address does not establish a “docket,” and those submitting correspondence do not constitute parties or intervenors to any proceeding.  Further, submission of correspondence to the Department does not in any way limit or prevent the ability of the Secretary to act on any application, or pursuant to section 202(c) without application, in any way and at any time as he deems appropriate.

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.