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.