12/03/2019 - Comment Filed - Legal Analysis

Electricity Law Initiative Comments on Proposed Repeal of FERC Rule that Facilitates Investment in Renewables

The Electricity Law Initiative filed a comment about the Federal Energy Regulatory Commission’s proposed revisions to its rules implementing section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA). The comment focuses on the proposed repeal of a rule requiring utilities to offer cogenerators and certain renewable energy generators (Qualifying Facilities or QFs) long-term contracts with fixed energy rates. FERC had previously determined that this rule is necessary to facilitate financing of QFs and fulfill its duty under section 210 to issue rules it “determines necessary to encourage” development of QFs.

The repeal proposal pays lip service to this directive while it undermines a proven QF financing model. FERC packages the repeal with a set of reforms it claims “rebalance the benefits and obligations” of section 210, but these proposals are uniformly biased against QF development. FERC’s one-sided approach cannot be reconciled with the statute’s unambiguous instruction to encourage QF development. FERC suggests that in response to industry changes it may divorce the statute from its plain meaning and issue rules that will restrain QF growth. But Congress’s mandate to FERC is not contingent on industry conditions and does not expire. While FERC may modernize its rules, it must ensure they continue to achieve Congress’s purpose. FERC’s unbalanced repeal proposal fails this test.

The comment includes an appendix with excerpts from the Congressional Record.

Click here for the full comment and here for the appendix.