Politico

“It’s exactly the same language in the FPA,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law. “The court would have to read the language in the FPA the way it’s reading the Natural Gas Act.”

BREAKING UP IS HARD TO DO: Utilities interested in ditching the power markets may find it harder than they would like, according to a new memo by utility attorney Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. FERC’s order last year to PJM Interconnection setting a minimum offer price in its capacity auction, an effort to nullify state subsidies to renewable and nuclear generators that Peskoe opposed, triggered several statewide efforts to consider leaving either PJM or ISO-New England. Peskoe examines recent cases and finds that FERC may have the ability to review — and reject — a utility request to leave its market. “I conclude that withdrawal is legally plausible, but FERC could block withdrawal, and it might be more inclined to do so in response to a protest filed by an ISO-NE transmission owner,” he writes.

… If FERC does reverse itself and apply mitigation rules more broadly, it will have hampered clean energy participation in the three markets targeted by the Department of Energy’s 2017 grid resilience proposal, which would have provided ratepayer funded contracts to coal, nuclear and oil plants in those regions. FERC unanimously rejected that DOE plan in early 2018, but critics say the MOPR orders will do more to support fossil fuel plants because the price floors are more likely to withstand legal challenges than the poorly-designed DOE plan. States may not stand idly by. New York utility regulators already have a proceeding open that could pull them from the NYISO’s capacity market, putting the state in charge of long-term generation planning once again. “The more aggressive FERC Is on these issues, the more likely it will lead to the demise of the New York ISO capacity auction,” said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program.