Electricity Law Initiative

As described below, the bulk of our work in this area falls into three interrelated programs: State Power Project, Unlocking Distributed Energy Resources, and the Power Shift Network. Other work includes filings at the Federal Energy Regulatory Commission (FERC).

State Power Project

At statepowerproject.org, we track recent and ongoing litigation challenging state policies as unconstitutional or preempted by federal law. We have also developed guidance on how states can work within legal limits to achieve energy policy goals.

In addition to the statepowerproject.org website, related work on state authority and FERC-regulated interstate power markets includes:

• Minimizing Constitutional Risk. Provides policymakers with key lessons from recently filed lawsuits and suggestions on how states can work within their constitutional limits to achieve energy policy goals (Oct. 2017).
• Easing Jurisdictional Tensions by Integrating Public Policy in Wholesale Electricity Markets. Explores FERC’s authority under the Federal Power Act to approve an RTO tariff that includes zero-emission energy procurement or a carbon price and concludes that approval of a wholesale market tariff that incorporates public policy goals is consistent with the generous construction of the FPA afforded by courts (May 2017).
• Climate Implications of FERC Proceedings. Provides an overview of FERC’s oversight of interstate power markets, explains how market rules can affect the competitiveness of various fuels and technologies, and discusses legal strategies employed by opponents of new natural gas infrastructure in FERC permitting proceedings (Nov. 2017).
• Brief of Electricity Regulation Scholars. Argues that Illinois’ Zero Emission Credit program is consistent with long-standing principles of state utility regulation and that opponents are advancing a jurisdictional theory that would upset the balance between state and federal authorities (Nov. 2017).
• Testimony and Supporting Research Presented at FERC Conference on Carbon Pricing in RTO/ISO Markets. Argues that FERC has authority to approve a state-determined carbon price that is implemented in RTO/ISO energy markets and responds to questions on FERC’s September 30, 2020 carbon pricing technical conference agenda (Sept. 2020).
• State Clean Energy Policies at Risk: Courts Should Not Preempt Zero Emission Credits for Nuclear Plants. Recaps the evolution of state and federal roles in regulating the electric industry and argues that states’ zero emission credit programs for nuclear plants adapt traditional state authority over power generation and utility portfolios to today’s restructured electric grid (Apr. 2018).
• FERC’s Clean Energy Boycott Distorts PJM Prices and Discards History explains how FERC’s December 2019 order about PJM’s capacity auction departs from precedent and divorces the connection between capacity prices and reliability (Jan. 2020).
• Comment to FERC on PJM’s Capacity Market Proposals. Argues that generation procurement is a program of cooperative federalism and that PJM’s proposals to pay lower rates to some resources paid for their environmental benefits would disrupt the balance of state-federal authority (May 2018).
• Comment to FERC on PJM Generators’ Stranded Cost Arguments. Urges FERC to reject generators’ attempt to force a choice between a “clean” capacity auction and stranded cost recovery (Nov. 2018).
• The Supreme Court Should Reject Requests for a Do-Over about State Clean Energy Programs. Urges the Court to reject petitions seeking of review of decisions about state clean energy programs (which it did) because the Court’s previous decision on electricity regulation strikes the right balance between state and FERC authority in restructured power markets (Jan. 2019).
• Comments to FERC on Proposed Revisions to Its Rules Implementing Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA). Argues that the proposal cannot be reconciled with the statute’s unambiguous instruction to encourage development of Qualifying Facilities (Nov. 2019).
• Comments on the Department of Energy’s Proposed Resiliency Pricing Rule. Argues that the proposal is legally deficient and cannot form the basis of a final rule (Oct. 2017).
• Remarks at a June 2019 Workshop for PJM Stakeholders and State Regulators. Summarizes the implications of recent federal court decisions about state authority to subsidize power generation and speculates on FERC’s pending decision about PJM’s capacity auction rules (Jun. 2019).
• Remarks at the June 2019 NEPOOL Participants Committee Meeting. Encourages market participants to adopt a regional decarbonization strategy (Jun. 2019).
• PURPA @ 40: Remarks at NARUC’s 2017 Winter Meeting. Recaps the purpose and history of Title II of the Public Utilities Regulatory Policies Act of 1978 and comments on recent controversies (Feb. 2017).
• Regulatory Paths Forward for a Cleaner Grid. Summarizes discussions at a workshop about the future of wholesale electricity markets and how they might account for state clean energy policies (Feb. 2018).
• Policymaker Summaries. Distills recent scholarship on state-federal energy policy issues to highlight key recommendations.

Unlocking Distributed Energy Resources

Advancements in business models and technologies of distributed energy resources (DER) open new possibilities for electricity generation, transmission, and distribution. Many existing regulatory practices were designed without consideration of such opportunities, and may erect barriers to deployment of these resources. Regulators have numerous potential paths forward to unlock the values that DERs can provide to the system, ranging from modifying retail rate designs to making fundamental reforms to state utility regulation.

• The Case Against Direct FERC Regulation of Distributed Energy Resources. Pieces together how FERC’s authority applies to DERs, finds that the resulting fragmented regulatory regime inhibits a cohesive regulatory framework for DERs, and recommends that FERC disclaim jurisdiction over DER energy sales. Note that Part IV of the Electricity Regulation Scholars’ comment contains a more thorough analysis of FERC’s jurisdiction over energy sales from DERs (Sep. 2018).
• Comment of the Electricity Regulation Scholars. Opposes a petition asking FERC to assert jurisdiction over net metering with four arguments, including that excess energy flows from behind a retail meter are not “in interstate commerce” under the Federal Power Act (Jun. 2020).
• Comment on NARUC’s Manual on Compensation for Distributed Energy Resources. Urges the Subcommittee to include in the next version: 1) a thorough examination of how deployment of DERs by consumers and non-utility companies affects utility financial performance, and 2) consideration of competition and consumer choice in DER rate design (Sep. 2016).
• Comment to FERC on its Proposed Rule about DER Aggregation. Affirms that FERC has legal authority to require market operators to facilitate the participation of DER aggregators and suggests that the Commission articulate a jurisdictional line that allows states to regulate sales from individual DERs (Apr. 2017).
• Comment to Department of Energy on the Quadrennial Energy Review. Rebuts the notion that there is a “regulatory compact” between regulators and utilities that underlies regulation (Apr. 2016).
• Presentation at the Federal Trade Commission’s workshop on rooftop solar. Highlights the critical role of state regulation in how investor-owned utilities have responded to the growth of distributed energy resources (Jun. 2016).
• Primer on Utility Ratemaking – Unjust, Unreasonable, and Unduly Discriminatory: Utility Rates and the Campaign Against Rooftop Solar. Provides an historical perspective on recent and ongoing debates about rooftop solar utility rate reform (appears in The Texas Journal of Oil, Gas, and Energy Law) (May 2016).
• Alternative Dispute Resolution at Public Utility Commissions white paper. Provides background information on common forms of ADR, discusses considerations for using ADR in settling public utility disputes, and highlights how PUCs across the country incorporate ADR into their operations (May 2017).

Power Shift Network

Power Shift connects expert communities – energy and environmental law scholars, utility regulators, technical analysts, and policymakers – around a legal vision for tomorrow’s grid. We bring these communities together through workshops, webinars, and other forums to exchange ideas, drive cutting-edge scholarship, and translate that scholarship into practical tools and policy solutions.

A sampling of Power Shift projects includes:

• Summary Report of a Discussion Marking the 80th Anniversary of the Enactment of FPA Title II. Discusses the challenges of governing an evolving industry with an eighty-year old legal framework, identified opportunities for continued adaptation and reform, and suggested topics that warrant further research and discussion.
• Webinar on Carbon Prices in RTO Markets. Judy Chang (Brattle Group) provides an overview of the market mechanics of carbon pricing in electricity markets, while Steve Weissman (Berkeley’s Goldman School of Public Policy) and Professor Joel Eisen (University of Richmond School of Law) discuss FERC’s legal authority to allow a carbon price in the markets it regulates.
• Webinar on RTO Governance Professor Elizabeth Wilson (Univ. of Minnesota) joins Jeff Dennis and Suedeen Kelly (Akin Gump) to discuss the history of RTOs and case studies about their governance and decision making processes.

Other Documents

• A Clean Energy Agenda Runs Through FERC. Reviews how FERC is already influencing the clean energy transition and explains why FERC’s sweeping authority over the power sector’s interstate operations and planning make it an indispensable player in the Biden Administration’s clean energy agenda (Nov. 2020).
• Comment to FERC about Commissioner McNamee’s Participation in Certain Matters. Argues that FERC Commission McNamee is disqualified from proceedings that relate to work he conducted while serving at the U.S. Department of Energy (Dec. 2018).
• Response to FERC’s Notice of Inquiry into its Pipeline Certificate Policy Statement. Provides a history of the Natural Gas Act’s “public convenience and necessity” standard and argues that weighing costs associated with upstream and downstream GHG emissions fits well within the meaning of that phrase (Jul. 2018).
• Energy Emergencies vs. Manufactured Crises: The Limits of Federal Authority to Disrupt Power Markets. Argues that the electric power sector is not in crisis and that statutory emergency authority in the energy space is highly circumscribed and does not permit the Administration to bail out “fuel-secure” generators (Jun. 2019).
• ISO-NExit: Exploring Pathways for a Utility’s Withdrawal from New England’s Regional Transmission Organization. Summarizes the legal process for a utility’s withdrawal from ISO-NE, speculates how FERC might block the withdrawal, and highlights several complexities and uncertainties about post-withdrawal operations (Mar. 2020).
• Video Presentation: Power Over the U.S. Electric Grid. Outlines the history of the power generation industry and explains how the Constitution and federal law shape the roles of state and federal regulators and why it matters for the nation’s energy policy (Nov. 2017).
• Power Over the Twenty-First Century Electric Grid. Provides an overview of power sector regulation and offers a legal path forward for the regulation of energy sales by distributed energy resources (Mar. 2018).