Electricity Law Initiative

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

• Response to Fossil Generators’ Protests about PJM’s Proposal. Rebuts arguments that FERC must adopt particular market rules that disadvantage resources required by state policies (Sep. 2021).
• 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).
• 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).
• 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. Legislative History Appendix (Nov. 2019).
• 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).
• 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).
• 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).
• 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).
• Policymaker Summaries. Distills recent scholarship on state-federal energy policy issues to highlight key recommendations. (May 2018)
• 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).
• 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).
• 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).
• 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).
• 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).
• 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).
• 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).

• 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).
• 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).
• 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).
• 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 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).
• 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).
• 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).

• Can FERC Convince Utilities to Build Modern Transmission Systems? Explains why utilities often oppose large-scale transmission development, summarizes key aspects of FERC’s proposed rule on transmission development, and suggests modest improvements to FERC’s proposal (May 2022).
• Comment on FERC’s inquiry into its Uniform System of Accounts. Argues that the Commission’s approach to utility trade association dues has not kept pace with the industry’s evolution. It should include utility expenditures aimed at influencing public opinion on utility regulation and adopt a broad understanding of utility efforts to influence public officials and the public (Feb. 2022).
• Reply Comment on FERC’s Transmission ANOPR. Urges FERC not to abandon competitive transmission development and suggests that competition can help align transmission rates with reliability (Nov. 2021).
• Initial Comment on FERC’s Transmission Advanced Notice of Proposed Rulemaking (ANOPR). Details FERC’s extensive authority to remedy utility conduct that is “unduly discriminatory,” shows that FERC’s proposed planning reforms fit within that authority, and outlines how FERC can review the prudency of certain utility transmission investments (Oct. 2021).
• To catalyze transmission development, end the utility protection racket Op-ed by Ari Peskoe in Utility Dive (Feb 2021).
• Is the Utility Transmission Syndicate Forever? Reviews FERC regulation of transmission operations and planning and argues that investor-owned utilities are impeding large-scale transmission development that is necessary for the clean energy transition (Jan. 2021).
• 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).

• Comment on the Federal Trade Commission’s Inquiry on Its Merger Policy. Summarizes a recent academic article on utility mergers and argues that utility mergers can raise competitive issues relating to local and interstate power delivery infrastructure that FERC’s current merger review policies do not consider. (Apr. 2022)
• Comment on FERC’s Office of Public Participation. Explains that Congress designed an Office of Public Participation that is independent of the Commission, urges FERC to include monitoring of Regional Transmission Organizations (RTOs) in the Office’s portfolio, and suggests what RTO monitoring might entail (May 2021).
• 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).
• 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).
• 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).
• 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 US 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).
• 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).

• Comment on FERC’s inquiry into its Uniform System of Accounts. Argues that the Commission’s approach to utility trade association dues has not kept pace with the industry’s evolution. It should include utility expenditures aimed at influencing public opinion on utility regulation and adopt a broad understanding of utility efforts to influence public officials and the public (Feb. 2022).
• Reply Comment on FERC’s Transmission ANOPR. Urges FERC not to abandon competitive transmission development and suggests that competition can help align transmission rates with reliability (Nov. 2021).
• Initial Comment on FERC’s Transmission Advanced Notice of Proposed Rulemaking (ANOPR). Details FERC’s extensive authority to remedy utility conduct that is “unduly discriminatory,” shows that FERC’s proposed planning reforms fit within that authority, and outlines how FERC can review the prudency of certain utility transmission investments (Oct. 2021).
• Comment on FERC’s Office of Public Participation. Explains that Congress designed an Office of Public Participation that is independent of the Commission, urges FERC to include monitoring of Regional Transmission Organizations (RTOs) in the Office’s portfolio, and suggests what RTO monitoring might entail (May 2021).
• 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).
• 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).
• 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. Legislative History Appendix (Nov. 2019).
• 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 US Department of Energy (Dec. 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).
• 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).
• 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).
• 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).
• 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).