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Ari Peskoe

  • 5th Circuit rules Texas transmission law unconstitutional

    September 1, 2022

    A federal appeals court yesterday ruled that a state law giving existing Texas utilities priority in building electric transmission lines violates constitutional protections for interstate…

  • ‘What is true for alcohol and milk’ must be true for transmission, 5th Circuit says in NextEra decision

    August 31, 2022

    Dive Brief: A Texas law giving incumbent utilities the sole right to build transmission lines connecting to their systems likely violates the U.S. Constitution’s dormant…

  • Why the U.S. is struggling to modernize the electric grid

    August 17, 2022

    Blackouts are growing more frequent in the United States. The average American experienced just over eight hours of power outages in 2020, with overall duration…

  • U.S. Supreme Court building, looking up towards the sky from the bottom of the stairs.

    Harvard Law faculty weigh in: The 2021-2022 Supreme Court Term

    June 25, 2022

    Harvard Law School experts weigh in on the Supreme Court’s final decisions.

  • Feds: 2 men bilked Mass. efficiency program in $36M scheme

    May 4, 2022

    A Massachusetts police officer and his brother, an electrical contractor, were indicted last week for exchanging cash bribes and gifts for more than $36 million in contracts from an energy efficiency program in Massachusetts. Energy consumers in the state pay mandatory surcharges to fund Mass Save, a public-private program that is sponsored by gas and electric companies in partnership with the state’s Department of Energy Resources. Those funds help to cover the costs of energy efficiency upgrades to residential and commercial buildings. ... Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School, said that the alleged fraud scheme did not seem to be the result of an inherent aspect of the Mass Save public-private partnership. “These things happen in the utility world as they do in other sectors,” Peskoe told E&E News. “That’s not a reason to do these programs, it’s just the nature of this criminal activity that folks are looking for opportunities.

  • Could NextEra’s $55M winning bid for SPP’s transmission project be among the last of its kind?

    April 27, 2022

    Since FERC in 2011 issued its Order 1000, partly to open transmission development to competition, SPP has completed solicitations for three regional transmission projects, including the just-selected NextEra project, which is designed to reduce congestion in the Oklahoma City area. Besides being the least expensive proposal, NextEra Energy Transmission Southwest’s project has a range of benefits compared with the other bids, according to SPP’s panel that reviewed the solicitation. ... “It’d be hard for me to imagine that the utilities wouldn’t basically carve this up amongst themselves,” [Ari] Peskoe said. “They’d have some sort of understanding of who partners up with who on certain projects.”

  • Supreme Court blow to Missouri pipeline seen boosting FERC oversight efforts

    April 19, 2022

    The Supreme Court's rejection of a Missouri pipeline's plea to review a decision vacating its permit will buoy efforts to strengthen the federal permitting process for new gas infrastructure, legal experts predicted. Although the commission still has a long way to go in gaining consensus on the more contentious issues facing pipeline permitting — notably whether a pipeline can be rejected based on the impact it has on the climate — the high court's denial represents another blow to the gas industry, which will have to step up efforts to prove the necessity of new pipelines to pass muster with FERC, according to experts. ... Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, wrote in an email that “FERC clearly has legal authority to enforce a new policy statement like the one Christie outlines in his dissent. I’m sure industry would challenge its implementation, but it’s hard to imagine a court would find that FERC does not have legal authority to analyze whether there is demand for a new pipeline when the only evidence of need is a contract between two corporate affiliates.”

  • The Clean-Power Megaproject Held Hostage by a Ranch and a Bird

    April 12, 2022

    There’s a big piece of land in lonely northwest Colorado where the grassy plains meet the mountains, wide-antlered elk drink from icy rivers and sage-grouse pump their chests in wild mating dances each spring. Ranch hands still ride herd on thousands of cattle and sheep here, just as they started doing 150 years ago when Texas cowboys first drove cows north into the high country. ... Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, says the U.S. grid sorely needs the TransWest line. He argues that families like the Boeddekers—who don’t live at Cross Mountain full-time—are living an energy-intensive lifestyle by definition and should be willing to accept some inconvenience. “You want to live in a world where that lifestyle has no consequences and any social costs of that should be borne by others and you shouldn’t have to be inconvenienced by seeing that from your second home?” he said. “I have zero interest in their concerns.”

  • Glick’s climate focus at FERC puts a target on his back

    March 23, 2022

    President Joe Biden's struggles to deliver on his ambitious climate agenda are getting a big boost from the leader of one often overlooked agency who is scrutinizing the greenhouse gas emissions of energy infrastructure and the environmental harms facing low-income people and communities of color. Now, that official, Federal Energy Regulatory Commission Chair Richard Glick, may see his efforts to put climate change at the forefront of federal energy policy cost him his job. Glick's departure could stall FERC's work in updating transmission policies and market rules to support the development and expansion of clean energy, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. “The worst case scenario would be a split commission,” he said.

  • How Monopoly Energy Utilities Impede Innovation — Episode 146 of Building Local Power

    March 11, 2022

    On this episode of the Building Local Power Podcast, host Jess Del Fiacco is joined by her colleague John Farrell, director of ILSR’s Energy Democracy Initiative, and guest Ari Peskoe, who is the director of the Energy Law Initiative at Harvard Law School. They discuss the attempts Congress has made to increase competition in electric utilities, the four orders the Federal Energy Regulatory Commission (FERC) ruled between 1996 and 2011, and the how the lack of competitive processes negatively impacts consumers.

  • New England takes a detour on electric grid reform; pushback ensues

    February 23, 2022

    It was a shocker. Katie Dykes, Connecticut’s commissioner of the Department of Energy and Environmental Protection, earlier this month got onboard with a two-year delay for a key component of her pet project — reforming the New England electric grid. ... Ari Peskoe, director of the Electricity Law Initiative at the Environmental and Energy Law Program at Harvard Law School, said FERC was unlikely to just say no. “It could find the current approach unjust and unreasonable under federal law and tell ISO-New England what the just and reasonable approach must be and then order ISO-New England to comply,” Peskoe said. “All that would take more time, but there is a path for FERC to reject what is going to be filed and effectively order ISO to file what was narrowly rejected.”

  • New Faces on a Vital National Commission Could Help Speed a Clean Energy Transition

    February 15, 2022

    Only a few years ago, the federal agency that regulates the transmission of electricity, gas and other energy matters was looking into ways to prop up coal, in line with former President Donald Trump’s fossil fuel agenda. ... The long queues of projects awaiting a green light from PJM or other grid operators can be seen as good news, showing a strong interest in renewable energy, said Ari Peskoe, the director of the Electricity Law Initiative at the Harvard Law School.

  • Entergy shareholder payments reach $1.5 billion in last two years as customer bills rise

    February 10, 2022

    Last month, Entergy New Orleans revealed it was pulling funding from a vital city project to shore up the city’s flood defenses. Citing the massive cost of recovering from Hurricane Ida, the company said it could no longer fulfill its commitment to loan $30 million to the Sewerage and Water Board. Four days later, the utility’s parent company, Entergy Corp. announced quarterly shareholder dividend payments at $1.01 per share, totaling $202 million. ... But Entergy is not a typical company. It’s a government-backed monopoly, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “It’s just a classic case of the company’s owners doing well at the expense of their captive customers,” Peskoe said. “That’s the important thing here that differentiates it from other businesses. Customers are just completely captive to Entergy.”

  • The Pipeline Trap

    January 31, 2022

    Scientists and international governing bodies have been very clear: In order to have a shot at limiting the worst impacts of global warming, investment in new fossil fuel projects must stop. Yet the federal body that regulates America’s pipelines has created a perverse incentive for companies to keep building methane-leaking fossil fuel infrastructure that doesn’t serve anybody except shareholders. ... The ruling was notable, and may signal a shifting view of the federal courts on FERC, explained Ari Peskoe, Director of the Electricity Law Initiative at the Harvard Law School. “The court found that FERC had failed to justify that the pipeline was needed, which is the core determination that FERC has to make — that the pipeline is needed for the ‘public convenience and necessity,’” said Peskoe. “It’s the sort of squishy legal standard that courts are typically very deferential to regulators on. So for the court to say that FERC didn’t properly implement its own policy — that has resulted in FERC approving nearly 500 projects and disapproving of only two since 1999 — was unusual and noteworthy.”

  • FERC should loosen incumbent transmission owners’ grip on planning, R Street panelists say

    January 28, 2022

    Transmission planning needs major reforms, including loosening the grip incumbent transmission owners have on the process, a panel of experts said Thursday during a roundtable hosted by the R Street Institute, a think tank. ... In the short term, transmission operators determine who produces power and how much they produce, and in the long term they guide decisions about where to build new transmission, which opens opportunities for new sources of power, according to Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. "So really, control over transmission is in a lot of ways control over the industry," Peskoe said.

  • How Stephen Breyer changed FERC and clean energy

    January 28, 2022

    As Justice Stephen Breyer prepares to step down from the Supreme Court later this year, legal experts are highlighting a lesser-known piece of his legacy — an impact on clean energy and electricity markets. Yesterday, President Biden formally announced Breyer’s plans to retire at the end of this court term during an event at the White House. The 83-year-old justice has served for 28 years on the high court, and four decades as a federal judge (Greenwire, Jan. 27). ... “Breyer opened the door to a practical view of FERC’s jurisdiction that is adaptable to new technologies and is not fixed by the industry structure that existed when Congress passed the [Federal Power Act] in 1935,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in an email.

  • States unwind FERC plans for grid expansion

    January 19, 2022

    A decade after federal regulators opened the door to competition for development of large transmission projects, states — acting at the request of incumbent utilities — are slamming it shut. ... “That’s particularly true in MISO where regional projects basically disappeared as competition went into effect,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School’s Environmental and Energy Law Program. “One reason that’s happening is because it’s so much easier to spend your money where there’s no competition and basically no oversight than to risk going through a competitive process.”

  • Details emerge about DOE, FERC grid plans for clean energy

    January 18, 2022

    The Biden administration’s plan announced yesterday to pump $20 billion into expansion of the nation’s transmission networks will target “shovel ready” projects that deliver clean energy, at the same time a nationwide grid expansion is planned and advanced, according to an administration official. ... DOE’s initiative could also inform FERC’s potential transmission reforms by providing additional, informed research and analyses on transmission needs, said Ari Peskoe, director of the Electricity Law Initiative at Harvard University. Typically, FERC has relied on industry players to identify transmission solutions, even though the independent agency and others have argued that the industry has “underinvested in large-scale projects,” Peskoe said.

  • What Is ‘Disaster Capitalism’? Giant Oil Company Cashes In on Climate Crisis

    December 17, 2021

    As Republican state officials insist that Canadian oil pipelines are necessary to lower energy costs for American consumers, the fossil fuel giant operating those pipelines is suddenly citing the climate crisis its products are creating as a rationale for raising those prices higher, according to new documents reviewed by The Daily Poster. Last month, Ohio Republican Gov. Mike DeWine—who has raked in nearly $400,000 from fossil fuel industry donors—demanded the Biden administration keep open Enbridge's controversial Line 5 pipeline, which runs under the Great Lakes, as a way to reduce energy prices. But Enbridge just dropped a bombshell undercutting that argument: The firm told government regulators that climate change means its tar sands pipeline network only has 19 years left of economic life. That assertion could allow the company to jack up the tolls that its customers pay to transport oil through its pipelines, because pipeline operators are authorized to recoup their operational costs through rate increases—and a shorter timetable means higher levies. "There is something ironic about pipeline companies like Enbridge conceding that they can see the writing on the wall, they're not going to be competitive or needed less than 20 years from today, and as a result they have to raise prices today to account for that," said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School. "There's something incongruous about that."

  • New Energy Regulator Gets Tie-Breaking Vote on Grid’s Future

    November 18, 2021

    Willie Phillips, confirmed Tuesday night to the Federal Energy Regulatory Commission, is poised to be the tie-breaking vote on two proceedings that will shape the future of the U.S. power grid, electric markets and the clean energy rollout. He could vote on a market pricing rule benefiting nuclear and renewable generators that took effect in PJM Interconnection, the country’s largest regional grid operator managing the flow of power to 65 million people in the eastern states. And he’s expected to weigh in on a proposed new wholesale market created by a group of large electric utilities in the Southeast, including Southern Co. and Duke Energy and Tennessee Valley Authority. Opponents say the new market could crowd out independent renewable generators. ...“It’s a huge set of issues on the plate for FERC,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School.

  • Group discussion around a table

    Reading the law

    November 10, 2021

    Harvard Law School’s upper-level reading groups give students the opportunity to dig into unique subjects connected directly — or not — to the law.

  • Fight over FERC grid order could scramble electricity mix

    November 9, 2021

    Power producers challenging a PJM Interconnection regional market rule are setting up a legal fight that could affect the electricity mix across chunks of the Midwest and eastern U.S. ... But there are questions in energy circles about whether Phillips might have to recuse himself because his position as chairman of the Public Service Commission in Washington, D.C., meant he considered the sticky PJM capacity market issue. Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, said he doesn’t expect that to be an issue. “I say it’s low risk, because he didn’t work for the entity filing the proposal,” Peskoe said of the possibility of Phillips recusing himself.

  • New York PSC opposes plan to give utilities right of first refusal for transmission upgrades

    November 5, 2021

    The New York Independent System Operator's (NYISO) ROFR proposal comes as FERC is considering revising its rules governing transmission planning. Utilities want FERC to give them the right to build transmission lines in their footprints instead of opening those projects to a bidding process. ... Competition has generally worked well in New York for public policy transmission projects, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. However, the proposal marks the second recent attempt by New York transmission owners to monopolize transmission that will be built to facilitate the state's clean energy goals, Peskoe said in an email.

  • The Power Grid Is Just Another Casino for Energy Traders

    November 5, 2021

    When GreenHat Energy collapsed after blowing millions speculating on power prices, it became plain: Energy traders are essentially gambling, and ratepayers back every bet. ... GreenHat traded in a market operated by the largest of the grid keepers, the RTO known as PJM Interconnection LLC. PJM (the name originally stood for Pennsylvania, New Jersey, and Maryland) directs power from 1,400 generators through 85,100 miles of high-voltage cables in 13 Eastern states and the District of Columbia. Its 65 million electricity consumers have been spared the widespread blackouts that have affected tens of millions of people in Texas and California lately, but they’ve paid for that stability. PJM is supposed to balance the interests of power companies, consumers, and communities, but for years it’s allowed major suppliers such as Exelon, Duke Energy, and American Electric Power to bill ratepayers for high-priced upgrades to sections of the grid where they predominate, according to an assortment of studies. Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, says PJM’s reliable checkoff on new projects allows suppliers to preserve their market dominance and freeze out competition. It’s effectively “a protection racket” for the biggest providers, Peskoe says.

  • New York PSC opposes plan to give utilities right of first refusal for transmission upgrades

    November 4, 2021

    The New York Public Service Commission (NYPSC) is leading a protest asking federal regulators to reject a proposal that would give incumbent utilities a path to building certain transmission upgrades planned by third-party transmission developers. The state grid operator's right of first refusal (ROFR) proposal, which could give utilities a new income stream, would lead to unfair rate hikes, would fail to balance consumer and shareholder interests, and thwart the Federal Energy Regulatory Commission's efforts to inject competition into the transmission process, the NYPSC said in a Tuesday filing at the commission. ... Competition has generally worked well in New York for public policy transmission projects, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. ... "New York's policies are headed in the same direction, and they all point to a significant influx of clean energy over the next couple of decades," Peskoe said. "[The utilities] are trying to effectively tax clean energy policies by attempting to take a cut of the profits without any competition."

  • Glick fleshes out plans for new FERC grid rules

    October 20, 2021

    New rules affecting the electric power system issued by the Federal Energy Regulatory Commission should apply everywhere, including in parts of the country that lack organized power markets, FERC Chair Richard Glick said yesterday. ... The Midcontinent Independent System Operator has also urged FERC to apply future transmission planning reforms to both RTOs and non-RTOs, since leaving non-RTOs out of certain requirements could give utilities a reason to leave the organizations, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. "Glick is clearly addressing a broader point, not just about transmission development," Peskoe said. "In general, FERC has to more actively regulate the utilities that are not in RTOs, in part to ensure that utilities not in RTOs will not stay out to avoid FERC rules and those already in RTOs won’t leave in order to avoid FERC rules."

  • N.J. advances grid plan seen as national model for renewables

    October 5, 2021

    New Jersey is weighing a novel approach to developing electric transmission projects that observers say could soon be explored by other states and help drive renewables. New Jersey’s Board of Public Utilities announced Sept. 24 that it had closed a request for proposals from companies seeking to build transmission infrastructure to connect planned new offshore wind farms to the regional power grid. In a unique arrangement with the grid operator for the mid-Atlantic region, the Garden State has agreed to pay for a new transmission network without help from other states and use the power lines to link up a slew of wind projects expected to be built off the Jersey Shore. ... Voluntary transmission agreements could be particularly useful for states with offshore wind procurement plans, said Ari Peskoe, director of the electricity law initiative at the Harvard Law School Environmental and Energy Law Program. Offshore wind is generally going to be developed in predetermined locations, which would make it easier for one or more states to plan for the transmission lines through a voluntary agreement, Peskoe said. ... “There’s a lot on the table right now about transmission at FERC, and I suppose it’s also possible FERC might include this in a rulemaking further down the line,” Peskoe said. “But I think the current policy statement is really an invitation that states and RTOs explore this option if it makes sense.”

  • Hurricane Ida power grid failure forces a reckoning over Entergy’s monopoly in the South

    September 30, 2021

    Like many ravaging storms that came before it, Hurricane Idaexposed the fragility of Louisiana’s power grid, knocking out electricity to hundreds of thousands of people and businesses, including nearly all of New Orleans. It also laid bare growing doubts about the ability of the state’s largest energy provider to protect against the effects of climate change, including the increasingly destructive weather it causes. ... Ari Peskoe, the director of the Electricity Law Initiative at Harvard Law School, said Entergy is “an extreme example” among old-school utilities that stand to lose from the building of regional transmission lines. “There is an incentive mismatch between what’s good for the public versus what a utility might want to do, which is to protect its legacy power plants that it can still make money off of,” Peskoe said.

  • Hurricane Ida power grid failure forces a reckoning over Entergy’s monopoly in the South

    September 24, 2021

    Like many ravaging storms that came before it, Hurricane Ida exposed the fragility of Louisiana’s power grid, knocking out electricity to hundreds of thousands of…

  • Biden Climate Goals to Take Backseat in Biggest U.S. Power Grid

    June 2, 2021

    The power grid serving nearly 20% of the U.S. population is about to throw a roadblock in President Joe Biden’s plan to decarbonize the electricity sector. PJM Interconnection LLC, which keeps the lights on for 65 million people from Chicago to Washington, D.C., is expected to clear a fleet of new natural gas plants-- and even extend the lives of some coal plants -- when it releases the results of its massive electricity auction Wednesday. That’s because Trump-era changes to the way the auction is structured give a leg up to fossil fuels, at the expense of zero-carbon sources such as nuclear, wind and solar. “The market has been trending toward renewables, but this is pulling it back,” said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “It’s fighting the future.” As much as 4 to 6 gigawatts of new gas capacity and several clunker coal plants could clear the auction, according to some estimates, while nuclear and renewables are expected to be the big losers. Such an outcome would further entrench fossil fuels in the biggest U.S. power market, and runs counter to the president’s goal of eliminating greenhouse gases from the power industry by 2035.

  • How private equity squeezes cash from the dying U.S. coal industry

    March 3, 2021

    Private equity firms are proving there’s still plenty of profit in the U.S. coal industry despite a decade of falling demand for the fossil fuel. They are spending billions of dollars buying coal-fired plants on the cheap - and getting paid even when they are not providing power. Since the end of 2014, at least five U.S. private equity firms have bought coal plants in markets where regulators pay them to be on standby to provide emergency power when demand surges with extreme hot or cold weather, according to a Reuters review of U.S. regulatory disclosures and credit-rating agency reports...FERC did not respond to requests for comment, and the White House declined to comment. “I’m confident, in the next couple of years, FERC will order changes,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. Policy changes could make it harder for highly-leveraged private equity owners of coal plants, like Lightstone, to refinance their debts, according to Richard Donner, a credit analyst at Moody’s Investors Service. About $1.7 billion in the company’s debt comes due in 2024. Even so, Lightstone’s creditors are the ones with the greatest risk, according to Peskoe. “Somehow the private equity guys always make out OK,” Peskoe said. “It’s everyone else who doesn’t.”

  • To catalyze transmission development, end the utility protection racket

    February 25, 2021

    An article by Ari PeskoeInterstate transmission development is fragmented by local utility service territories. Parochial interests are impeding large-scale transmission projects, which in turn is slowing wind and solar deployment. The combination of discriminatory state laws and Federal Energy Regulatory Commission transmission planning rules shields utilities from competition within their local service territories and induces them to focus on developing small-scale local projects. These protectionist policies reinforce an anachronistic utility-by-utility approach to transmission planning that is failing to develop theregional transmission necessary to effectively decarbonize the power sector and mitigate the impacts of extreme weather. Consider Minnesota, where sixteen utilities own interstate electric transmission lines. A decade ago, the state legislature set that number in stone by granting these sixteen entities exclusive rights to build additions to their respective portions of the interstate power network. The state recently asked the U.S. Supreme Court not to invalidate that law because allowing a seventeenth entity to own transmission in Minnesota "would inject uncertainty" into the state’s power network and "risk unreliable transmission." These wholly unsupported claims, that belie the experience of transmission operators around the country, are at the heart of the state’s assertion that its exclusionary law has a legitimate basis and is not intended solely to protect local utilities from competitors.

  • The Texas Freeze: Why the Power Grid Failed

    February 22, 2021

    A fundamental flaw in the freewheeling Texas electricity market left millions powerless and freezing in the dark this week during a historic cold snap. The core problem: Power providers can reap rewards by supplying electricity to Texas customers, but they aren’t required to do it and face no penalties for failing to deliver during a lengthy emergency. That led to the fiasco that left millions of people in the nation’s second-most-populous state without power for days. A severe storm paralyzed almost every energy source, from power plants to wind turbines, because their owners hadn’t made the investments needed to produce electricity in subfreezing temperatures...Within the competitive Texas power market, there is a strong incentive for generators to keep costs down to recoup their investments. The rapid buildout of wind and solar power, which are now among the cheapest sources of electricity, have pushed prices even lower in recent years, making it more difficult for gas and coal plants to compete. For plant owners, that presents a paradox: Should they add to their capital costs by preparing for severe cold snaps that occur only occasionally, or skip the preparation and risk tripping offline, missing out on high prices and exacerbating a potential supply shortage? “With everything there is a trade-off,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “More resilience is potentially more expensive, but electricity is an essential service. These are hard decisions.”

  • Biden’s Secret Weapon to Cleaning Up Energy Is Spelled FERC

    January 29, 2021

    President Joe Biden outlined ambitious new plansfor taking on climate change on Wednesday, but the most potent weapon may already be in his arsenal. The five-member Federal Energy Regulatory Commission is poised to play a pivotal role fulfilling Biden’s clean-energy ambitions, including his vow to strip greenhouse gas emissions from the power sector over the next 14 years. FERC could help Biden deliver on those promises by fostering carbon prices on electricity, propelling a massive build-out of high-voltage power lines and making it harder to build natural gas pipelines...Biden can’t count on help from Congress. With Democrats having only a narrow hold on the House and Senate, it’s unlikely both chambers will pass broad clean energy legislation, including a nationwide renewable power mandate. Enter FERC, which can accomplish many of the same goals, said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “FERC will be an indispensable player in the Biden administration’s clean energy agenda,” Peskoe said. “It’s the federal regulator of two major energy industries -- the power sector and the natural gas industry -- so it matters a lot in how this energy transition plays out.”

  • Transmission week: how to start building more big power lines

    January 28, 2021

    Welcome back to Transmission Week here at Volts! In my previous post, I explained why the US needs lots of new high-voltage power lines. They will help stitch together America’s balkanized grids, connect remote renewable energy to urban load centers, prepare the country for the coming wave of electrification, and relieve grid congestion. And oh yeah — we won’t be able to decarbonize the country without them... Today, we’re going to walk step by step through the process and show why they’re not getting built. At each stage, we’ll look at what Congress can do — and what Biden can do without Congress’ help — to get the process moving...As Ari Peskoe of the Harvard Electricity Law Initiative writes in a recent paper, “FERC was optimistic that [the IOUs’] central-planning development model would be replaced by ‘well-defined transmission rights and efficient price signals’ that would facilitate market-driven expansion.” When it didn’t quite work out that way, once again, in order 1000, “FERC employed several mechanisms to pry control over regional transmission development from IOUs and break the IOU-by-IOU planning model,” Peskoe writes...IOUs have engaged in a “shift away from regional projects, which must be developed competitively, to smaller or supposedly time-sensitive projects that IOUs build with little oversight and without competitive pressures,” Peskoe writes, and RTOs have implicitly or explicitly supported them in this shift.

  • After Trump no-show, Supreme Court fight over Wash. coal exports left to Biden

    January 22, 2021

    The Trump administration did not offer comment to the U.S. Supreme Court about a bid by certain coal-producing states to reject the legitimacy of Washington state standing in the way of a coal export terminal, leaving an opportunity for a Biden administration-controlled U.S. Justice Department to give an opinion instead...The justices have not decided whether they will hear the full case; a decision requires the support of at least four justices. In October 2020, the Supreme Court invited the acting solicitor of the U.S. Justice Department to comment on whether the case should be heard. The Trump administration's DOJ had not filed anything as of Jan. 21, the Supreme Court docket shows... The legal arguments could be dividing conservative justices on the court, making it difficult to proceed to oral arguments, according to Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. Following the lead of former Associate Justice Antonin Scalia, Associate Justice Clarence Thomas has rarely been willing to recognize the legitimacy of the Dormant Commerce Clause, and newly confirmed Associate Justice Amy Coney Barrett may feel similarly. "Given that [Amy Coney Barrett] is apparently a Scalia acolyte, the other four conservative justices would have to decide to hear this case for it to move forward," Peskoe said in a Jan. 21 email. "I don't see it happening. My guess — and it's just a guess — is that the Trump DOJ didn't think this case was worth the effort, given the very long odds."

  • Biden’s Climate Goals Get Greener Path as Democrats Take Senate

    January 8, 2021

    The slim edge Democrats won in the Senate renews hopes for limited legislation to combat climate change, such as measures to fulfill President-elect Joe Biden’s pledge to promote the use of electric vehicles and clean energy. But the ambitious Green New Deal, as well as controversial proposals to phase out fossil fuels and ban fracking, are still on ice...Renewable energy advocates said they expect Democrats in charge of the House and the Senate to collaborate with Republicans on a green-themed infrastructure bill that contains encourages sustainable development, including investments in mass transit and charging stations for electric cars. Republicans and Democrats also could find common ground on efforts to support carbon capture and sequestration technology essential to pare emissions from power plants as well as heavy manufacturing. The Democratic takeover of the Senate also could provide an easier path for Biden’s nominees to federal agencies that control energy and climate policy, including the Federal Electricity Regulatory Commission, where three Republicans are set to hold a majority until midyear. “FERC will become a Democrat-majority body and there won’t have to be any horse trading with the Republicans to make that happen,” said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “McConnell was not shy about holding up Obama’s nominees, so there was precedent for sitting on the nominee forever.”

  • Democrat-controlled Senate sets stage for new FERC majority, policy direction

    January 8, 2021

    A pair of U.S. Senate wins by Democrats in Georgia means that current Majority Leader Mitch McConnell will no longer have the ability to unilaterally prevent the Federal Energy Regulatory Commission from having a Democrat majority this year. The development means that the federal agency could play a more expansive role in advancing President-elect Joe Biden's energy and climate policy agenda during his first term, especially given that the Democrats' slim control of the U.S. House of Representatives and Senate may thwart the passage of more progressive legislation. The agency currently has a 3-2 Republican majority, but one of the Republican seats will expire in June...While FERC controls its own agenda, it also has to respond to filings made by regulated parties like utilities and other key players such as environmental organizations, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "So it could be that whatever agenda FERC might have in mind could be, in part, overtaken by whatever is put before it," Peskoe said in an interview. Peskoe noted that this occurred early in the Trump administration when the Energy Department in September 2017 pursued a proposal to prop up ailing coal- and nuclear-fired generators with subsidies, an effort that ultimately failed. "I'd be surprised if the Biden DOE did something like that, but it just illustrates the fact that things can be out of the control of commissioners sometimes," Peskoe said. Parallel examples in a Biden administration could include a carbon pricing proposal from the New York ISO or a complaint filed by clean energy advocates concerning wholesale capacity market rules, Peskoe said.

  • Commodities 2021: FERC seen as major player in clean energy transition going into 2021

    January 4, 2021

    Industry observers see the Federal Energy Regulatory Commission as a major player in the clean energy transition and believe new leadership that will take the helm at the agency in 2021 could aid with effectuating the climate goals of the president-elect and certain states. Once considered an obscure, sleepy agency, clashes over natural gas infrastructure projects, coal plant retirements and state clean energy policies thrust the agency into the center of climate debates. With authority over power sector operations and planning, its decisions are helping to shape the evolution of the sector and influence the energy transition...Ari Peskoe, director of Harvard Law School's Electricity Law Initiative, said that "regardless of whether Congress passes clean energy legislation, the Democratic-led FERC should choose to wield its authority to support a clean energy agenda." He asserted that FERC had broad discretion to do so given that it operates under flexible legal standards and already has transmission oversight and market regulation authorities. In a paper, he specifically advocated for FERC to ensure that transmission networks support clean energy deployment and that power market rules align with the clean energy transition. As such, Peskoe said FERC would "be an indispensable player in the Biden administration's clean energy agenda" as its decisions would affect the pace and cost of clean energy deployment.

  • Most of America’s dirty power plants will be ready to retire by 2035

    December 10, 2020

    The U.S. energy transition is well underway. Electricity from solar and wind is increasingly competitive with natural gas power, and the grid is hemorrhaging coal plants that no longer make economic sense. But without any real national climate policy managing the decline of fossil fuels, the transition is scattershot, messy, and full of carnage. Power companies announced more than 13 coal plant retirements this year, in many cases moving up previously announced closures and shortening the window of time the communities that live near and work at those plants have to think about what comes next...There’s also no single, swift action the Biden administration could take to require all fossil fuel–burning power plants to shut by 2035. Ari Peskoe, director of Harvard University’s Electricity Law Initiative, told Grist that instead, the government could try to approximate that deadline through environmental and economic regulations. The Environmental Protection Agency (EPA) could regulate greenhouse gas emissions, and states could choose to adopt even stricter rules. Some are already doing so — three coal plants in Colorado may be forced to shut down in 2028, two years earlier than previously planned, to meet the state’s climate targets and an air quality rule that seeks to improve visibility in Rocky Mountain National Park...The other side of the coin is preventing new gas-powered generators from being built. Peskoe said the EPA could put stricter rules on new plants, and he expects to see rule changes in interstate electricity markets that make the economics of building a new plant less favorable. “They can also stop pipeline expansion too, which is obviously related to power plant expansion,” he added.

  • Are utilities legally required to plan for climate change? ‘The devil is in the details.’

    December 9, 2020

    Electric utilities have a legal obligation to plan for climate change and its impacts under public utility and state tort laws, and could face liability if they fail to do so, according to a new report from the Environmental Defense Fund and the Sabin Center for Climate Change Law at Columbia Law School...The use of tort law, which covers harm related to civil claims, could provide "another legal mechanism for reforming local electricity distribution," according to Ari Peskoe, director of Harvard University's Electricity Law Initiative. But he said "the best approach" remains using the utility regulatory commissions to ensure utilities are prepared for climate change...Ratemaking and planning processes remain the most effective way to reform how utilities do business, according to Peskoe. "Reform advocates can participate in those processes, but ultimately PUCs make the decisions," he said in an email. "Tort law provides another avenue for advocates, although it’s more reactive." Peskoe said claims made under tort law can be "another tool in the toolbox for advocates to pursue reforms." "I suppose the goal of these tort cases would be to make utilities’ past practices so expensive ... that they are essentially compelled to reform their operations or planning in response," Peskoe said.

  • FERC Dissents Reveal Continued Political Tension on Clean Energy Policy

    November 23, 2020

    Thursday’s meeting of the Federal Energy Regulatory Commission started off with expressions of comity between its three commissioners. It ended with another round of dissents from its sole Democrat, who warned of possible legal challenges to FERC decisions approved by its Republican majority over his objections. Questions of political pressure on the avowedly nonpartisan agency have swirled around FERC over the past weeks after the Trump administration demoted Neil Chatterjee from his two-year tenure as FERC chairman to appoint fellow Republican James Danly to the leadership position...Ari Peskoe, director of the Electricity Law Initiative at Harvard University, noted that FERC’s subsequent actions to impose even more problematic restrictions on state-subsidized resources in the capacity market of mid-Atlantic grid operator PJM may strengthen legal challenges to ISO-NE's CASPR construct. “One of the key legal issues in both proceedings is FERC’s authority to address state policies,” he wrote in a Thursday email. “FERC went further in PJM, and perhaps clean energy interests will be able to make more convincing arguments based on those facts.”

  • Demoted FERC chair sees himself, agency playing big post-election role

    November 9, 2020

    Federal Energy Regulatory Commission member Neil Chatterjee defended his actions on clean energy and climate after President Donald Trump on Nov. 5 unexpectedly replaced him as chair of the independent agency. Chatterjee said he also sees an outsized role for FERC, and himself, if former Vice President Joe Biden wins the presidency and Republicans maintain control of the U.S. Senate...FERC issued a news release late Nov. 5 announcing that Chatterjee had been replaced as chair by fellow Commissioner James Danly, who in various dissents and statements has conveyed a narrow view of the quasi-judicial regulator's authority. Chatterjee has promised to stay on through the end of his term at the end of June 2021 or potentially longer if the Senate is unable to confirm a replacement before the next U.S. Congress is sworn in. Chatterjee speculated that the decision to hand Danly the gavel may have been related to a draft policy statement issued by FERC last month outlining the commission's legal authority to approve wholesale power market rules that accommodate state-determined carbon pricing. Danly penned a partial dissent to the policy statement, arguing it was issued prematurely...In the meantime, observers should not expect Danly to initiate proactive rulemakings in the same way FERC did for energy storage and distributed energy resources following the 2016 election, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "Danly has explained that he is not a proactive regulator, so I don't expect him to launch any agenda," Peskoe said in a Nov. 6 email.

  • Election 2020: Trump’s FERC may need to shift course on clean energy, though Biden’s road will not be easy

    October 28, 2020

    The rapid evolution of the power grid will require the attention of one critical agency —  the Federal Energy Regulatory Commission. And observers say no matter what happens Nov. 3, the agency will have no choice but to address the industry's transition, even if it means backing away from some of its more controversial policies. Over the past four years, the commission has been accused of trampling on state efforts to move away from fossil fuels and toward zero-carbon, renewable resources...The Biden Administration has an ambitious plan to bring the grid to zero-carbon electricity by 2035, an ambitious target that exceeds the goals of utilities' mid-century decarbonization plans, already considered aggressive by some in the industry. Getting that type of plan through Congress will be difficult in itself, dependent, in part, on which party secures the majority in the Senate. "FERC's role could really hinge on whether Congress does enact any clean energy legislation, even if that energy legislation doesn't specifically task FERC with anything," said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School's Environmental and Energy Law Program. For example, if Congress were to pass any sort of clean energy standard, FERC would be beholden to that law, regardless of who was in charge of the commission. FERC's efforts over the past few years have been centered around "leveling the playing field" for energy resources, much of it said by NGOs and others to be aimed at state clean energy policies and subsidies, which Chatterjee and fellow conservative Republican-appointed commissioners have characterized as "distorting" the markets by giving renewable or zero carbon resources an advantage over fossil fuel generators. But under a federal clean energy standard, "everybody is under the same obligation," said Peskoe. "I don't think FERC could ignore that."

  • FERC has legal authority to implement a carbon price, experts tell commissioners

    October 2, 2020

    The Federal Energy Regulatory Commission does have the legal authority to implement a carbon price, legal experts agreed during a Wednesday technical conference on carbon pricing. Under sections 206 and 205 of the Federal Power Act, FERC has the authority to actualize such a policy through the regional transmission operators (RTO) and independent system operators (ISO), six panelists spanning academia and industry law told commissioners. But a slightly murkier question is whether the commission has the power to implement such a tariff unilaterally — an issue Commissioner James Danly was particularly interested in. If FERC were to establish a record, there is no "inherent jurisdictional bar" to prevent the commission from issuing a carbon price without a direct request from grid operators, Ari Peskoe, director of Harvard's Electricity Law Initiative, said. Others said it was possible, but tricky without a legislative mandate. FERC's highly-anticipated carbon pricing conference raised a number of questions about the technical feasibility of implementing a carbon price. For Danly, FERC's newest commissioner, only one question was relevant: Does FERC have legal authority to do this? ... Danly pressed this point further in his line of questioning. "I'm assuming ... from what I've heard that there's nobody on the panel who believes that FERC has the mandate or authority to simply unilaterally impose the universal carbon pricing system," he said. Peskoe countered that he thought the commission did, in fact, have that authority.

  • FERC urged to make way for carbon pricing

    October 1, 2020

    Carbon pricing in regional wholesale power markets is a good if not necessary step to combat climate change and ensure reasonable rates for electricity customers. That was the consensus yesterday among 30 energy sector panelists who discussed the pricing mechanism before the Federal Energy Regulatory Commission. In an all-day, long-anticipated virtual conference, an array of academics, grid operators and utility executives discussed FERC's legal authority, various designs for adding a carbon price in regional markets — and potential pitfalls... That could send a signal to states that they can develop carbon pricing programs without fear that FERC would reject those proposals, Dennis said...Experts on the first panel yesterday focused on FERC's legal authority to implement carbon pricing in wholesale markets. Kate Konschnik, the director of climate and energy programs at Duke University, and Ari Peskoe, the director of the Harvard Electricity Law Initiative, agreed that such a policy is within the agency's purview. "The Federal Power Act poses no fundamental obstacle to markets incorporating state carbon pricing," Konschnik said. Peskoe said pricing carbon is not merely an environmental issue, noting financial regulators have warned about potential costs from failing to put a price on emissions. "No serious conversation about the future direction of the power industry ignores carbon emissions," he said. "The commission has a duty to encourage the industry's orderly development. It should not dismiss carbon pricing as someone else's job."

  • Ill. Gov. Pritzker pushes back on Exelon call for aid

    August 28, 2020

    Illinois Gov. J.B. Pritzker dialed up the heat on Exelon Corp. last week with an energy plan that rejected the Chicago company's call for policy changes to prop up its nuclear fleet. Yesterday, Exelon pushed back on Pritzker and Illinois legislators, threatening to close two nuclear plants in the northern half of the state that the company had previously warned were at risk. Besides the loss of an additional 1,500 jobs if the plants close and millions of dollars in local taxes for governments challenged by an economic downturn from COVID-19, the closures would mean the loss of 4,300 megawatts of Illinois' carbon-free energy at a time when the governor has promised to cut carbon emissions (Greenwire, Aug. 27). Nuclear industry supporters say there's no getting around the fact that the closure of the two plants would lead to an increase in carbon emissions, at least in the short run. And no matter their view of Exelon, elected officials in Illinois, including Pritzker, don't want to see the reactors shut down, costing local jobs and tax revenue...That's especially true if Exelon is looking for help outside the Statehouse, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. At the federal level, Democrats in Congress have discussed a federal clean energy standard. But that would be on the table only if the party can take control of the Senate this fall and former Vice President Joe Biden defeats President Trump (Climatewire, Aug. 26). Even then, passing and implementing such a bill wouldn't be quick or easy. Regulators led by a new Federal Energy Regulatory Commission chairman under a Biden administration could also seek changes to PJM market rules (Energywire, Aug. 24). Such a process can take years to work through. "There's a lot of things the state or Congress or FERC could do, but those would take time," Peskoe said. Even if Biden and the Democrats win big in November, "it's not going to happen on Jan. 21."