Ari Peskoe

FirstEnergy Solutions says DOE must act to save coal and nuclear power in the mid-Atlantic, but the region's grid operator says there's no emergency — and in fact, it will probably get along just fine without FirstEnergy's power plants. In a highly unorthodox application to Energy Secretary Rick Perry, the subsidiary to FirstEnergy Corp. blasted PJM Interconnection and FERC for failing to ensure that coal and nuclear plants make enough money to stay afloat..."The chutzpah involved here!" said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. He said the company's request was the same as Perry's earlier proposed rule, but this time "with a statutory mechanism." "They’re asking it for numerous other entities that have not made the request, and some were opposed to the original NOPR," Peskoe said.

Legal experts have been saying for months that Energy Secretary Rick Perry’s plan to upend energy markets in order to prop up uncompetitive coal and nuclear power plants was destined to fail. Monday’s unanimous dismissal by the Federal Energy Regulatory Commission -- an independent agency with four of its five members appointed by President Trump -- only confirmed that view...“If you look at the order on Monday, I think FERC starts out by reiterating its preference, its policies, for promoting competition, and quickly then rejects the proposal as unjust and unreasonable,” said Ari Peskoe, senior fellow with Harvard Law School’s Environmental Law Program. “They don’t waste a lot of time on the proposal. I think they just view it as completely inconsistent with everything the commission has done over the past 20 years.”

Every so often, a policy proposal comes along that's so ill-conceived, one can dispense with the usual nuance and just call it flat-out ridiculous. Energy Secretary Rick Perry's plan to subsidize coal-fired and nuclear power plants for stockpiling fuel was just such a proposal...Ari Peskoe, a senior fellow in electricity law at Harvard Law School, sees some merit in finding ways to prevent plants that are providing power to the grid from incurring losses. Equally, though, he points out that keeping inflexible plants on the grid adds cost to the system, especially as coal-fired plants, for example, "seem like the kind of resources that are eventually going to go away."

Newly-arrived Chairman Kevin McIntyre wasted little time exerting his influence on the deliberations over DOE's proposed grid resilience rulemaking. Hours after being sworn in, McIntyre sent a letter to Secretary of Energy Rick Perry requesting another month to examine the DOE plan..."FERC always had the authority to alter the timeline as it saw fit," said Ari Peskoe, senior fellow in electricity law at Harvard's Environmental Policy Initiative. "This appears to be FERC being courteous, but there’s nothing DOE can do to force FERC’s hand on Monday."

The rapid rise of wind and natural gas as sources of electricity is roiling U.S. power markets, forcing more companies to close older generating plants...“Generators are just fighting for existing market share,” said Ari Peskoe, a senior fellow in electricity law at Harvard Law School. “The aging fleet of coal and nuke generators, combined with low prices, makes this intense.”

The rapid rise of wind and natural gas as sources of electricity is roiling U.S. power markets, forcing more companies to close older generating plants. Wholesale electricity prices are falling near historic lows in parts of the country with competitive power markets, as demand for electricity remains stagnant while newer, less-expensive generating facilities continue to come online....“Generators are just fighting for existing market share,” said Ari Peskoe, a senior fellow in electricity law at Harvard Law School. “The aging fleet of coal and nuke generators, combined with low prices, makes this intense.”

State-federal tension over electricity policy is likely to continue even after current debates over nuclear and coal subsidies end, speakers told the National Association of Regulatory Utility Commissioners’ Annual Meeting last week. In fact, said former FERC Commissioner Tony Clark, “things are probably going to get more tense and more difficult before they get easier.”...Ari Peskoe, of Harvard Law School’s Environmental Policy Initiative, said legal challenges to Illinois’ and New York’s zero-emission credits for nuclear plants “expose a question that courts have not addressed in the 20 years of restructuring: May a state provide an incentive for energy production without intruding on FERC’s exclusive jurisdiction over energy sales? Perhaps the state authority over generating facilities means just that — the facilities themselves, and not the energy that they produce,” he said.

Troves of recent comments from supporters and critics of a Trump administration plan to support coal and nuclear power generation are just the beginning of what promises to be a bitter battle over the future of electricity markets. As the Federal Energy Regulatory Commission sifts through arguments over a Department of Energy proposal to prop up "fuel-secure" generators to boost the grid's resilience, one thing is clear: The embrace of any approach that appears to favor coal and nuclear over other fuel sources will spark a mad dash to the courtroom..."FERC can only order a change in rates if it first concludes that current rates are unjust and unreasonable," said Harvard Law School electricity expert Ari Peskoe, who noted that FERC's previous proposals for market rules through the years have included such a finding. "That's fundamental to the Federal Power Act. It's to protect utilities and the public from arbitrary rate changes."

Supporters of the Department of Energy’s proposal to provide cost recovery for coal and nuclear plants are leaning on a broader interpretation of the Federal Power Act to justify the rule in their comments at the Federal Energy Regulatory Commission...“There is a distinction between what FERC can do as a matter of law and what it should do,” Ari Peskoe, a senior electricity fellow at Harvard Law School, wrote to Utility Dive in an email. “As a matter of law, once FERC makes a technical judgment that a market rule will result in just and reasonable rates, as long as it has some evidence in the record to support its decision, it’s difficult to get a court to overturn that determination."

With the deadline for public comment on the Department of Energy's controversial proposal to provide cost recovery for coal and nuclear power plants fast approaching, all sides have been weighing in. The DOE’s notice of public rulemaking (NOPR) is currently in the hands of the Federal Energy Regulatory Commission (FERC), which recently agreed to an expedited review period...In a filing this week, Ari Peskoe, a Harvard Law School senior fellow writing for the Harvard Environmental Policy Initiative, laid out a Iegal argument he discussed days after the NOPR first came out during an interview on The Interchange with GTM Research chief Shayle Kann. In simple terms, DOE hasn’t shown, or even proposed, that current wholesale rates in FERC-regulated jurisdictions are “unjust and unreasonable” or “unduly discriminatory” -- and without such a finding, FERC has no justification to act to change what’s already in place.

In 2016, then Republican presidential nominee Donald Trump pledged to "put coal miners back to work." That promise included replacing the Obama administration's Clean Power Plan, which sought to slash power sector emissions, and was the centerpiece of the U.S. commitment to the Paris Climate Agreement...Ari Peskoe, senior fellow in electricity law with the Harvard Law School, noted the EPA did not issue a new finding contradicting the Clean Power Plan’s analysis on energy options for utilities. “[There is] nothing in here about renewable energy was too expensive. They are not going back to the record to find new analysis,” Peskoe said.

A New York-based electricity provider is suing two Minnesota public agencies over a law it claims improperly favors home-state companies for new power line projects. The 2012 state law gives "incumbent" electricity transmission providers in Minnesota a "right of first refusal" for new power line projects. In other words, they get first dibs over companies that don't currently have transmission lines in Minnesota..."There are a few other states that have such laws," said Ari Peskoe, a senior fellow at Harvard Law School's Environmental Policy Initiative. None has been tested in a federal court. The suit by LSP Transmission "could set an important precedent," Peskoe said.

A new proposal from the Trump administration could force Californians to foot some of the bill for propping up struggling coal plants in Utah and Wyoming, critics say — but only if California Gov. Jerry Brown succeeds in his quest to unify the western power grid...While the text of Perry's proposal is difficult to decipher, its goal seems to be "guaranteed profitability" for certain power plants, said Ari Peskoe, a senior fellow in electricity law at Harvard Law School who has litigated cases before the commission. "It flies in the face of everything FERC has done for the last 20 years, which is really promoting the development of competitive markets for energy," Peskoe said.

An interview with Ari Peskoe. Thought that controversial grid resiliency report ordered by Energy Secretary Rick Perry was only an intellectual exercise? It didn't take long for the Department of Energy to put it into action -- in exactly the way that critics feared when the report was first announced. Last week, Perry asked federal energy regulators to consider new rules that would value coal and nuclear plants that are capable of keeping 90 days of fuel on hand. In other words: Find a way to help keep struggling baseload plants open by offering them a new financial incentive.

A legal battle over the future of the US electricity system is looming after the Trump administration shocked the industry with proposals for new subsidies for coal-fired and nuclear power plants. If implemented, the plan could mean the most radical shake-up of the market in decades. Rick Perry, the energy secretary, on Friday sent a proposal to the Federal Energy Regulatory Commission calling for payments for power plants that provide “essential energy and ancillary reliability services” — and defined these in a way that means only coal and nuclear generators are likely to qualify...Ari Peskoe of Harvard Law School said Mr Perry’s plan did not meet the legal requirements for proposed rules under US administrative procedures, and recommended that FERC treat it as a “comment” on its existing work on supporting grid reliability.

Released at the end of August, the Department of Energy's grid study concluded that the reliability of the bulk power system is strong today, but changes in the resource mix could present challenges in the future. The report urged federal regulators to begin examining how to better compensate generators for the services they provide for reliability and resilience if it finds reliability is threatened..."I would say this is not a proposed rule that could form the basis of a final rule," said Ari Peskoe, senior fellow in electricity law at Harvard Law School's Environmental Policy Initiative​. "Usually proposed rules have far more detail that would provide a basis for comments on specific aspects of the proposal and that's not really here."

In a rare move that could spark sweeping changes in energy regulation, Energy Secretary Rick Perry today called on the Federal Energy Regulatory Commission to take action that could prop up struggling coal and nuclear plants. The Department of Energy wrote in a notice of proposed rulemaking that FERC has an "immediate responsibility to take action to ensure that the reliability and resiliency attributes of generation with on-site fuel supplies are fully valued."...DOE's proposed rule orders FERC to finalize the regulation within 60 days of its publication in the Federal Register, but that timeline might not meet legal requirements, said Ari Peskoe, a senior fellow at the Harvard Law School Environmental Policy Initiative. "FERC rules usually have much more technical detail," said Peskoe. "This reads more like a directive to FERC to figure this out."

The Department of Energy's grid reliability study has been described in many ways since it dropped last week, including schizophrenic, and an effort "to bail out aging coal and nuclear plants." But overall, the reaction has been more moderate and cautiously complimentary...Instead, the consensus seems to be that the study fairly accurately identifies how the nation's bulk power system reached this point: struggling with a changing generation mix and market structure that does not always align with policy goals. Environmental groups have been harsh judges of the document, but others say it is, all in all, fairly unremarkable in political terms. "It's a good compendium of information, but it's nothing new," said Ari Peskoe, senior fellow in electricity law at Harvard Law School.

A federal judge on Tuesday dismissed all claims in a suit against New York State’s zero-emissions credit program, the second such victory for state nuclear subsidies after a complaint over the Illinois ZEC program was thrown out July 14. Judge Valerie Caproni of the U.S. District Court for the Southern District of New York granted motions to dismiss the case from the state’s Public Service Commission, the defendant, and intervenor Exelon, owner of the three New York nuclear plants that will receive ZEC payments (16-CV-8164)...The Illinois and New York decisions are the latest in a string of federal court cases testing the boundaries between state and federal jurisdiction over electricity markets. “Under current law, states have broad authority to advance a cleaner electric grid,” said Ari Peskoe, senior fellow in electricity law at Harvard Law School, who tracks constitutional challenges to state energy policies.

A federal judge in New York ruled last week that the Empire State’s plan to subsidize nuclear power plants “is constitutional” and “of legitimate state concern.” It’s a significant win for the nation’s largest nuclear fleet owner Exelon, which has been struggling to keep its money-losing power plants operational amid weak electricity demand and low energy prices. But the ramifications of last Tuesday’s decision go well beyond the legality of New York’s nuclear program...“Courts have upheld three programs in one month, all confirming states have authority to favor certain types of generation and use financial incentives to effectuate those preferences,” said Ari Peskoe, senior fellow in electricity law at the Harvard Law School Environmental Law Program Policy Initiative.

A federal court today threw out the Federal Energy Regulatory Commission's approval of a rate structure in a decision that some analysts said could limit the regulator's ability to modify electricity market designs...But Ari Peskoe, a senior fellow in electricity law at Harvard Law School, said he didn't see the ruling as limiting FERC's ability to set market designs. "In this case, it appears that FERC could have achieved the same result by rejecting PJM's filing entirely, explaining exactly why it was rejecting it, and then suggesting that PJM submit the same filing but with the suggested changes," he said.