Ari Peskoe

New York regulators approved an aggressive Clean Energy Standard this week that calls for 50% renewable energy and includes income supports to keep three upstate nuclear plants online. A close reading of the Public Service Commission’s order reveals the state believes it has no choice but to support the plants, or risk falling short on emissions goals. At the same time, the order has been carefully crafted to pass federal or legal scrutiny, though a challenge is all but inevitable...Ari Peskoe, senior fellow in electricity law at Harvard Law School, said he concluded the New York order would not be preempted — at least, not based on the Hughes argument. “The distinction, and the PSC was very deliberate — the commission is not adjusting a wholesale rate. What they’re doing is valuing the carbon-free attribute," Peskoe said. "They’ve been smart about how they’re going about it." That's not to say some party won't make that argument. But “Hughes is a really narrow decision," Peskoe said.

A federal appeals court on Wednesday upheld a ruling that Minnesota’s 2007 clean energy law illegally regulates out-of-state utilities, the latest and perhaps final chapter in a five-year legal battle between the state and North Dakota. The appellate court decision is a win for the state of North Dakota and its utility and coal interests, which argue that the Minnesota law hampered their ability to sell electricity from coal-fired power plants and build new coal generators...Even more difficult would be an appeal directly to the U.S. Supreme Court. “It’s unlikely the Supreme Court takes this case,” said Ari Peskoe, an energy fellow at Harvard Law School’s Environmental Policy Initiative.

After the Supreme Court heard oral arguments over a major energy conservation rule in October, supporters of the regulation were anxious. Their fear: A divided court would act swiftly to reject a Federal Energy Regulatory Commission "demand-response" rule requiring power users to be paid for committing to scale back electricity use at times of peak demand. But the passage of weeks and then months with no decision could be a signal that the justices will do more than simply kill the regulation...Given that both cases concern the boundaries of state and federal authority, some lawyers say arguments in the Maryland cases might help shed some light on the demand-response cases. "Maybe they're waiting to hear the other side of that argument before trying to draw a line," said Ari Peskoe, an energy fellow at Harvard Law School's Environmental Policy Initiative. If the justices were aiming to create sound policy regarding the regulatory divisions, "maybe they want to hear both sides so they can try to craft that correctly."

What happens when you try to fit an evolving electric grid into an 80-year-old statute? Lawsuits wind their way to the Supreme Court. In a move that surprised energy experts, the high court has decided to hear at least two cases this year that deal with how to regulate evolving electricity markets...Ari Peskoe, an energy fellow at Harvard Law School's Environmental Policy Initiative, said it's surprising the court decided to take back-to-back FERC cases. "Hopefully, these two decisions combined will give a lot of clarity in an area that I think really needs it," he said. "This section of the Federal Power Act was written 80 years ago, and it hasn't changed, but the industry has."

A New York clean energy developer is suing Connecticut over its renewable energy subsidy program, claiming the state’s policy violates constitutional rules about regulating business across state lines...Legal experts say the challenge to Connecticut’s renewable incentives is unique for many reasons. While the dormant Commerce Clause has been cited in cases regarding clean energy policies, it has not been used against a state that limits its renewable energy to the region, rather than the individual state. “It’s an issue that has been discussed in academic circles, but nobody had filed the challenge,” said Ari Peskoe, an energy fellow at Harvard Law School’s Environmental Policy Initiative, which tracks litigation. He said the case is also unique in that the plaintiff is a clean energy developer. Peskoe said Connecticut has good arguments for its renewable subsidies, but if the case is heard on its merits, its effects could ripple through the country. “A lot of states have a similar regional deliverability requirements, and a judgment that went for Allco in this case could be broadly applicable,” Peskoe said.