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Ari Peskoe

  • Updated: DOE proposes cost recovery for baseload generators in new FERC rule

    October 2, 2017

    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."

  • Perry proposes regulatory overhaul to boost coal, nuclear

    October 2, 2017

    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."

  • What to watch in the wake of the DOE grid study

    August 29, 2017

    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.

  • New York ZEC Suit Dismissed

    August 1, 2017

    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.

  • Why Court Victories for New York, Illinois Nuclear Subsidies Are a Big Win for Renewables

    August 1, 2017

    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.

  • Court rejects FERC approval of market rate structure

    July 11, 2017

    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.

  • Court hands victory to state utility resource planners

    July 5, 2017

    The recent decision by a federal appeals court rejecting a challenge to Connecticut's solicitation for renewable energy has clarified the authority of states to favor certain types of generation resources over others. "The opinion is particularly significant because it is the first federal court decision to discuss the scope of the Supreme Court's 2016 Hughes decision," said Ari Peskoe, senior fellow in electricity law at Harvard Law School's Environmental Policy Initiative. Peskoe was referring to an April 2016 Supreme Court decision in the case of Hughes v. Talen Energy Marketing LLC where the court unanimously struck down an effort by Maryland to promote new gas-fired generation. The court said the state strayed into federal regulators' exclusive jurisdiction over wholesale electricity markets.

  • Citing ‘Hughes v. Talen,’ court rejects challenge to Connecticut’s renewable RFP

    June 29, 2017

    ...Allco Financial, an affiliate of developer Allco Renewable Energy, was rebuffed twice by a federal court that ruled the company did not have the legal standing to bring the case. But Allco reframed its case and won an injunction in district court barring Connecticut from awarding contracts stemming from its renewable energy solicitation. The injunction was later lifted, but Allco appealed the district court ruling to the appeals court. The appeals court has now upheld the district court ruling. “The opinion is particularly significant because it is the first federal court decision to discuss the scope of the Supreme Court’s 2016 Hughes decision,” said Ari Peskoe, senior fellow in electricity law at Harvard Law School's Environmental Policy Initiative and manager of the State Power Project website.

  • The only certainty in Trump’s climate orders? More lawsuits

    March 30, 2017

    President Trump this week signed an executive order that begins rolling back the climate actions taken by his predecessor. Making good on promises to cut regulations and restrictions on energy production, Trump told coal miners on stage with him, "you're going back to work." There is much debate over whether that can happen..."The most immediate impact is a lot of litigation," said Ari Peskoe, senior fellow in electricity law at the Harvard Law School Environmental Law Program Policy Initiative.

  • The little-watched renewables case that could bring big changes to federal-state jurisdiction

    December 8, 2016

    A federal court in New York is scheduled to hold a hearing Friday on a case that could have implications for the legal boundaries between federal and state authority regarding energy policy....“If the court reaches the merits, it will likely be the first to opine on the meaning of Hughes,” said Ari Peskoe, senior fellow in electricity law at the Environmental Policy Initiative at Harvard Law School and the manager of the Initiative’s State Power Project website.

  • How natural gas and nuclear have made the US greener – times two

    December 8, 2016

    Two-thirds of US states saw their economies grow while they reduced their carbon-dioxide emissions from 2000 to 2014. They did this by relying more on natural gas and nuclear energy for electricity production and less on coal, according to a report published Thursday by the Brookings Institution...Ari Peskoe, a senior fellow in electricity law at Harvard Law School, tells the Monitor in an email that state policy has been a major driver in the growth of renewable energy. He cites the Lawrence Berkeley National Lab, which found that more than half of all growth in renewable electricity generation since 2000 is associated with state's Renewable Portfolio Standards requirements. But federal policies, he added, such as renewable energy tax credits, appliance efficiency standards, and Environmental Protection Agency regulations, probably contributed too.

  • Why insiders think the EPA got the best of the Clean Power Plan hearing last week

    October 5, 2016

    The smart money is on the Environmental Protection Agency to prevail as the D.C. Circuit Court reviews its landmark Clean Power Plan, according to experts. But it may not be due to the legal arguments alone...“The petitioners are really focusing on the word ‘source’ and hanging their argument on that word for the most part,” Ari Peskoe, a senior fellow in electricity law at Harvard Law School, told Utility Dive...For Peskoe, attributing the judges’ questioning too much to personal opinion is fraught with peril — it's too much about “trying to get in the heads of the judges,” he said — but he agreed that the fact this case is about climate and carbon, and not another pollutant, could have an impact.

  • DC Circuit primer: All you need to know ahead of the Clean Power Plan’s pivotal court date

    September 20, 2016

    Make no mistake, the Clean Power Plan is almost certainly heading for an ultimate showdown at the U.S. Supreme Court. The stakes are so high that virtually any lower court decision will be challenged. But the U.S. Court of Appeals for the District of Columbia Circuit slated to consider the case first, with oral arguments beginning Sept. 27. So is that court's decision just a mere formality? Absolutely not, say experts..."The lower court decision sets up the case," said Ari Peskoe, senior fellow in electricity law at the Harvard Law School Environmental Law Program Policy Initiative. "The D.C. Circuit decision is going to be important regardless."

  • With Clean Energy Standard, New York looks to save nukes, skirt legal challenges

    August 4, 2016

    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.

  • Appeals court upholds ruling blocking Minnesota clean energy law

    June 21, 2016

    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.

  • No news may be good news for FERC in grid case

    January 14, 2016

    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."

  • Supreme Court’s challenge: Fit new grid into old law

    October 22, 2015

    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."

  • Lawsuit Challenges A Bedrock Of Connecticut’s Energy Policy

    April 28, 2015

    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.

  • Professor Jody Freeman LL.M. ’91 S.J.D. ’95

    Tackling Climate Change through Law and Policy: A Q&A with Jody Freeman

    April 24, 2014

    n the spirit of Harvard University President Drew Faust’s recent focus on addressing the problem of climate change, we interviewed HLS Professor Jody Freeman, who served in the Obama administration as Counselor for Energy and Climate Change and is the co-author of a forthcoming book on global climate change and U.S. law.