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Ari Peskoe

  • 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."

  • A blow to small solar, a win for states and utilities? Regulators, analysts assess FERC’s PURPA rule

    July 30, 2020

    Changes to the way a 40-year-old federal law is implemented could significantly benefit vertically-integrated utilities in non-competitive markets, while harming small-scale solar developers, stakeholders told Utility Dive...Critics say states' ability to set prices paid to small solar at varying levels with no guaranteed long-term contract could allow some to set policies that harm independent power producers. "This ultimately harms renewable energy generators because they lose [these] long-term fixed price contracts and other benefits they had under the old rules," Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, told Utility Dive... "The utilities that benefit most from weakening PURPA are these vertically integrated utilities that are outside of the [regional transmission organization (RTO)] markets and so, therefore, already have the most control over power supply in their regions," said Peskoe. "One reason why Congress enacted PURPA 40 plus years ago ... was to neutralize some of the power that these vertically integrated utilities have, to require them to buy energy from these qualifying facilities because otherwise they would not have bought energy from their competitors." But while Peskoe sees potential problems with FERC's updated PURPA regulations, some state regulators say the new rules will bring clarity and certainty to states in how they implement PURPA moving forward...The larger issue surrounding the risk to renewable energy is financeability, which remains a a key concern left unaddressed by FERC, according to Peskoe. Although state regulators do have "tools in their toolbox" to promote competition, federal rules no longer require utilities to offer long-term contracts with fixed energy prices, Peskoe said.

  • FERC kills anti-net metering plan as PURPA fight rages

    July 20, 2020

    The Federal Energy Regulatory Commission made two decisions yesterday that affect renewable energy, prompting starkly opposing reactions from wind and solar supporters. In a unanimous vote, FERC rejected a contentious petition that sought to end nationwide net metering, a practice that requires utilities to pay rooftop solar owners for the extra electricity they generate...The commission rejected the petition by the New England Ratepayers Association (NERA) on procedural grounds, saying the request didn't identify a specific controversy or harm for the agency to address. Republican Commissioners James Danly and Bernard McNamee offered comments about the petition, raising questions about whether the commission might have an appetite to examine federal jurisdiction over net metering in the future...Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School's Environmental and Energy Law Program who has been critical of NERA's petition, said in general, he doesn't see the commission picking the issue back up, however. "Although perhaps yes if [Republicans] hold the majority for another five years, which might provide enough time for someone to file a more specific petition/enforcement action," he wrote in an email. Peskoe said Danly seemed to suggest parties might now bring lawsuits in federal court to challenge net metering. "Perhaps he knows something. His premise is that various courts might draw different conclusions about FERC's jurisdiction, and that would be a bad result," he said. "He therefore appears to suggest that FERC ought to weigh in, to ensure a uniform national approach to FERC's jurisdiction." He added that a court faced with a net-metering lawsuit could simply ask FERC to weigh in as has happened in the past.

  • FERC kills anti-net metering plan as PURPA fight rages

    July 17, 2020

    The Federal Energy Regulatory Commission made two decisions yesterday that affect renewable energy, prompting starkly opposing reactions from wind and solar supporters. In a unanimous vote, FERC rejected a contentious petition that sought to end nationwide net metering, a practice that requires utilities to pay rooftop solar owners for the extra electricity they generate. That sparked praise from renewable groups that also blasted the agency for a separate, final rule updating the Public Utility Regulatory Policies Act (PURPA), a 1970s energy law meant to promote the adoption of small-scale, independent wind and solar projects...Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School's Environmental and Energy Law Program who has been critical of NERA's petition, said in general, he doesn't see the commission picking the issue back up, however. "Although perhaps yes if [Republicans] hold the majority for another five years, which might provide enough time for someone to file a more specific petition/enforcement action," he wrote in an email. Peskoe said Danly seemed to suggest parties might now bring lawsuits in federal court to challenge net metering. "Perhaps he knows something. His premise is that various courts might draw different conclusions about FERC's jurisdiction, and that would be a bad result," he said. "He therefore appears to suggest that FERC ought to weigh in, to ensure a uniform national approach to FERC's jurisdiction." He added that a court faced with a net-metering lawsuit could simply ask FERC to weigh in as has happened in the past.

  • Group pushing FERC to end net metering slams critics

    July 6, 2020

    The group behind a contentious petition that could curtail net metering nationally dismissed last week thousands of comments filed in opposition to the plan before the Federal Energy Regulatory Commission. The New England Ratepayers Association also revealed in its FERC filing that one of its members is president of an energy company tied to several electric utilities. "[The] arguments Protestors advance are outside the scope of this proceeding and lack merit, and the Commission should promptly grant NERA's Petition," the group's lawyers wrote in the response. The Massachusetts-based nonprofit caused a stir last April when it filed a petition with FERC urging the agency to place net metering under federal jurisdiction. That could effectively upend the widespread practice, which requires utilities to pay rooftop solar owners for the extra electricity they generate and send to the grid (Energywire, April 20)...Ari Peskoe, a director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program who has been critical of NERA's petition, tagged Mitchell in a Twitter post last week asking if the firm president was the same person who signed the affidavit. When Mitchell responded, "Yes," Peskoe asked how long Mitchell has been a member of NERA. "Several years," Mitchell replied. "Do you pay dues to be a member?" Peskoe asked. Mitchell did not respond to that tweet. "I have confidence that FERC staff will read what's been filed in the docket, and FERC will make its decision based on NERA's petition and the actual contents of its opponents' protests," Peskoe said in an email to E+E News. FERC has yet to weigh in on the petition.

  • NERA counters broad opposition to FERC net metering petition, reveals utility-linked member

    July 6, 2020

    Lawyers representing the New England Ratepayers Association (NERA) on Tuesday filed their response to the almost 50,000 comments opposing the group's petition to federal regulators to effectively upend net metering policies nationwide. In their response, the group defended itself against assertions that utility or other industry interests were behind the petition. "NERA is a ratepayer advocacy organization," the attorneys wrote. "It filed its Petition because ratepayers are being required to pay as much as 20 cents per kilowatt-hour for energy that can be purchased on the market for three cents." They argue broadly that opponents give the Federal Energy Regulatory Commission no legitimate grounds for dismissal or denial of the petition...NERA has generated significant attention in the power sector with its April petition asking FERC to declare "exclusive" jurisdiction over behind-the-meter energy generation. Bipartisan groups of state legislators, regulators, attorneys general, governors and other officials filed almost 100 comments in opposition. Advocacy groups, legal experts and academics filed over 500 comments, while almost 50,000 individuals also commented on the filing, all in opposition to the proposal...Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, who also filed comments opposing the NERA petition, said the group's reply "badly mischaracterizes its opponents' arguments and therefore is not informative." "I have faith that the attorneys at FERC will review NERA's initial petition and the numerous responses in opposition, and FERC will issue an order based on what's actually in the filings," he told Utility Dive in an email.

  • Utilities remain mute on FERC net metering petition, leave filing to face overwhelming opposition

    June 16, 2020

    A petition in front of federal regulators to effectively overturn net metering policies nationwide faced overwhelming bipartisan opposition on Monday from state regulators, members of Congress, public power groups and others. Though several utilities filed to intervene on the petition, including Pacific Gas and Electric, Xcel Energy and Duke Energy, none filed comments by the June 15 deadline, so it remains unclear where utilities fall on the issue. Investor-owned utility group Edison Electric Institute (EEI) has said it finds net metering to be a "regressive and poor public policy tool," but the group ultimately decided against filing comments during this initial period. Opponents of the petition decried the move as an affront to states' rights and legally questionable on a number of grounds. Others were also critical of the group that introduced the petition and urged the Federal Energy Regulatory Commission to require it to disclose its backers. State regulators, the renewable energy industry, environmentalists, members of Congress and others have been openly opposed to the New England Ratepayers Association (NERA) petition from the start, but observers have been less sure of where utility interests would fall, particularly after EEI declined to file comment. "The wild card here will be the number of utilities that have already declared their intent to file something here, and I don't know which side of this they're going to come down on," Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School, told reporters last week.

  • Solar Metering Proposal Sets Off State-Federal Power Struggle

    June 15, 2020

    A controversial petition urging the Federal Energy Regulatory Commission to assert exclusive jurisdiction over state programs that pay homeowners for solar power they generate and put on the grid has spurred the latest tug of war between state and federal electricity authority. A group known as the New England Ratepayers Association wants FERC to find that "behind the meter" electricity sales, currently treated as retail electricity sales and priced by state utility regulators in programs known as net metering, are wholesale power sales subject to FERC's exclusive jurisdiction. The petition also wants FERC to declare any state retail net metering laws unlawful...A declaratory order from FERC doesn't carry any force of law, so states wouldn't be forced to scuttle their net metering programs if the agency grants NERA's petition. But experts say it would give opponents of net metering a powerful piece of ammunition to launch legal challenges to net metering programs at both the state and federal level. "It would trigger a wave of proceedings at the state public utility commission level to try and change the rules," said Ari Peskoe, who directs the electricity law initiative at Harvard Law School's Environmental and Energy Law Program. "It's possible that it would trigger a wave of litigation in federal court with entities saying net metering is illegal under federal law and bringing FERC's order as a legal opinion supporting the lawsuit." Even if a state voluntarily ends its net metering program and starts pricing the sales according to PURPA, the flood of new PURPA facilities would only further drag out what's already a lengthy, highly contentious process at the state level to set rates, experts say. It could also see FERC increasingly fielding complaints that states aren't implementing PURPA properly. "FERC could have a real administrative burden on its hands with a surge in complaints," Peskoe said.

  • Solar industry sees a threat to one of its top selling points

    June 8, 2020

    The solar industry, struggling amid the coronavirus pandemic, faces another threat at the Federal Energy Regulatory Commission: a petition that would effectively end a key incentive for installing rooftop solar called net metering. The New England Ratepayers Association on April 14 asked FERC to declare that the agency has jurisdiction over net metering, which requires utilities to buy excess power from customers who generate electricity with their own energy resources, such as rooftop solar panels...The question at the heart of NERA’s petition is whether sales from rooftop solar should be deemed retail sales, which are regulated by states, or wholesale sales, which fall under FERC’s jurisdiction. In decisions issued in 2001 and 2009, FERC has said that net metered electricity sales fall under state authority. NERA, however, contends FERC’s analysis is flawed. If FERC asserts authority over net metered sales, the practice would be effectively killed, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. The solar industry finds NERA’s petition alarming...Harvard Law School’s Peskoe contends that NERA’s petition is based on flawed legal analysis. Also, unlike typical petitions at FERC, NERA failed to say how the group is harmed by net metering or describe exactly what the group is. FERC could dismiss the petition on those grounds alone, Peskoe said.

  • Edison Electric Institute Declines to Support Petition Seeking Federal Overturn of Net Metering

    June 5, 2020

    The Edison Electric Institute has battled against solar net-metering policies for years. But on Thursday the primary industry group for U.S. investor-owned utilities confirmed that it is staying neutral on a controversial petition asking federal regulators to declare net metering illegal. On June 15, the Federal Energy Regulatory Commission will close comments on a petition filed by the New Hampshire-based New England Ratepayers Association asking FERC to adopt a legal argument that would undermine net-metering programs in more than 41 states...If FERC approves the petition, it “could create chaos at the state level,” Ari Peskoe, director of the Electricity Law Initiative at Harvard University, said in a Thursday interview. An approval could open up state programs to challenges from utilities in regulatory proceedings and independent lawsuits in federal court, Peskoe said...The National Association of Regulatory Utility Commissioners has not yet filed comments in the FERC proceeding, but Mississippi PSC Commissioner and NARUC President Brandon Presley objected to FERC’s June 15 deadline in a May 5 statement, saying it would “divert precious time, attention and resources to fighting NERA's request in a tightly compressed schedule.”  FERC declined NARUC’s request to extend the comment deadline, but it has no hard deadline to make a decision on NERA’s petition, Harvard’s Peskoe said. “We’ll just be waiting to see what happens.”

  • PJM, retail suppliers scrambling to appease MOPR concerns amid state threats to exit capacity market

    May 21, 2020

    PJM Interconnection and Calpine have indicated that they are willing to come to the table and negotiate alternative long-term solutions to the minimum offer price rule (MOPR) approved by federal regulators in December. The tentative signals come as New Jersey and Maryland ramp up their efforts to explore potential alternatives to the capacity market, frustrated by the order's anticipated consequences on the offshore wind market in the near term, as well as long-term costs. While the grid operator's independent market monitor has found costs will not rise in the next auction, recent analysis from energy consulting group Grid Strategies found the policy could cost customers in the market billions of dollars over the next decade. Competitive power suppliers "finally got what they wanted and apparently now recognize what was obvious to the MOPR opponents - discarding state policies is not a durable solution," Ari Peskoe, Director of Harvard University's Electricity Law Initiative told Utility Dive in an email. "If one state's utilities exit, all that the merchants gain from the MOPR expansion disappears." ...PJM generally would make such a decision through its stakeholder process, as it has indicated, said Peskoe, but through Section 205 of the Federal Power Act the grid operator could also file a capacity auction proposal. "Although FERC rejected PJM's April 2018 filing as unjust and unreasonable in its June 2018 order, there is a long history of FERC deference to RTO market design proposals," he said.

  • Renewable advocates suspicious of FERC’s relationship with anti-net metering group

    May 4, 2020

    On April 14, a group called the New England Ratepayers Association (NERA) filed a petition with the Federal Energy Regulatory Commission (FERC) calling on the Commission to supersede all state-level net metering program and make the mechanism federally-controlled. In response, The Center for Biological Diversity has filed a Freedom of Information Act (FOIA) request seeking records of FERC’s communications with NERA and the historically anti-net metering attorney representing the group...NERA is represented by Steptoe and Johnson LLP, with one of the attorneys listed on the petition being David B. Raskin. Raskin has been calling for FERC control of net metering for the better part of the last decade, previously on behalf of the Edison Electric Institute...It did not take long for this filing, as well as NERA’s ties to Raskin and the Edison Institute, to draw the attention of renewable energy advocates. Leading the charge came Ari Peskoe, director of the Electricity Law Initiative at Harvard University, who took to twitter to put the filing on blast. In the thread, Peskoe calls the timing of the filing “outrageous,” asserts that no new case developments have been made since the last time that Raskin raised this issue and accuses the Edison Electrical institute of attempting to “Hide behind this group calling itself a ‘Ratepayers Association’ that somehow has the same lawyers as EEI and major utilities.” ...The Center then goes on to cite the flagship argument against NERA’s petition, the same one raised by Peskoe, that if the measure were to be approved, the deployment of rooftop and community solar could be threatened. The Center also raises similar concerns to Peskoe, putting forth that the petition is founded upon “Thoroughly debunked industry talking points that solar customers are unfairly subsidized, ignoring both the enormous subsidies given to the fossil fuel industry and distributed clean energy’s power to curb pollution, improve the grid and otherwise advance the vital clean energy transition.”

  • Secretive group’s petition to FERC could ‘end net metering as we know it,’ lawyers say

    April 21, 2020

    A recent filing submitted to the Federal Energy Regulatory Commission could "end net metering as we know it," according to legal experts. The petition from the New England Ratepayers Association (NERA) asks FERC to "declare that there is exclusive federal jurisdiction over wholesale energy sales from generation sources located on the customer side of the retail meter." In other words, NERA makes the case that any behind-the-meter, or customer-sited, energy generation is a wholesale sale, subject to FERC jurisdiction. The group's points echo some of the issues raised by utilities and their trade groups, which have long argued that forcing utilities to pay rooftop solar owners for the excess power they produce is unfair to ratepayers who don't site solar. But the fact that the issue is being raised by a non-profit regional ratepayers group is raising eyebrows for some...The technical feasibility of such a shift is not clear, Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. told Utility Dive. Most rooftop solar would likely fall under the jurisdiction of PURPA as a qualifying facility, and therefore be priced based on the avoided cost of generating that power, argued the petition... "The practical implication would have to be that you'd have to add this giant cost on all these presumably existing and new rooftop solar facilities that they would need the second meter," said Peskoe. "I don't know how that would work."

  • ‘Mysterious’ group pushes FERC to end net metering

    April 20, 2020

    A Massachusetts-based nonprofit that took down a biomass subsidy in New Hampshire last year has set its sights on upending net metering nationwide. The New England Ratepayers Association filed a petition last week asking the Federal Energy Regulatory Commission to effectively curtail net metering, a practice that requires utilities to pay rooftop solar owners for the extra electricity they generate and send to the grid. The petition calls on FERC to place the widespread practice under federal jurisdiction. The move away from state regulation could significantly cut the rates paid to rooftop solar owners and other on-site power generators. But the group says placing net metering under federal authority would lower electricity costs for ratepayers...Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, immediately slammed the petition in a series of tweets. "This is a petition filed by this mysterious group calling themselves New England Ratepayers Association," he told E&E News. "Nobody knows who funds them, and they cite no new case law. There is absolutely no reason to raise this issue now." ...While FERC has always considered energy procured by utilities through net metering a retail sale that falls under state authority, NERA argues that net-metering transactions constitute "sales for resale," which it says should be treated as a wholesale power market transaction that falls under FERC jurisdiction. Peskoe dismissed this idea, noting that FERC only has jurisdiction over wholesale sales in interstate commerce. "An energy transfer effectuated through a state-regulated net-metering tariff is neither a wholesale sale nor a sale in interstate commerce," he said.

  • Solar Net Metering Under Threat as Shadowy Group Demands Intervention in State Policies

    April 20, 2020

    Solar net metering, the backbone of the U.S. rooftop solar market for the past two decades, may be facing its most important legal challenge in years — and it's coming at a time when the industry is already reeling from the impact of the coronavirus pandemic. A nonprofit group that’s spent years fighting clean energy legislation in New England is pressing federal regulators to approve a legal argument that could lay the groundwork for challenges to the solar net metering policies now in place in 41 states. Last week, the New England Ratepayers Association (NERA) filed a petition with the Federal Energy Regulatory Commission, asking it to declare "exclusive federal jurisdiction over wholesale energy sales from generation sources located on the customer side of the retail meter.” In other words, NERA is asking FERC to assert control over all state net metering programs, which pay customers for the energy they don't consume on-site, but feed back to the power grid...FERC has addressed net energy metering before in decisions in 2001 and in 2009, Ari Peskoe said. In both cases, “FERC’s position has been that any time there’s a sale for resale, it’s going to be FERC’s jurisdiction,” he said — a view that supports NERA’s argument. At the same time, FERC’s 2001 and 2009 decisions “basically said, when a ratepayer transfers energy to its utility through a net metering arrangement, that’s not a wholesale sale; that's a matter of accounting […] subject to state oversight,” Peskoe said. NERA’s petition declares that “[t]his reasoning was never correct,” and asks FERC to overturn it. As for whether net-metered solar is an interstate sale, “there’s no compelling case law that says it is,” and “lots of compelling argument that it is not,” Peskoe said.

  • Southwest Generation purchase of Xcel gas plant to raise JPMorgan affiliation question again at FERC

    April 10, 2020

    A subsidiary of a JPMorgan-linked investment fund is purchasing Xcel Energy's 720 MW gas-fired power plant, which will again raise questions for federal regulators about the investment bank's legal affiliation to the fund. Southwest Generation, the buyer of the Mankato Energy Center (MEC), is owned by Infrastructure Investments Fund (IIF), a $12 billion investment fund advised and managed by JPMorgan Chase & Co. The Federal Energy Regulatory Commission declined to rule on whether JPMorgan is legally affiliated with IIF in its April approval of the fund's acquisition of El Paso Electric, but Tyson Slocum, director of Public Citizen's Energy Program, says he plans to raise the issue again...The argument that FERC's failure to define the relationship may open a loophole for market manipulation is "plausible," Ari Peskoe, director of the Electricity Law Initiative at Harvard told Utility Dive in an email, though he's not sure how real and present that threat may be. "The concern is that since utilities typically recover costs of power [purchases] from captive ratepayers, the parent company could profit by having an affiliate sign un-competitive above-market PPAs with the utility," he said. "A utility could potentially enter into uncompetitive contracts [with] affiliates and would not have to follow [FERC's] rules since FERC wouldn't know that they are affiliates." But at the same time, FERC has specific rules in place around this sort of market abuse, he added. In 2016, for example, Ohio utilities filed for a waiver of these restrictions asking FERC to subsidize the utilities' merchant generation, which FERC rejected, Peskoe pointed out.

  • Morning Energy

    April 8, 2020

    Breaking Up Is Hard To Do: Utilities interested in ditching the power markets may find it harder than they would like, according to a new memo by utility attorney Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. FERC's order last year to PJM Interconnection setting a minimum offer price in its capacity auction, an effort to nullify state subsidies to renewable and nuclear generators that Peskoe opposed, triggered several statewide efforts to consider leaving either PJM or ISO-New England. Peskoe examines recent cases and finds that FERC may have the ability to review — and reject — a utility request to leave its market. "I conclude that withdrawal is legally plausible, but FERC could block withdrawal, and it might be more inclined to do so in response to a protest filed by an ISO-NE transmission owner," he writes.

  • Texas grid fight may echo nationally

    March 13, 2020

    Texas officials prevailed in the first round of a legal fight that carries implications for the national grid, but federal courts will have more chances to shape the outlook of competitive transmission in the U.S. The Texas saga involves a state law passed last year as S.B. 1938, which essentially gives incumbent utilities first dibs on building new high-voltage power lines that serve the state. ... "The future of competitive transmission is on the line," said Ari Peskoe, director of Harvard Law School's Electricity Law Initiative. "The question will be ... if these laws are upheld by these two federal appeals courts, are other states going to follow suit?"

  • FERC draws new battle lines in the U.S. electricity wars

    March 5, 2020

    In the past three months, regulators appointed by President Donald Trump have disrupted ambitious plans to combat climate change in electric grids serving 85 million people in the U.S., from Chicago to New York to Washington. ...“They’re taking these markets in a totally different direction than states want to go,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “It could backfire quickly.”

  • Trump’s Best Shot at Saving Coal Is an Obscure Power Market Rule

    March 3, 2020

    In the past three months, regulators appointed by President Donald Trump have disrupted ambitious plans to combat climate change in electric grids serving 85 million people in the U.S., from Chicago to New York to Washington. It was easy: an agency just rewrote some obscure pricing rules. With that, the Federal Energy Regulatory Commission cranked up to a new boil the simmering debate over whether the U.S. should get its electricity from fossil fuels or sources that don’t spew carbon. The commission’s Republican majority decided the playing field should be leveled so no one generator gets special treatment. “They’re taking these markets in a totally different direction than states want to go,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “It could backfire quickly.” The rulings set up a battle over whether left-leaning states including New York, New Jersey and Illinois can effectively promote clean power. Wind and solar have long depended on state quotas and subsidies for growth, and those incentives could now be hobbled.

  • FERC deals blow to New York renewable, storage projects, adding hurdles to NYISO capacity market

    February 24, 2020

    The Federal Energy Regulatory Commission approved four separate orders to narrow exemptions of buyer-side mitigation (BSM) market rules in the New York Independent System Operator's (NYISO) capacity zones during Thursday's public meeting, which critics say will stifle the competitiveness of clean energy resources. The decisions would make it more difficult for new clean energy projects expected in the state to clear NYISO's capacity auction. Clean energy advocates say bidding into NYISO's capacity market is critical to the financial viability of projects like offshore wind and energy storage...Critics of the BSM have accused such subsidy-reducing actions of enabling fossil fuel plants to remain open despite plans for retirements. Within ISO-NE, the 448 MW Merrimack coal plant recently got an extended lease on life by clearing the capacity auction without trading, to get replaced by cleaner resources, in the substitution auction, also referred to as the CASPR secondary auction. "I think the fact that this old coal plant that barely operates is still in the market and didn't come out through the substitution auction highlights a deficiency in how the system is operating right now," Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School told Utility Dive regarding the ISO-NE auction results.

  • FERC eyes renewables in New York

    February 20, 2020

    If FERC does reverse itself and apply mitigation rules more broadly, it will have hampered clean energy participation in the three markets targeted by the Department of Energy’s 2017 grid resilience proposal, which would have provided ratepayer funded contracts to coal, nuclear and oil plants in those regions. FERC unanimously rejected that DOE plan in early 2018, but critics say the MOPR orders will do more to support fossil fuel plants because the price floors are more likely to withstand legal challenges than the poorly-designed DOE plan. States may not stand idly by. New York utility regulators already have a proceeding open that could pull them from the NYISO’s capacity market, putting the state in charge of long-term generation planning once again. “The more aggressive FERC Is on these issues, the more likely it will lead to the demise of the New York ISO capacity auction,” said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program.

  • Legal assaults await FERC fossil fuel lifeline

    February 14, 2020

    Settle in for a drawn-out legal battle over the Federal Energy Regulatory Commission's new plan for energy resource participation in the biggest electricity market in the country. Legal experts say potential lawsuits targeting FERC's recent "minimum offer price rule," or MOPR, for the PJM Interconnection capacity market will take awhile to get off the ground. FERC's commissioners have yet to say whether they will agree to a rehearing requested by dozens of state officials, environmental groups and some trade associations, and the agency could use tolling orders to further delay the process. But even if the timing of possible litigation is unclear, the legal arguments over the December order are already coming into focus...Under the new rule, for example, a nuclear power plant that receives state subsidies for reducing carbon emissions could be kicked out of PJM's capacity market. The subsidies are protected under state law and the courts, so ratepayers will continue to pay for them, but PJM would have to pretend those resources — in this example, nuclear power — do not exist, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "Ratepayers end up overpaying because PJM will be procuring enough resources for the entire region," he said. "But at the same time, ratepayers will also be paying these resources outside the market through these state programs."

  • FERC’s backlog of rehearing requests and the legal ‘purgatory’ of opposition to the PJM MOPR order

    January 29, 2020

    Clean energy advocates have issued numerous warnings that a controversial December decision by federal regulators to raise the floor price for state-subsidized resources bidding in the PJM Interconnection's capacity market would harm the ability of new clean energy technologies to enter the market. But options to challenge the order from the Federal Energy Regulatory Commission in court are extremely limited. Stakeholders from the grid operator to confectioner Hershey have filed requests with FERC for a rehearing of the Dec. 19 order, but language in the Federal Power Act shields regulators from litigation when they delay responses to such requests...However, it's become a norm for FERC to delay, or toll, rehearing requests received on its orders, according to several attorneys... "There's been a lot of grumbling about FERC's practices of sitting on these rehearing requests," Ari Peskoe, director of Harvard University's Electricity Law Initiative, told Utility Dive.

  • Coal export battle hinges on commerce clause

    January 23, 2020

    A pair of energy-producing states may face ideological challenges in their quest for a high court review of Washington state's blockade against the last major coal export project on the West Coast. Wyoming and Montana argued in a Supreme Court petition yesterday that Washington regulators violated constitutional protections on interstate commerce when they denied a Clean Water Act permit for the Millennium Bulk Terminals project in Longview, Wash. ... Justices for the Supreme Court will be more interested in evaluating Washington's denial of the terminal's Clean Water Act permit, rather than any alleged intent to further control global greenhouse gas emissions, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. He said the states' claims of discrimination are weak because they compare support for different products: apples versus coal.

  • Gas, coal generators defend FERC’s PJM capacity market order

    January 17, 2020

    FERC’s December order to exclude wind, solar and nuclear power from part of its largest electricity market is drawing support from several largely fossil fuel power producers that argue the decision won’t hobble the growth of renewable energy even as it boosts coal and gas plants. FERC last month voted to set a price floor that will effectively exclude renewable and nuclear sources that receive state support from the PJM capacity market. Environmentalists lambasted the order as an attack on clean energy and a bailout for fossil fuels, but its supporters say the effects on wind and solar — which were only about 1 percent of the capacity cleared in PJM’s last auction — will be minimal...Regardless of whether FERC grants a rehearing, renewable energy companies and environmentalists are likely to challenge the order in court, arguing it violates state jurisdiction over power plant siting and contending that FERC acted in an “arbitrary and capricious” manner because it did not consider the potential costs to consumers when crafting the order. “There are lots of opportunities for 'arbitrary and capricious' challenges,” said Ari Peskoe, director of the Harvard Electricity Law Initiative, including FERC’s broad definition of which subsidies will qualify for the price floor, and why FERC did not include an option for individual plants to opt out of the capacity market. “Rehearing request deadline is next Tuesday. We’ll have a better picture of the legal arguments then.”

  • Dominion selects Virginia offshore wind turbine supplier amid PJM capacity market uncertainty

    January 8, 2020

    Dominion Energy said Tuesday it selected Siemens Gamesa to supply offshore wind turbines for its 2,600-MW installation off the coast of Virginia, but the project's economics could be challenged if the wind farm is excluded from PJM Interconnection's capacity market. Dominion described the decision made through a competitive solicitation as a "significant milestone" in what is currently the largest proposed offshore wind project in the US. The wind farm will be constructed 27 miles off the coast of Virginia Beach and is scheduled to be completed by 2026, according to a statement.... "Most PJM states require utilities to meet renewable energy targets or support specific clean energy resources, such as nuclear plants or yet-to-be-constructed offshore wind farms," Ari Peskoe, Director of the Electricity Law Initiative at Harvard's Environmental and Energy Law Program, said in a blog post Tuesday. "Some of these programs could become more expensive, as clean energy resources that are unable to earn PJM capacity revenue seek additional ratepayer support," Peskoe said.

  • Energy Regulator’s Order Could Boost Coal Over Renewables, Raising Costs for Consumers

    December 20, 2019

    Federal energy regulators issued an order Thursday that likely will tilt the market to favor coal and natural gas power plants in the nation's largest power grid region, stretching from New Jersey to Illinois. Critics say that it effectively creates a new subsidy to prop up uneconomical fossil fuel plants and that it will hurt renewable energy growth and, ultimately, consumers. The new rules, approved by the Federal Energy Regulatory Commission, are designed to counteract state subsidies that support the growth of renewable energy and use of nuclear power. The rules involve what are known as "capacity markets," where power plants bid to provide electricity to the grid. The change would require higher minimum bids for power plants that receive such subsidies, giving fossil fuel plants an advantage...Ultimately, consumers will pay several times over, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "The major loser here is consumers," he said.

  • A Federal Renewable Energy Commission? Democrats flirt with overhaul of FERC

    December 17, 2019

    Democratic presidential candidates are promising to fight climate change, but whether they succeed will hinge on their ability to shape an obscure federal agency that has overseen an explosion of fossil fuel infrastructure over the last few decades. The FERC, an independent regulator of pipelines and power markets, derives its authority from decades-old laws that largely predate worries about climate change and were focused primarily on ensuring that energy supplies remain cheap and reliable. But that mandate may interfere with some of the more aggressive climate plans Democrats are contemplating, and candidates are facing pressure to overhaul the agency if elected... “I could imagine doing [climate legislation] in such a way where you don’t need to reform FERC,” said Ari Peskoe, Director of the Harvard Electricity Law Initiative. “If there was just a national [renewable energy standard], you would just need someone to make sure utilities are complying. That could be FERC, but it could also be [the Department of Energy] or EPA as well.”

  • Massachusetts AG Healey stokes grassroots effort for clean energy market rules in ISO-NE

    December 16, 2019

    In recent years, the Northeast region has discussed matching state-driven climate ambitions with ISO-NE's market design. States are working to deploy greater amounts of renewable resources, and a group of U.S. senators from New England wrote ISO-NE about the adoption of renewable energy in the region on Nov. 18. Their letter came after many renewables advocates and states in the region were dismayed to see federal regulators allow a fuel capacity rule go into effect in ISO-NE... "It is not easy to engage on these issues, they're very technical," Ari Peskoe, director of Harvard University's Electricity Law Initiative, told Utility Dive. "A first step is just making people aware of the existence of this organization."

  • FERC’s proposed PURPA changes spark fierce debate over rates for renewables

    December 5, 2019

    U.S. power industry stakeholders were sharply divided on the Federal Energy Regulatory Commission's proposal to relax its rules implementing the Public Utility Regulatory Policies Act, a more than 40-year-old law that requires electric utilities to buy power from cogeneration and small renewable energy plants. ... Meanwhile, comments submitted by Harvard University's Electricity Law Initiative argued that the NOPR "pays lip service" to PURPA's requirement that the commission issue rules it "determines necessary to encourage" the development of QFs. "The commission suggests that in response to industry changes it may divorce the statute from its plain meaning and issue rules that will restrain QF growth," Harvard said. "But Congress's mandate to the commission is not contingent on industry conditions and does not expire."

  • Bob Murray to Trump: Fix ‘feckless FERC’

    July 30, 2019

    Coal executive Bob Murray is raising money for President Trump's reelection — and he may want a few things in return. Murray, an unabashed promoter of coal, said during an interview he again offered the president a list of policy suggestions and talking points to revive the dying coal industry at a private fundraiser Wednesday evening. Among his demands, Murray repeatedly called on the president to fix the Federal Energy Regulatory Commission...Told of Murray's comments, Ari Peskoe, director of Harvard Law School's Electricity Law Initiative, said, "If this is all Bob Murray's got, then he's got nothing." The 10th Amendment of the U.S. Constitution says that "the federal government can't commandeer state officials," Peskoe said. "So Congress could not outright demand that PUCs conduct proceedings that will result in payments to coal plants," nor could FERC as he reads the Federal Power Act.

  • N.H. Supreme Court agrees with state’s rejection of Northern Pass transmission line

    July 29, 2019

    It looks like Northern Pass is really dead this time: The New Hampshire Supreme Court on Friday upheld the project’s rejection last year by the state Site Evaluation Committee. “We have reviewed the record and conclude that the Subcommittee’s findings are supported by competent evidence and are not erroneous as a matter of law,” Associate Justice Anna Barbara Hantz Marconi wrote in the unanimous decision. The ruling leaves no obvious way forward for the 192-mile transmission line carrying almost a Seabrook Station’s worth of electricity down from Quebec hydropower plants, ending almost a decade of often-contentious debate. “Really hard to beat the state in court on a siting denial,” wrote Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in response to the ruling.

  • N.H. Supreme Court agrees with state’s rejection of Northern Pass transmission line

    July 23, 2019

    It looks like Northern Pass is really dead this time: The New Hampshire Supreme Court on Friday upheld the project’s rejection last year by the state Site Evaluation Committee. “We have reviewed the record and conclude that the Subcommittee’s findings are supported by competent evidence and are not erroneous as a matter of law,” Associate Justice Anna Barbara Hantz Marconi wrote in the unanimous decision. The ruling leaves no obvious way forward for the 192-mile transmission line carrying almost a Seabrook Station’s worth of electricity down from Quebec hydropower plants, ending almost a decade of often-contentious debate. ... “Really hard to beat the state in court on a siting denial,” wrote Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in response to the ruling.

  • Texas fight could ripple across U.S. grid

    July 16, 2019

    The future of the U.S. power grid may ride in part on an obscure tussle over transmission in the Lone Star State. Front and center is a new law in Texas — enacted as S.B. 1938 — that gives incumbent utilities first dibs on building new transmission lines. Critics say the measure effectively cuts out new entrants, clashes with the state's history of competition and could raise the costs of transmission projects that factor into consumers' power bills. Proponents counter that the language preserves Texas' approach to electricity and should help ensure reliability and affordability..."As competitive transmission expands, it's certainly plausible that other utilities will go to their state legislatures and ask for this kind of protection," said Ari Peskoe, director of Harvard Law School's Electricity Law Initiative

  • Ohio’s Nuclear Bailout Plan Balloons to Embrace Coal (while Killing Renewable Energy Rules)

    June 4, 2019

    While other states are embracing renewable energy, Ohio is heading in the opposite direction. A bill passed this week by the Ohio House would subsidize nuclear and coal power while cutting state support for renewable energy and energy efficiency, with the utilities' customers footing the bill.. The Ohio bill begins to make sense only as a bailout for one company as opposed to comprehensive energy plan, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. That company is FirstEnergy Solutions, the owner of the state's only two nuclear plants and the leading architect of the bill. It's a subsidiary of Akron-based FirstEnergy that FirstEnergy is in the process of spinning off..."FirstEnergy has really been a failure in the generation business, and so it's been looking for a bailout," Peskoe said.

  • No rules of engagement

    May 28, 2019

    The United States' largest interstate electricity market will soon hold a multibillion-dollar auction to determine which power plants will supply it in the years to come. But more than six months after FERC tossed out the rules PJM had planned for the capacity market over the fairness of nuclear subsidies, federal regulators have yet to approve a rewrite — leaving some power players on edge ... Others are less concerned FERC will alter the results of the auction even if it proceeds under the invalidated rules. Ari Peskoe, director of the Harvard Electricity Law Initiative, said the commission typically avoids issuing refunds in wholesale power markets and is unlikely to order the auction be re-run. The most probable conclusion, he said, is that PJM runs its auction under invalidated rules this year, and then FERC approves new rules PJM proposed last year ahead of next year's auction.