Ari Peskoe

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."

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."

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.”

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."

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, 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.

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.

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 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?"

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.”

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.