Ari Peskoe

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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