Category Archives: Energy Policy

Last week, the 9th Circuit Court of Appeals affirmed a District Court ruling requiring the Department of Energy to publish in the Federal Register four rules finalized by the Obama administration, but not previously published.

The Trump administration DOE tried to take advantage of DOE’s “error-correction rule”, which gives DOE time to fix mistakes in its rules before they are published in the Federal Register.

The problem with DOE’s argument is that the error-correction rule is clear that error correction is a ministerial task. … More

ClimateWire (subscription required) reported today that Russia plans to join the Paris Agreement.  Apparently, Russia is doing so because it sees a global move to a low-carbon economy and it doesn’t want to be left behind.

So, if Putin manipulated the 2016 elections to make Donald Trump president, did he do so to make it easier for Russia to get a leg up on the US in building the low-carbon economy of the future?… More

Here’s my take on the Affordable Clean Energy Plan.

Who cares?

On the merits, it does almost nothing.  It requires only that states impose heat rate improvement requirements on coal-fired power plants.  It’s not going to meaningfully lower emissions.  Administrator Wheeler has trumpeted that emissions will be 35% lower in 2030 than in 2005, but the ACE rules contribute almost nothing to that result.… More

The Massachusetts Department of Energy Resources has released its Clean Peak Standard Straw Proposal, providing its thinking on the implementation of that part of An Act to Advance Clean Energy, from 2018.  As a reminder, the basic idea is that a “Qualified RPS Resource,” installed after January 1, 2019, may obtain “clean peak certificates” for energy generated during seasonal peaks.  Existing Qualified RPS Resources may obtain CPCs if they are paired with battery storage installed after January 1,… More

On Friday, Connecticut announced that it had reached agreement with Dominion, Eversource, and United Illuminating to keep the Millstone nuclear plant operating for 10 more years.  Not coincidentally, on the same day, the six New England Governors announced their “Commitment to Regional Cooperation on Energy Issues.”  An important element of that commitment is to work with ISO New England:

to evaluate market-based mechanisms that value the contribution that existing nuclear generation resources make to regional energy security and winter reliability.… More

Governor Baker addressed a room full of offshore wind stakeholders at “The Future of Offshore Wind” Forum hosted by the Environmental League of Massachusetts on Wednesday morning.  He applauded the developers, environmental groups, legislators and local students for the progress made in recent years which has led to a dramatic decrease in the price of offshore wind energy to ratepayers in recent years.

Thanks to a bill Governor Baker signed into law in 2016,… More

Last week, a federal judge once more rejected the Environmental Assessment for the expansion of the Spring Creek Mine in Montana.  The case does not really break any new ground, but it does add to the growing number of cases in which courts have rejected federal action approving a variety of large facilities related to energy production in one way or another.  The crux of this case was the failure of the EA to consider downstream,… More

Yesterday, Ed Markey and Alexandria Ocasio-Cortez released a proposed congressional resolution providing a framework for the so-called Green New Deal.  I am pleased to note that it would not exclude use of nuclear power or large-scale hydropower.  Neither would it preclude use of market-based approaches towards regulating carbon.  Of course, it also doesn’t advocate for putting a price on carbon.

I realize that this is simply a resolution and not proposed legislation. … More

A few weeks ago, a coalition of 626 groups sent a letter to Congress, setting forth some principles concerning what should and should not be part of a Green New Deal.  Among the policies that apparently should not be part of a Green New Deal are nuclear power, large-scale hydropower and –wait for it – any use of market-based mechanisms. … More

Boston’s Green Ribbon Commission has just released Carbon Free Boston, which outlines a pathway to a carbon-free city by 2050.  It’s a thoughtful and careful report.  My immediate reaction was two-fold.  Of course we have to do all this and of course this will be nearly impossible.

The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking:

The report’s analysis makes clear the great magnitude of the change needed to achieve carbon neutrality.… More

Last week, the Massachusetts Department of Energy Resources released its Comprehensive Energy Plan. It’s a generally solid piece of work, even if it doesn’t say anything hugely surprising. Its various policy recommendations can be summarized fairly easily: electrify and conserve.

The first recommendation is nicely illustrated by this pie chart from the CEP.  In 2016, only 17% of Massachusetts’ energy demand of 1,074 trillion BTUs was from the electric sector.… More

Members of the New York City Council have introduced a proposal to impose mandatory building energy efficiency standards.  The standards, which vary by building type and use, would apply to buildings greater than 25,000 square feet, though rent-regulated buildings would be exempt.  

The real estate industry is a powerful force in New York City and I believe that our current President may have some views on this legislation. … More

November 26th was a big day for solar energy in Massachusetts.  As promised, the Massachusetts Department of Energy Resources (“DOER”) opened the application portal for the long-anticipated SMART Program.  Applications received between November 26th and November 30th will be considered to have been received at the same time.  Starting on December 1st, applications will be reviewed on a first come, first served, basis.

Also on November 26th,… More

The Union of Concerned Scientists just released a report, The Nuclear Power Dilemma.  As Ken Kimmell, UCS’s President, said in a blog about the report, it:

calls for proactive policy to preserve nuclear power from existing plants that are operating safely but are at risk of premature closures for economic reasons or to ensure that lost nuclear capacity is replaced with carbon-free sources.… More

As Carol Holahan discussed, the 7th Circuit last month affirmed the Illinois zero emission credit program.  Now the 2nd Circuit has weighed in, agreeing with the 7th Circuit and affirming the similar New York State ZEC program.  Whatever one’s views on the merits, it seems pretty clear at this point that state programs to encourage generation of renewable or zero-emissions energy will be upheld by the Appeals Courts,… More

On September 13, 2018, the Court of Appeals for the Seventh Circuit affirmed the trial court’s dismissal of claims that the zero-emission credit (ZEC) program enacted by the Illinois legislature in 2016 violated the U.S. Constitution’s dormant Commerce Clause and was preempted by the Federal Power Act. The Court took the unusual step of requesting an amicus brief from the Federal Energy Regulatory Commission (FERC).  FERC and the Department of Justice jointly filed a brief in response,… More

Earlier this week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement.  I don’t doubt that the CLC analysis is right.  If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.… More

EPA has finally released its proposed replacement for the Clean Power Plan, dubbed the Affordable Clean Energy Rule.  More affordable than clean, I’d say.

What’s really telling is that EPA’s own analysis shows that the CPP would have delivered significantly more benefits than ACE.  And that goes for both direct benefits in GHG emissions reductions and indirect benefits related to reductions in traditional criteria pollutants.… More

On July 31, the Massachusetts Legislature passed H.4857, An Act to Advance Clean Energy.” The bill, released late on July 30, was the result of a compromise between the Senate’s broad, omnibus bill passed in early June and the House’s more modest proposals, passed piecemeal in mid-July. Among other things, the bill:

• increases opportunities for energy efficiency by expanding the definition of qualifying programs;…

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On Monday, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies.  The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.  

Why did he dismiss the case?  Simple.  The courts are not the right forum in which to address the problems of climate change. … More

In January, FERC rejected Secretary Perry’s proposal to compensate generators who maintain a 90-day supply of fuel on-site – a proposal widely seen as an attempt to prop up struggling coal and nuclear generators.  Not willing to take no for an answer, the Administration has recently floated the idea of using authority under the Federal Power Act and the Defense Production Act to require power purchases from coal and nuclear plans in order to address the national security emergency apparently resulting from the threatened shutdown of these facilities.… More

Yesterday, June 7, 2018, the Massachusetts the Ways and Means Committee released S2545, “An Act to promote a clean energy future.” The far-reaching bill has the potential to provide new opportunities for renewable resources and in so doing, may also affect the competitive markets in the region. Among other things, the bill would:

• establish new interim greenhouse gas (GHG) reduction limits;
• require the development of an energy storage system target program;…

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The Evaluation Team in Massachusetts’ Section 83C Offshore Wind Generation request for proposals (“RFP”) for long term contracts for offshore wind has announced that our client Vineyard Wind was named the winning bidder in the RFP for an offshore wind project to be built off the coast of Martha’s Vineyard.  The project will include approximately 800 megawatts of offshore wind energy generation as well as a generator lead line connection. … More

Last week, FERC rejected arguments that the Environmental Assessment for the New Market Project should have considered upstream and downstream climate impacts.  It also announced as policy that it would not in the future analyze:

the upstream production and downstream use[s] of natural gas [that] are not cumulative or indirect impacts of the proposed pipeline project, and consequently are outside the scope of our NEPA analysis.… More

As I’ve noted previously, the fight over the Trump Administration’s effort to change course on a number of Obama environmental initiatives is going to focus in significant part on FCC v. Fox Television Stations, in which the Supreme Court stated that agencies are free to reconsider policies so long as:

the new policy is permissible under the statute, there are good reasons for it,… More

Yesterday, FERC terminated the docket it opened in response to DOE Secretary Perry’s September proposal to compensate generators who maintain a 90-day fuel supply on-site.  The intent of the proposal was to compensate generators who provide reliability and resilience attributes to the grid.

The decision was unanimous, though there were several concurrences.  The commissioners were not persuaded that there is a reliability problem that requires immediate,… More

The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it.  The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report.  Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More

The Houston Chronicle reported yesterday that electric generation capacity from wind now exceeds that of coal in Texas.  That’s not even counting Vistra’s recent announcement that it intends to close three coal-fired plants.  

To those who might point out that wind is intermittent and it thus has lower capacity factors, the same Chronicle story reports at least one expert prediction that wind generation will exceed that of coal by 2019.… More

On October 3, 2017, the Massachusetts Department of Public Utilities (“DPU”) opened a new docket (D.P.U. 17-146) to investigate two issues: whether energy storage systems paired with net metering facilities are eligible for net metering and what should be done to clarify the rights of net metering facilities to participate in the Forward Capacity Market (“FCM”).

These issues have been percolating for years.  In fact,… More

On September 28, 2017, Secretary of Energy Rick Perry sent a letter to FERC enclosing a Notice of Proposed Rulemaking(NOPR), which Secretary Perry asserts “requires the Commission-approved organized markets to develop and implement market rules that accurately price generation resources necessary to maintain the reliability and resiliency of our Nation’s electric grid.” Both the timing and substance of the proposal have been criticized by energy industry representatives,… More

Stakeholders have been following the development of “SMART” as a successor to the SREC program in Massachusetts for more than a year.  (See our previous posts on the development process here, here, and here.)  As it stands, SMART reflects a determined effort by the Department of Energy Resources (“DOER”) to craft a program that balances multiple interests and sets a sustainable path for solar development in Massachusetts. … More

The American Council for an Energy-Efficient Economy just released its 2017 Energy Efficiency Scorecard.  After sharing the top spot with California in the 2016 Scorecard, Massachusetts is back where it belongs – alone at the top.

The ACEEE notes that Massachusetts offers “some of the most comprehensive services in the country, addressing a range of customers and building types.”  It also noted Massachusetts’ efforts to make energy more available to those with lower incomes,… More

Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of U.S. coal production.  The decision is just the latest in a series of cases making clear that courts will not approve new – or renewed – energy production that does not appropriately address the impacts of a project on climate change.… More

Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, part of the Southeast Market Pipelines Project.  If the decision stands, it is going to have a very significant impact on review and development of gas pipelines.

(Full disclosure – Foley Hoag represents NextEra,… More

Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here.  So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.

(Renewed caveat:  This firm represents,… More

Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy.  Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.”

(Caveat:  This firm represents,… More

Last week, the 2nd Circuit Court of Appeals affirmed a District Court decision rejecting a challenge to Connecticut statutes intended to encourage renewable energy development in Connecticut.  It’s a critical win, not just for Connecticut, but for many renewable energy programs in other states across the country as well.

(Important caveat.  These cases are bloody complicated and no blog could possibly summarize them without omitting important details. … More

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More

According to the American Wind Energy Association blog, installed wind capacity in the United States has reached 82,000 MW.  That puts it past the 80,000 MW of installed hydropower capacity and makes wind the largest installed renewable energy resource.  

While the overall number represents a significant milestone, some of the details are interesting as well.  Wind represents 5.5% of US generation.  Moreover,… More

In an interesting study just published in the Proceedings of the National Academy of Sciences, the authors predict that climate change will have a more significant impact on peak energy demand than had previously been understood.  They conclude that, in a business as usual case, peak demand will increase 18%, leading to a need to spend $180B (in current dollars) to meet that increased peak demand.

The authors acknowledge that their estimates are based on current infrastructure and that the development of energy storage could play a role in mitigating the need for new generation sources to meet peak demand.… More

Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!).  It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.

Here are the highlights:

• A gradually increasing carbon tax,…

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This week, the Department of Energy finalized regulations to increase energy efficiency for central air conditioners and heat pumps.  The regulations apply to products manufactured or imported into the United States beginning in 2023.  DOE estimates that, over the following 30 years, the regulations will reduce GHG emissions by 188.3 million metric tons, and will also result in similarly substantial reductions in emissions of conventional pollutants.… More

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain.  However, that does not mean that MassDEP can simply take the easy way out.  After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain,… More

Last week, DOE announced that transportation sector CO2 emissions in the US exceeded power sector CO2 emissions for the first time since 1978.  Why?  The combination of increasing vehicle miles traveled in the transportation sector and the decreasing use of coal in the power sector is certainly most of the answer.

The real question is whether this is good news or bad news.… More

Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.”  The EIA gave three reasons for the drop in CO2 emissions.  

• Mild weather. Of course, if global warming is our solution to reducing CO2 emissions, we better come up with something that works in the summer as well as the winter.…

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On Monday, the TVA announced that Watts Bar Unit 2 had successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.… More

On September 23, DOER presented a straw proposal for the next phase of Massachusetts solar incentives. DOER’s ambitious proposal for a tariff-based program reflects a thoughtful development process and a laudable goal of crafting a program that is more efficient at promoting sustained solar deployment. There is plenty to like. But, DOER has bitten off quite a mouthful by proposing a structure that departs so dramatically from the SREC approach.  … More

When RGGI was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model,… More

Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.”  EO 569 will advance climate policy in Massachusetts in a number of important ways.  It also leaves much to be accomplished by MassDEP.  Here are the highlights:

• EOEEA and MassDOT are instructed to work with other New England and Northeastern states to develop regional policies to reduce GHG emissions from the transportation sector.…

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Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategy.  It’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050.  The report highlights both the significant opportunities and potential for growth and also some of the remaining potential roadblocks.

On the plus side:

• The combination of fossil retirements and demand growth provide significant incentive for offshore wind development.…

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Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities,… More

Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018.… More

If you needed any further proof that energy law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions;… More

This week a draft of the long-awaited Massachusetts energy bill was reported out of the Joint Committee on Telecommunications, Utilities and Energy. The bill would require the Commonwealth’s distribution companies to competitively solicit long-term, fifteen- to twenty-year contracts for large-scale offshore wind and hydroelectric power. Notably absent from the bill are provisions addressing resources such as solar, onshore wind, nuclear, energy storage, and energy efficiency.

The bill seeks to jumpstart the development of offshore wind in federal lease areas by directing distribution companies to enter into contracts for 1,200 MW of offshore wind power before July 1,… More

This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or solar thermal systems.  I’m not an expert in the California Code of Regulations, so I’m not familiar with all of the potential exemptions, but the only one stated in the new ordinance is for buildings (residential or non-residential) with a “solar zone” of less than 150 contiguous square feet.… More

The Supreme Court today affirmed FERC’s Order No. 745, which required that demand response resources be treated the same as generation resources when participating in wholesale electricity markets.  I’m feeling vindicated, because the post-oral argument prognosticators said that it looked bad for FERC, but I always thought that FERC had the stronger argument.

As I noted after the D.C. Circuit struck down Order No.… More

Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020.  The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”.  The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.

While that’s the main take-away, it really is a useful report,… More

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG emissions reduction regulations that would be more comprehensive and efficient than EPA’s current industry-specific approach.  And what, you may ask, is § 115?  Even the most dedicated “airhead” has probably never worked with it.… More

So COP21 resulted in an agreement.  What’s a poor in-the-trenches lawyer to make of it?  I think it’s pretty clearly a major step forward and reflects much more substantive progress than might have been expected.  For a very helpful summary as to why the Paris Agreement was a success, check out Rob Stavins’s post.  As good as Rob’s summary is, Elizabeth Kolbert in the New Yorker (subscription required) had a slightly more concise explanation why the Paris Agreement is a good thing:

It changes the presumption that carbon emissions will continue to grow to the presumption that they must soon start coming down.… More

Earlier this month, the Judge Lucy Koh set aside the Fish & Wildlife Service’s decision to extend its programmatic permit for bald and golden eagle takes from five to 30 years.  The extension was sought by the wind industry for the obvious reason that the uncertainty attached to a five-year permit makes financing a 20- or 30-year project very difficult.  I agree with the concern and support the extension,… More

When the Regional Greenhouse Gas Initiative was first implemented, there were questions regarding how much of an impact it would actually have on GHG emissions.  I recall Ian Bowles, then Secretary of Environmental Affairs in Massachusetts, saying that, while reductions would happen, the main purpose was to provide a template and to demonstrate that an emissions trading program could be implemented successfully.

Those doubts were only heightened when a combination of cheap gas and the Great Recession were understood to have caused low allowance prices in the RGGI auction. … More

One week after the Massachusetts legislature departed for its summer recess, Governor Charlie Baker released net metering legislation to rival the Massachusetts Senate’s recent bill on August 7, 2015.

Where the Senate bill would have simply raised the net metering cap to 1600 MWs and largely retained the current net metering credit calculations, the Governor’s bill would increase the metering cap but would substantially reduce the calculation of net metering credits.… More

So the Clean Power Plan is out.  It’s difficult to be pithy about such a big, sprawling, mess, other than to say that it’s probably about as good as it could be, though that may not be enough.  Here are a few items that have caught my eye so far:

• Although the initial deadlines have been eased, the goal of 32% reduction over 2005 emissions by 2030 is a slight increase over the 30% in the draft.…

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The U.S. Department of Energy (DOE) recently released a Draft Environmental Impact Statement (DEIS) for Northern Pass Transmission, LLC’s proposed 187-mile transmission line across the United States-Canada border in New Hampshire.

If approved, the line would have the ability to deliver 1200 MW of hydroelectric power from Quebec into southern New England—a potentially tantalizing amount of power for policymakers seeking to diversify the region’s generation portfolio and lower its GHG emissions.… More