Controversy over renewable energy claims

If an electric utility generates power from renewable resources and sells renewable energy certificates representing the renewable attributes of that energy, can it still call the underlying power "renewable"? No, according to the U.S. Federal Trade Commission.

Solar panels in the Utah desert.

While this question may seem metaphysical, it arises from the structure of most U.S. renewable energy markets.  Most states have adopted renewable portfolio standards, which require utilities and competitive electricity suppliers to source some of their power from renewable resources.  In most cases, utilities and suppliers can satisfy this requirement by using renewable energy certificates or credits known as RECs.  While each state's program differs, these RECs typically represent the renewable attributes of electric energy -- the right to claim that energy is renewable -- but are distinct from that underlying energy.  As a result, a renewable generator can sell RECs to one buyer and the underlying energy to another.

Vermont utility Green Mountain Power Corporation recently found itself at the center of controversy over its claims regarding renewable energy.  The utility owns and is involved with a variety of renewable energy generation projects in Vermont, including wind and solar projects.  It sells energy produced from these projects to Vermont customers, while simultaneously selling some of the RECs generated by these sources to out of state utilities.

In 2014, concerns over "double counting" of renewable energy attributes led Connecticut to ban the use of RECs from renewable generation that also is counted toward another state’s renewable goals for meeting Connecticut's requirements, and REC marketer NextEra Energy to notify New England market participants that it would no longer buy Vermont RECs.

On September 15, 2014, a group of petitioners asked the Federal Trade Commission to investigate Vermont utility Green Mountain Power Corporation's claims that it is providing its customers with electricity from renewable sources such as commercial wind and solar projects, given its separate sale of the RECs to out of state utilities.  The Federal Trade Commission regulates claims about the environmental impacts of commerce under Section 5 of the Federal Trade Commission Act, including claims regarding the production, sale, and use of renewable energy.  In their complaint, the petitioners claimed that "Vermont customers are being misled into thinking that they are buying 'renewable energy,' when in fact what they are getting is 'null' electricity consisting of a mix of fossil fuel, nuclear, gas and other 'brown' sources of electricity from the regional grid."

The FTC responded to this petition in February 2015 by issuing a letter to Green Mountain Power's counsel expressing concern that the utility might have created confusion for its customers about the renewable attributes of the power they purchased by not “clearly and consistently communicating” that it sells RECs for most of its renewable energy-generating facilities to entities outside Vermont.  In the letter, the FTC said that it had not found that any Green Mountain Power statements violated the Federal Trade Commission Act.  However, the Commission urged Green Mountain Power in the future to prevent any confusion by clearly communicating the implications of its REC sales for Vermont customers and REC purchasers.

The FTC letter represents the latest salvo in efforts to regulate claims regarding the production, sale, and use of renewable energy.  To help marketers avoid making deceptive environmental claims, for over 20 years the FTC has issued "Green Guides" providing its administrative interpretation of the law. The Green Guides outline general principles that apply to all environmental marketing claims and provide guidance regarding many specific environmental benefit claims, including renewable energy claims.  The Green Guides, as well as the recent FTC letter, illustrate the importance of caution in making claims about renewable energy in business activities.