US Supreme Court stays Clean Power Plan

The Supreme Court of the United States has issued an order staying the U.S. Environmental Protection Agency's Clean Power Plan regulations limiting carbon emissions from electric power plants.  As a result, the rule's effect is frozen until legal challenges to the rule are resolved in federal court.

The Supreme Court of the United States.

EPA's final Clean Power Plan rule establishes emission guidelines for states to follow in developing plans to reduce greenhouse gas emissions from existing fossil fuel-fired electric generating units.  Developed by EPA pursuant to Clean Air Act Section 111(d), the regulation prescribes carbon reductions for states.

While state-level emissions reductions are federally prescribed, the rule places states in the role of developing their own compliance plans for how to reach the required emissions reductions.  The rule was published in the Federal Register on October 23, 2015, as Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662.  It gave states until September 6, 2016 to file a final plan, or an initial plan with a request for an extension, for EPA review.

If implemented, the EPA says the Clean Power Plan will reduce carbon emissions from power plants by 32% below 2005 levels, or about 870 million short tons.  EPA estimates the regulation could yield public health and climate benefits worth $54 billion in 2030 alone.  As states cut back on using carbon-intensive fuels such as coal and oil, EPA projects that renewable energy will grow, with utility-scale wind and solar expected to double by 2030 under the Clean Power Plan compared to 2013 levels.

But numerous lawsuits have been filed challenging the rule, along with petitions to stay or freeze its effectiveness pending judicial review.  Last month, the D.C. Circuit Court of Appeals denied petitions for stay from parties including states, utilities and trade groups such as the American Coalition for Clean Coal Electricity.

Parties then filed petitions for stay to the U.S. Supreme Court.  Under a 2012 Supreme Court precedent, Maryland v. King, a party seeking a stay must demonstrate (1) a "reasonable probability" that the Supreme Court will grant certiorari or agree to hear the case, (2) a "fair prospect" that the Court will reverse the decision below, and (3) a "likelihood that irreparable harm [will] result from the denial of a stay."  This is a relatively high burden.

Today a majority of the U.S. Supreme Court agreed to stay the Clean Power Plan rule, by order entered in the West Virginia, et al. v. EPA, et al. case and others consolidated into the West Virginia case.  In the Court's words:

The Environmental Protection Agency’s "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicant’s petition for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicant’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

The order notes that Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the request to freeze the rule's effect.  This note reveals a 5-4 decision to issue the stay, with Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas and Justice Alito in the majority as supporting the stay.

With the Clean Power Plan's effect stayed, litigation over the rule will now proceed in the U.S. Court of Appeals for the District of Columbia Circuit.  The 27 states participating in challenges to the rule are likely cheering.  Those include Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming.  Meanwhile, the 18 states who filed in support of the EPA, along with those states who have started preparing compliance plans for the regulation, now find themselves on less certain footing.  So too do electric power generators, and others interested in energy markets.  If controversy persists, whatever decision the circuit court issues is likely to be appealed to the Supreme Court.

Energy in Maine's 2016 State of the State

Maine Governor Paul LePage has released his 2016 State of the State remarks in the form of a letter to the state legislature.  Among his top priorities detailed in the letter is addressing the high cost of electricity in the manufacturing and industrial sectors.  The eight-page letter also focuses on themes including welfare reform, lowering the income tax, reducing student debt and attracting youth, and fighting the drug crisis.

Energy issues appear in Governor LePage's letter as a focus for -- or obstacle to -- economic development.  In the letter, he repeats his position that "Maine's electricity prices are not competitive."  The letter criticizes legislative mandates supporting "long-term contracts for above-market rates" as adding $38 million in ratepayer costs.

The letter also addresses Maine's renewable energy policy, calling for support for Maine's biomass energy industry while criticizing the economics of wind and solar energy projects:

Socialists love to subsidize new wind and solar energy projects because they think it will save the earth, but that kind of expensive and inefficient energy benefits only a few wealthy investors, and our electrical generation is already one of the cleanest in the country. Instead, let's support the existing Maine-based biomass infrastructure that is already in place to take advantage of our plentiful natural resource: wood.

Indeed, references to socialism and socialists appear twelve times throughout Governor LePage's 2016 State of the State letter.  (A reference to Senator Bernie Sanders' candidacy for President?)

In his letter, Governor LePage also called for expansion of linear infrastructure like natural gas pipelines into New England and electric transmission lines to hydropower resources in Canada:

Meanwhile, my Administration continues to make progress working with other New England states to expand hydropower and natural gas into our region. Right now there is construction underway to expand our pipelines into New England, and clean and affordable hydropower is right next door in Quebec. It's time to switch off expensive energy. We must plug into the affordable reserves of nearby natural gas and hydropower. We must be willing to transmit hydropower to the states south of us.

These themes of energy infrastructure investment echo those playing out elsewhere in the Northeast U.S., as states explore expanded connections to natural gas from the Marcellus shale and Canadian hydropower.

2015 U.S. electric generation additions

Staff of the Federal Energy Regulatory Commission have released a report describing the portfolio of new or expanded electric power generation capacity built in the U.S. in 2015.

FERC's Office of Energy Projects releases regular reports on energy infrastructure permitting and development.  Its Energy Infrastructure Update for December 2015 presents a look at highlights of natural gas, nonfederal hydropower, electric generation, and electric transmission projects developed in the final month of 2015.  The December report also provides a cumulative look at 2015 activity, along with comparisons to 2014.

According to the December 2015 report, solar accounted for the most generation units placed in service in 2015, with 248 projects.  (The report only covers plants with nameplate capacity of 1 megawatt or greater, so smaller, distributed, behind-the-meter, or net-metered projects might not be counted here.)  On the basis of megawatts of capacity installed in 2015, solar ranked third behind wind and natural gas.





Wind took second place in terms of number of projects placed in-service in 2015 with 69 listed "units", but took first place in terms of installed capacity with nearly 8 gigawatts placed in service last year.

Natural gas took third place in terms of both number of units installed (50) and megawatts of capacity added (nearly 6 gigawatts).  Solar, wind, and natural gas together accounted for nearly 97% of all new capacity installed in the U.S. in 2015.  Biomass and hydropower placed fourth and fifth, respectively, in both lists.

The report also shows a comparison to 2014, when new capacity installed was led by the same three generation types -- natural gas, wind, and solar.

Vermont issues updated energy plan

Vermont energy regulators have completed an update of key energy and electricity plans for that state. The Vermont Department of Public Service has updated the Vermont Comprehensive Energy Plan (CEP) and Electric Plan, two plans required by law to be complete and adopted by January 1, 2016, and updated every six years thereafter. 

The updated Comprehensive Energy Plan reaffirms Vermont's overall goal of achieving 90 percent of its total energy needs from renewable sources by 2050, adds interim goals (including reaffirming the statutory goal of 25% by 2025), and provides greater detail on Vermont’s pathways towards achieving these goals.  In particular, the plan includes the following new and more detailed goals:

• Reduce total energy consumption per capita by 15% by 2025, and by more than one third by 2050.
• Meet 25% of the remaining energy need from renewable sources by 2025, 40% by 2 035, and 90% by 2050.
• Three end-use sector goals for 2025: 10% renewable transportation, 30% renewable buildings, and 67% renewable electric power.
• Greenhouse gas reduction goals include: 40% reduction below 1990 levels by 2030, and 80% to 95% reduction below 1990 levels by 2050.

Conversion of heat and transportation applications to "highly efficient electric technologies, such as heat pumps and electric vehicles," is one strategy highlighted in the plan.  The plan also includes a 20-year electric plan, based on the principles of least-cost planning, that serves as a basis for Vermont electricity policy.

Restoring old mill hydro sites and FERC licensure

Suppose you own an existing water powered mill complex whose hydromechanical facilities have not been operational for decades.  You would like to develop a hydropower project at the site, using the existing dam, headrace, and headgates, plus new equipment including two small generators, penstocks, and appurtenant facilities, to provide electricity to your home and workshop.  Do you need a license from the Federal Energy Regulatory Commission?

In the case of the Egnaczak Net Zero Hydro Project proposed for the outlet of the Hoosic River in Cheshire, Massachusetts, the FERC concluded that section 23(b)(1) of the Federal Power Act requires that project's owners to obtain a license for the project's construction, maintenance, and operation.  Proposed by Kenneth and Susan Egnaczak, the Egnaczak Net Zero Hydro Project would have a total generating capacity of 10.7 kilowatts.

Pursuant to section 23(b)(1) of the Federal Power Act, a non-federal hydroelectric project must be licensed (unless it has a still-valid pre-1920 federal permit) if it:

(a) is located on a navigable water of the United States;
(b) occupies lands or reservations of the United States;
(c) utilizes surplus water or waterpower from a government dam; or
(d) is located on a stream over which Congress has Commerce Clause jurisdiction, is constructed or modified on or after August 26, 1935, and affects the interests of interstate or foreign commerce.

The fourth prong itself has three main elements: project located on a Commerce Clause stream, post-1935 construction or modification, affecting interstate commerce.  In this case, FERC concluded that the Egnaczak project satisfied the fourth prong.

First, FERC found that the Egnaczak project is located on a Commerce Clause stream.  Under a 1965 Supreme Court ruling, for purposes of Federal Power Act section 23(b)(1), Commerce Clause streams are the headwaters and tributaries of navigable waters of the United States.  While FERC declined to determine whether the Hoosic River is navigable at the site of the project, it concluded that downstream segments of the Hoosic are navigable, as is the Hudson River into which the Hoosic flows.

Second, FERC next found that installing new hydroelectric generating capacity constitutes post-1935 construction within the meaning of Federal Power Act section 23(b)(1). 

Third, FERC found that the project would offset both electrical and heating needs that would have been otherwise supplied by the interstate grid -- and thus that the project would affect the interests of interstate commerce.  A footnote notes, "It is well settled that small hydroelectric projects that are connected to the interstate grid affect interstate commerce by displacing power from the grid, and the cumulative effect of the national class of these small projects is significant for purposes of FPA section 23(b)(1)."

FERC concluded that because the project would be located on a Commerce Clause stream, would be constructed after 1935, and would affect interstate commerce through its connection to the interstate grid, Section 23(b)(1) of the Federal Power Act requires Kenneth and Susan Egnaczak to obtain a license for the project's construction, maintenance, and operation.  The FERC order also suggests the project may be eligible to obtain an exemption from licensing as a small hydroelectric power project of 10 megawatts or less, and encourages the applicants to investigate the requirements for securing an exemption from licensure.

E2Tech solar forum 2016

Today the Environmental and Energy Technology Council of Maine, better known as E2Tech, held its E2Tech forum on solar energy.

A panel of solar policy experts shared their perspectives on the issues facing Maine.  The panel included:

• Timothy Schneider, Maine Public Advocate
• Fortunat Mueller, ReVision Energy's co-founder
• Brian Conroy, Avangrid's Director of Network Projects & Initiatives
• Rep. Sara Gideon, Assistant Majority Leader in the Maine House of Representatives
• Chris Rauscher, Sunrun's Director of Public Policy

Panelists and audience members discussed some of the recent and ongoing solar energy policy discussions and outcomes in Maine, including a stakeholder process before the Maine Public Utilities Commission to explore an alternative policy complementary to net metering.  That process is expected to wrap up this winter with a report to the legislative committee with jurisdiction over energy matters.

The event also featured Preti Flaherty's launch of its First Light initiative.  Grounded in the Preti team’s experience helping consumers benefit from distributed or “behind the meter” generation, the firm has created a special focus on the commercialization of solar power by and for all consumers.  This strategic initiative will help qualified new entrants, as well as larger, existing companies, navigate legal and business challenges to harness the power of the sun. It will also help site owners participate in solar energy as project hosts, through site leasing and power purchase agreements or other arrangements.  Contact Todd Griset for more information about qualifying for the Preti First Light program.

FERC requires licensure of Alaska hydropower project

What happens when federal hydropower regulators discover an unlicensed project subject to their jurisdiction?  A recent case involving a dam at a remote Alaskan fish hatchery ended with an order requiring the project owner to pursue licensure.

At issue is the Hidden Falls Lake Project, located within the Tongass National Forest on Kasnyku Bay on the eastern shore of Baranof Island near Sitka, Alaska.  The project is owned by the Alaska Department of Fish and Game, who installed a 250-kilowatt generator and related equipment in 1982 to power its Hidden Falls fish hatchery.  (A nearby larger Kasnyku Lake project contemplated by the federal government in 1969 never came to fruition.)

Most non-federal hydropower projects in the U.S. must be licensed by the Federal Energy Regulatory Commission.  Under section 23(b)(1) of the Federal Power Act, a non-federal hydroelectric project without a still-valid pre-1920 federal permit must be licensed if it:

(a) is located on a navigable water of the United States;
(b) occupies lands or reservations of the United States;
(c) utilizes surplus water or waterpower from a government dam; or
(d) is located on a stream over which Congress has Commerce Clause jurisdiction, is constructed or modified on or after August 26, 1935, and affects the interests of interstate or foreign commerce.

Part of the Hidden Falls Lake project -- the intake, penstock, 250-kW hydroelectric generator, powerhouse, and distribution lines -- are located on U.S. Forest Service lands. The Forest Service’s documentation states that a minor license application for the Hidden Falls Lake Project was filed with the Commission in 1981, but the Commission said it did not have any records of this application or of any subsequent Commission jurisdictional determination for this project.

But FERC did apparently know about the project.  In 1989, seven years after the project's generator was installed, the Commission initiated an investigation into the jurisdictional status of the project, suggesting it was "unlicensed" or "unauthorized."  Yet that unlicensed hydropower project investigation docket then went dormant until 2015.  Last year, the Forest Service informed the Commission that it had identified the project while conducting environmental reviews in support of a renewal of the Alaska agency's special use permit for the hatchery.  Thus the investigation resumed.

The Commission issued its final order in the case on January 28, 2016.  Because the project intake, penstock, hydroelectric generator, powerhouse, and distribution lines occupy public lands of the United States, the Commission concluded that the Alaska agency must obtain a license for construction, maintenance, and continued operation of the Hidden Falls Lake Project.  The Commission ordered the Alaska agency to file within 90 days a schedule for submitting a license application within 36 months.

If a small hydropower project on a remote Alaskan island is subject to FERC licensure, how many other unlicensed hydropower projects might be out there?  How many other unlicensed hydropower projects might there be on Forest Service or other federal lands?  While FERC investigations of unlicensed hydropower projects are relatively rare, with most years seeing only a handful of public active investigations, could there be other existing projects like the Hidden Falls Lake Project?