Recently, the three sitting Commissioners of the Federal Energy Regulatory Commission (FERC) convened thirty industry experts at a virtual Technical Conference on state adoption of carbon pricing and its implementation in organized, wholesale electricity markets managed by regional transmission organizations (RTOs) or independent system operators (ISOs). Public interest was high, with more than 2,000 computers across the country logged on to the discussion, which stretched over nine hours. Although no carbon pricing measures have been filed by RTO/ISOs for consideration by FERC, the sense of the Technical Conference was that proposals from states or from RTO/ISOs acting on their own initiative are right around the corner, irrespective of the election outcomes in November.
Discussion at the Technical Conference revealed complex and potentially contentious issues that FERC may face when considering proposals to incorporate carbon pricing into RTO/ISO electricity markets:
- Jurisdiction.Some states have already adopted regulatory schemes for carbon pricing that impose compliance obligations on electricity suppliers (e.g., state-level cap and trade programs that require electric generators to purchase CO2 emission allowances, as in California and the Northeast Regional Greenhouse Gas Initiative). The consensus view of the panelists was that, under the Federal Power Act (FPA), RTO/ISO tariffs may incorporate state-mandated compliance costs, as a normal input price of producing electricity. But does FERC have jurisdiction to approve in RTO/ISO tariffs carbon pricing that is not an out-of-pocket compliance cost? Panelists posited that RTO/ISOs might propose to require that all generators located within the RTO/ISO region include in their marginal cost-based bids an imputed carbon price assessed for each ton of carbon emissions (i.e., the carbon price is not incurred to comply with a state regulatory program)? These panelists opined that FERC has authority to approve an RTO/ISO tariff that requires generators to include the carbon price of their emissions in their cost-based bids.
第三个案例也得到考虑:FERC要求将碳价格列入所有成本标价中,即使RTO/ISOs没有选择将碳定价纳入其关税中,州也没有选择授权碳定价?这个案例对FERC根据《联邦权力法》拥有的管辖权范围提出了意见分歧。 一些小组成员认为FERC可以授权所有RTO/ISOs采行碳定价Other panelists believed that FERC has limited authority to mandate inclusion of carbon pricing everywhere, whereas FERC has broader authority to approve carbon pricing proposals that individual RTO/ISOs develop through their stakeholder and governance processes. There was an undercurrent in the discussion to the effect that, in the first instance, FERC might prefer to consider carbon pricing through an RTO/ISO-initiated proposal (via a FPA section 205 tariff filing) ahead of any request (such as via a complaint filed under FPA section 206) that FERC consider mandating all RTO/ISOs to adopt carbon pricing rules in their tariffs.
- Who sets the imputed carbon price and on what basis?由NYISO利益攸关方进程开发的建议要求生成者将CO2排放的碳价写进能源市场出价中。根据这个建议草案,碳价将由确定碳社会成本的国家机构确定。前位ss/www.insideEnergyandEnvironce.com+8/12/New-E
Questions raised but not conclusively answered during the Technical Conference include:
- Should FERC establish criteria for determining the carbon price?
- Is there a "zone of reasonableness" that FERC could set, so that carbon prices are not too low and not too high?
- What if different states estimate different social costs of carbon or set the carbon price based on criteria different from the social cost of carbon?
- Should FERC seek to impose uniformity or to encourage diversity of approaches to the setting of a carbon price within each state of a multi-state RTO/ISO and across all RTO/ISO markets in the nation?
Most panelists expected that FERC would be receptive to varying approaches to setting the price of carbon across states within a multi-state RTO/ISO and across all RTO/ISO markets in the country.
- Implications of non-uniformity of carbon pricing rules.专员们提出的许多问题都假设多状态RTO/ISO内部和不同RTO/ISO之间会有不同的碳定价规则与不同的碳价格。这些问题探究没有同源规则是否会:
- or
- cause generators facing high carbon prices to experience unfair competitive disadvantages vis a vis generators in different states or regions facing lower, or no, carbon prices (a concept implicating economic efficiency and a statutory injunction against "undue discrimination").
Panelists expressed diverse views relating to which policy and legal concerns the Commission might give priority.
Suffice to say here, RTO/ISO carbon pricing proposals that lack homogeneity across states, resource types, and regions of the country are likely to raise difficult issues relating to differential impacts on electricity prices paid by consumers, potential competitive disadvantages that could interfere with efficient energy markets, and problems of tracing electricity that is exported from energy markets with one carbon pricing regime (e.g., lower carbon prices) to energy markets with a different carbon pricing regime (e.g., higher carbon prices). Both Commissioners and panelists expect that the proverbial devil may surface in the details of implementation of non-homogeneous carbon pricing rules.
- Revenue recycling.Carbon pricing will be applied in complex RTO/ISO electricity markets that feature auction-based market-clearing prices for electricity being established in each pricing interval (which could be as short as five or ten minutes), and at multiple pricing locations. In these markets, all generators will be paid the market-clearing price and all consumers will pay the market-clearing price. Accordingly, carbon pricing proposals will include mechanisms that impose carbon charges on actual emissions, such that zero-emitting resources receive higher net electricity market revenues per unit of electricity sold than carbon-emitting resources receive for their electricity sales. The flip side of this market design issue is that consumers will be paying the market-clearing price for all electricity consumed, which will reflect the carbon price paid by the least efficient, carbon-emitting resource. Most carbon pricing proposals incorporate "revenue recycling" mechanisms that take a portion of the carbon charges collected in electricity prices and rebate those charges to consumers.
在一些已经实施碳收费的州中,如加利福尼亚州碳上限交易程序等,通过拍卖排放量回收的碳收费由国家花在各种程序上,包括消费者回扣和新支出州级环境投资(如高速铁路或汽车电气化基础设施) 。 FERC需要决定是否和如何允许或要求RTO/ISO回收批发电市场买主的部分碳收费,并通过它们回收零售客户FERC可能需要考虑国家在指令如何回收碳收费方面的作用 。
对许多经济学家来说,碳定价最高效最优减少碳排放的政策工具。 然而,到目前为止,各州更有可能采用补贴项目和间接碳定价程序,如可再生组合标准要求,激励低或零排放生成资源。 多位专题发言人问道,随着碳定价通过电市出现,各州是否可以或应该或期望减少对补贴和间接定价程序的依赖If not, it was argued by some that consumers will be paying twice for the same carbon reductions and zero-emitting resources will, in effect, be paid double for their zero carbon profile. Some panelists suggested that FERC may want to encourage or direct that states reduce their reliance on subsidy programs, if RTO/ISOs in their region adopt carbon pricing. Other panelists argued that retention of other subsidy programs should be a matter of states' prerogatives, subject only to limitations imposed by the legal doctrine of preemption.
The FERC Technical Conference presented the FERC commissioners and their staff with different perspectives on each of these, and other, legal, economic and market design issues that will arise from implementation of carbon pricing in RTO/ISO organized electricity markets. Now, all that FERC has to do is wait for and respond to the first RTO/ISO carbon pricing tariff proposals to be submitted for review and approval under FPA section 205.
This final rule should be of interest to a wide range of electricity market participants, including utilities and investors in cogeneration and certain types of small scale generation facilities. The new regulations are expected to alter somewhat the commercial benefits accorded qualifying generation facilities under PURPA. The revised rules are certain to be controversial. Notably, one FERC commissioner dissented from the order "because it effectively guts the Commission's implementation" of PURPA.
Background
PURPA established a framework to encourage the development of small power production facilities, i.e., those 80 MW and under, that do not rely on fossil fuel, and cogeneration facilities, and directed FERC to set implementation rules. Generation resources that meet specified standards are deemed "Qualifying Facilities," or QFs, and, among other benefits, have the right to sell electricity to a utility at the utility's avoided cost or at a negotiated rate.Responsibility for implementing PURPA's provisions is shared between FERC and the states. FERC establishes the standards for qualification and certifies QFs. FERC also sets the general standards for determining a utility's avoided costs, but each state is responsible for determining the actual avoided costs of its utilities.[1]
In its Notice of Proposed Rulemaking (NOPR) in this proceeding, FERC noted that the electric power industry has changed quite a bit since the rules implementing PURPA were issued in 1980. Then, the industry was dominated by vertically integrated utilities that served customers from their own generation resources. Today, there are organized wholesale markets administered by Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) where independent generators can sell power at competitive prices. These markets have helped support the entry of renewable resources.
Final Rule
In the final rule, FERC revised its PURPA regulations principally with regard to: (1) the determination of QF rates based on a utility's avoided costs!80兆瓦限制并用位于同一网站的附属小电生产QFs和(3) 终止公共事业强制购买义务QF无差别地进入竞争市场,例如ISOs和RTOs管理的那些.
新规则还提供更大的确定性,确定何时产生可依法执行的义务并因此赋予QF强制购买义务的权利 。aQF必须证明商业可行性并做出财政承诺,在QF有权获得合同或LEO前按客观合理的条件建设设施 。The new rule prohibits states from using other requirements for establishing LEOs, which had been relied upon under the old rules, such as execution of interconnection agreements or power purchase agreements, or that QFs demonstrate their ability to deliver firm energy or energy within 90 days.
FERC declined to adopt a proposal from the NOPR, that would have allowed purchasing utilities in states with retail choice to obtain special relief from the avoided costs rules.
QF facilities located at the "same site"– the "one-mile rule"
Old Rule. By statute, PURPA's benefits are available only to renewable facilities that do not exceed a production capacity of 80 MW at the "same site." By regulation, FERC defined these small power production facilities located at the "same site" as facilities owned by the same person or its affiliates, using the same energy resource, and located within one-mile of the facility seeking QF qualification (the "one-mile rule").The one-mile rule precluded circumvention of the 80 MW size limit through arbitrary division of a single project into multiple projects.
New Rule. The new rule retains the one-mile rule, with its non-rebuttable presumption that affiliated facilities located within one mile of each other are deemed to be at the same site and adds a new non-rebuttable presumption that affiliated facilities located more than 10 miles apart are deemed to be at separate sites. The new rule allows electric utilities, state regulatory authorities, and other interested parties to show that affiliated small power production facilities that use the same energy resource and are more than one mile apart and less than 10 miles apart actually are at the same site and are, therefore, subject to the 80 MW size limitation.
Termination of mandatory purchase obligation from QFs with access to competitive markets
Old Rule. A utility may terminate its obligation to enter into new contracts to purchase power from QFs if the utility can show that the QF has nondiscriminatory access to competitive wholesale markets, such as those operated by RTOs or ISOs. There is a rebuttable presumption that QFs with a net capacity at or below 20 MW do not have such access and are, therefore, entitled to sell their energy to a utility at avoided cost rates.
New Rule.The new rule lowers the competitive market rebuttable presumption from a threshold of 20 MW to 5 MW (not 1 MW as had been proposed in the NOPR) for small power production facilities but not for cogeneration facilities. The new rule provides examples of factors relevant to a showing that QFs lack nondiscriminatory access to particular competitive markets.
Other rule changes
Challenges to a QF's self-certification or recertification. Under the old rules, an entity seeking to challenge a QF's self-certification or recertification had to file a declaratory order and pay the associated filing fee. The new rule allows any interested party to file a protest of a QF's self-certification or recertification (if the latter makes substantive changes to the existing certification), without paying a filing fee.
Effective Date of New Rules. The new rules will be effective 120 days after their publication in the Federal Register. The new rules are generally effective prospectively for new contracts or LEOs and for new facility certifications and recertifications filed on or after the effective date of the final rule.FERC does not intend that the final rule permit disturbance of existing QF certifications or existing contracts or LEOs that are pending before state commissions prior to the effective date of the final rule.
Commissioner Glick's dissent
Commissioner Richard Glick dissented in part from the final rule order "because it effectively guts the Commission's implementation of the Public Utility Regulatory Policies Act (PURPA)" and "the Commission is attempting to accomplish via administrative fiat what Congress has repeatedly declined to do via legislation." The Commissioner's basic point is that PURPA in part charged FERC with encouraging the development of QFs and preventing discrimination against QFs by incumbent utilities, and the final rule does not satisfy these responsibilities.
Commissioner Glick warns of the following consequences of the final rule:
- Eliminating the requirement that states provide a contract option that includes a fixed energy rate means that QF developers may face the prospect of not receiving any fixed revenue stream, whether for energy or capacity.FERC先例允许水电公司在不需要增量容量时向QFs提供零容量率。FERC过去承认定价合同在为QF设施融资方面起着关键作用,而经验丰富并开发QFs的实体在此流程中解释获得融资需要固定收入流。
- Allowing States按相关定位边际价或相似的“竞争性市场价”定时可用能率可能导致率不代表避免成本国内许多区域尚未建立充分竞争市场,短期或即时价格如LMP可能不反映通过购买公共事业避免的长期边际能源成本。
- 将规模阈值从20MW降为5MW以维护竞争性市场强制购买义务将削弱ISO/RTO市场区可再生能源开发委员Glick对小可再生能源项目不会在RTO/ISO市场面临接入屏障这一最后规则产生争议。
The filing triggers a complex, multi-forum struggle among creditors, energy providers, and many other diverse stakeholders. The impact of the restructuring process will be far reaching, jeopardizing compensation to wildfire victims, the state's implementation of its ambitious climate and renewable energy policies, and the ultimate future of the utility as a partner in those efforts.
2017 and 2018 Northern California Wildfire Liabilities
Although California has always experienced wildfires, due to the trifecta of climate change-induced drought and excessive heat, poor forest health caused by bark beetle infestation, and increasing encroachment of development into the urban wildland interface, the past two fire seasons have been the most calamitous in California's history.
PG&E's significant liability exposure for wildfire damages is rooted in the California constitutional doctrine of inverse condemnation, which subjects privately-owned public utilities to strict liability when their equipment is a substantial cause of a plaintiff's damages.[1] Investigations by the California Department of Forestry and Fire Protection (Cal Fire) into the 2017 Northern California wildfires implicated PG&E equipment as the cause with respect to a majority of the fires, although Cal Fire recently concluded that PG&E equipment was not the cause of the most destructive of them, the Tubbs Fire.
And while Cal Fire has yet to determine the cause of the devastating 2018 Camp Fire, which wiped most of the town of Paradise off the map, according to PG&E's own Form 8-K filing, utility equipment in the vicinity of the ignition point experienced problems shortly before the fire began and damage was observed to a PG&E transmission line later that day.Thus, despite Cal Fire's report on the Tubbs Fire, PG&E continues to face tens of billions of dollars in potential wildfire liability (before accounting for punitive damages, fines, or penalties), while possessing insurance coverage of an order of magnitude less. Coupled with the prospect that the California Public Utilities Commission (CPUC) will ultimately disallow recovery of those costs from the utility's ratepayers, as it has in another case, these risks pushed the utility to the brink.
Stopping short of altering the doctrine of inverse condemnation, the California Legislature enacted Senate Bill (SB) 901 in 2018 due to the then-unprecedented level of damages and costs stemming from the 2017 fires. SB 901 allows for securitization of 2017 liabilities in excess of what the utility can bear and changes the regulatory framework for consideration of whether post-2019 wildfire liabilities should be borne by the utilities' shareholders or ratepayers.SB901没有处理与2018灾难野火相关的责任问题,2018野火签署后短短数周开始。After the CPUC instituted a rulemaking to implement SB 901 that the utility believed would postpone its ability to securitize costs for the 2017 fires for several years, PG&E concluded that bankruptcy was the only viable option and in the best interests of all stakeholders.
PG&E's bankruptcy filing creates significant uncertainty for wildfire victims: PG&E announced just days before filing that it would stop paying negotiated settlement amounts to victims of the 2015 Butte Fires. Due to the effect of the automatic stay, victims of the 2017 and 2018 fires are now barred from prosecuting their claims against PG&E in state court.As a consequence, regardless of where they are liquidated, the claims of victims of the state's deadliest wildfires are subject to the rules and statutes applicable to creditor recoveries in bankruptcy.
The Risk to Renewable Energy Contracts
Other than the wildfire victims, perhaps no group of stakeholders has received more attention from the Governor's office and Legislature than the renewable energy generators who provide the power needed for PG&E to meet its obligations under the California's Renewables Portfolio Standards (RPS) Program and climate change mandates.
Many of these power purchase agreements (PPAs) are now significantly above market rates, as the price of procuring renewable energy resources has declined precipitously in recent years. At the same time, PG&E has experienced a substantial decline in demand for renewable energy due largely to the departure of its customers to Community Choice Aggregators (CCAs) within its service territory. CCAs are projected to serve a significant and increasing percentage of load within PG&E's service territory in the near future, resulting in a corresponding reduction in PG&E's obligation to procure renewable energy resources to meet the RPS. Although PG&E may still seek to reject many of its renewable energy PPAs or renegotiate them at lower rates under the threat of rejection, PG&E said in its filing with the court that it has not made "any decisions yet regarding whether to assume or reject any PPAs ...s/sanluisobispo.com/news/local/article22496960.htmlOnly a few days later, FERC granted the requested relief on January 25 and January 28, asserting that it has "concurrent jurisdiction" to review disposition of wholesale contracts and that its "approval is required" for PG&E to reject wholesale PPAs. As FERC acknowledged in its orders, however, the jurisdiction issue is unresolved and has been decided differently by a federal appeals court and two district courts, with one of the district court decisions currently on appeal.
Along with its Chapter 11 filing, PG&E also commenced an adversarial proceeding requesting a declaratory order that the bankruptcy court has exclusive jurisdiction over its rejection of contracts and that it is not required to seek or obtain FERC approval of any rejection of its contracts. PG&E also asked the bankruptcy court to enforce the automatic stay provisions of the bankruptcy law and enjoin FERC from enforcing its orders in the NextEra and Exelon cases. FERC will almost certainly oppose PG&E's filings, as it has done in the First Energy bankruptcy pending in the Sixth Circuit.FERC must file its answer by March 5 in the Adversary Proceeding before the bankruptcy court, and the court has scheduled a status conference on the automatic stay motions for March 26. The resolution of this jurisdictional dispute will have significant implications for renewable energy providers that are party to contracts with PG&E, with the potential for FERC to act as a significant check on PG&E's ability to reject and renegotiate its contracts.
Impacts May Ripple Broadly Across the Energy Sector
Beyond the impacts on renewable energy providers, PG&E's January 29 filing may result in potential financial exposure and disruption for a diverse group of stakeholders, including:
- CAISO market participants, which may be required to fulfill PG&E's share of grid management payments in the event PG&E defaults and its collateral is exhausted.
- CCAs, for which PG&E continues to manage customer billing and transfer of customer payments back to the CCAs, which may face interruptions in cash flow as payments are held up as a result of the bankruptcy filing.
- Electric vehicle charging infrastructure investments, which, while already authorized by the CPUC, may face delays or suspension as the bankruptcy process continues to unfold and other issues and expenditures are prioritized.
- Producers and consumers of energy, who may need to take up the slack and achieve even deeper reductions in their own emissions to keep the state on track towards its climate targets if PG&E should default on its expected share of reductions.
Indeed, the prospect of PG&E halting its heavy investments in energy efficiency, transportation electrification, electric system decarbonization and grid modernization could realistically put the state's attainment of its ambitious climate goals at risk. More broadly, due to California's outsized role in climate change mitigation, the outcome of the Chapter 11 case could realistically influence the progress that other states and subnational jurisdictions are making to address climate change and decarbonize their energy sectors.
[1] See Cal.康斯特艺术I,§19em>Barham v南卡尔市Edison公司 ,74CalApp.4th744,753 (1999) (控股私有电商为公有实体逆判)
Carbon pricing is seen by many as an effective means of reducing carbon dioxide (CO2) emissions from electricity generation. California and several Eastern states have enacted "cap and trade" emission allowance programs, which have forced generators in those states to pay a price for their CO2 emissions. With the Obama Administration's Clean Power Plan not being implemented, there is currently no federal policy in place that would result in carbon pricing for electricity. In a singular proposal, acting without any state or congressional mandate, but with the support of State regulatory agencies, the New York Independent System Operator (NYISO) proposes to require carbon pricing for all power sold in New York State through the NYISO wholesale electricity market. For the first time, the Federal Energy Regulatory Commission (FERC) will be called upon to decide whether and how carbon pricing may be incorporated into wholesale electricity market tariffs solely under the authority of the Federal Power Act.
The NYISO carbon pricing proposal must be fully developed and vetted through a stakeholder process that could take one to two years to reach consensus on a tariff amendment that would be submitted to FERC for review and approval. This stakeholder process and the subsequent FERC proceeding will grapple with complex issues of electricity market design and novel jurisdictional and policy issues. The outcome of this process could lead to a push for the adoption of carbon pricing in other FERC-regulated organized regional electricity markets throughout the nation.
The NYISO carbon pricing proposal
The NYISO proposes to fix the price of carbon emissions from electricity generation at the "social cost of carbon," which is a measure developed by federal agencies and endorsed by New York State agencies. The social cost of carbon is more than triple the recent market price of CO2 allowances in state cap and trade programs.
The NYISO operates auction-based wholesale electricity markets, which establish market-clearing prices that all suppliers receive and all wholesale purchasers pay. Suppliers submit bids to the NYISO to provide quantities of electricity at different prices and the highest-priced offer that is needed and accepted to meet electricity demand in each hour sets the single market-clearing price for that hour.Under competitive market conditions, market clearing prices are determined by the marginal costs of production (i.e., generators' fuel costs) of the last increment of supply that clears the market. Today, suppliers' bids include emission allowance costs, but these are a fraction of the social cost of carbon. The NYISO's carbon pricing proposal would require that all suppliers' bids include the social cost of carbon of all of the CO2 emissions from in-state generation resources that would supply the quantity of power the bids require.
To the extent carbon-emitting resources set the market-clearing electricity price, which they are likely to do for much of the foreseeable future in New York State, electricity prices paid by retail utilities and energy service providers will rise substantially. Some experts predict NYISO wholesale electricity prices could increase by between 50 and 75 percent, although much of the price increase is proposed to be rebated to consumers. Zero-carbon resources, such as wind, solar and nuclear facilities, will receive the full market clearing price. Carbon-emitting resources, such as coal and natural gas facilities, will have their carbon costs deducted from their market revenues. The aggregate difference (referred to as "Carbon Residuals") between amounts the NYISO collects from all wholesale purchasers and amounts paid to suppliers (reflecting the carbon charge to suppliers) would be rebated in some manner to retail customers.
Jurisdictional and Market Design Issues
Does the Federal Power Act authorize carbon pricing?In the absence of a state or other federal law that imposes carbon costs on electricity generators, FERC and the courts will need to decide whether, acting solely under the authority of the Federal Power Act, FERC may approve and establish the imposition of a carbon price adder on all electricity sold under an ISO tariff. Some may challenge the carbon price adder as a ‘tax" that must be enacted by Congress or as an environmental measure beyond the jurisdiction of an economic regulator such as FERC. Others will defend the proposal as a "just and reasonable" measure necessary to establish economically efficient and non-discriminatory wholesale electricity markets. Conversely, it may be argued that the absence of a carbon price is a "practice affecting wholesale electricity rates" that is discriminatory and unjust and unreasonable, which must be corrected by FERC under the Federal Power Act.
Who sets the carbon price?NYISO建议纽约公共服务委员会确定碳的社会成本,部分依赖自此由s/www.whitehouse.gov/pative-actions/presidential-destruction-promoting-Energy-evenity-NYISO建议只对COsub>2 生成设施燃烧排放量强制规定碳价,但其他人可能建议碳社会成本应反映与燃料提取和运输相关的上游碳排放量(包括甲烷)。
There will be many more design issues to be faced in incorporating carbon pricing into the complex NYISO tariff rules governing, bidding, scheduling, price-setting, out-of-market dispatch and the capacity market. Although the NYISO's carbon pricing proposal is relatively simple in concept, it may prove devilish in the details.
A recent New York Times article reported on an early-stage, solar energy microgrid being formed in Brooklyn, called the Brooklyn Microgrid, that relies on blockchain technology, the innovative database technology used by cryptocurrencies like Bitcoin that promises to transform industries as diverse as financial services, health care, retail, and manufacturing. The blockchain-based microgrid enables neighboring residents and businesses to join an electronic trading platform and allows residents with solar rooftop panels to sell their excess electricity directly to neighbors within the microgrid. The use of blockchain technology facilitates secure and verifiable peer-to-peer energy trading, without involving the local electric utility in administering the microgrid.
Blockchain is a type of distributed ledger technology that creates and maintains a complete sale-purchase-delivery transaction history for a commodity, such as currency or, in this case, electricity. With a blockchain distributed ledger, identical, immutable copies of the ledger are available to multiple participants in the network, not just to a single intermediary, such as the local utility.The use of blockchain in an electricity microgrid gives participants the ability to meter surplus electricity production from rooftop solar panels and to document securely the sale and use of that electricity by other members of the connected microgrid. The transaction chain would omit the local utility, which would account for net flows in or out of the collective microgrid, but not for the real-time purchase and sale of surplus solar energy. The ultimate goal for blockchain-based microgrids may be to build a microgrid with energy generation and storage components that can function largely independently of the local electric utility company's system, even during widespread power failures.
The project is one example of how the marriage of solar energy and blockchain distributed ledger technologies can redefine the relationship between energy producers and energy consumers, promote solar energy, and create alternatives to the traditional centralized power grid.说到此,可能需要从公共事业委获取创新、轻率监管解决方案,允许单链式销售和购买微格内剩余太阳能电量,而不导致每个卖方都成为受控电力零售商。
I. Efforts to Rescind or Block the Clean Power Plan.
- The Trump Administration might ask the D.C.Court of Appeals or the Supreme Court to stay its hand and not issue an opinion on the appeal challenging the legality of the Clean Power Plan that is currently pending in the Court of Appeals en banc.
- The new EPA Administrator might initiate rulemaking procedures to modify, delay the effective date, or rescind the Clean Power Plan.
- The Republican-led Congress might defund EPA implementation or enforcement of the Clean Power Plan.
- 24 State Attorneys General have recommended to the President-elect steps he should take to rescind the Clean Power Plan.
II. Exit from or Mitigating Impact of the Paris Global Climate Change Agreement
- The Trump Administration might seek an exit from the Paris Agreement or its parent treaty or a defunding of implementation of the Agreement, or it might submit the Agreement for a Senate ratification vote.
III.Rescinding Other EPA Regulations Affecting Power Plants
- The Trump Administration might withdraw or reconsider proposed regulations or rescind or ease final rules regulating various emissions (e.g., methane, mercury, particulates, ozone, and carbon dioxide) from power plants, pipelines and coal mines.
- Senate Majority Leader McConnell has expressed strong support, in a letter to the President-elect, for action to rescind a range of environmental regulations, including the Clean Power Plan, affecting the coal industry and the power sector.
IV. Fast Tracking for Infrastructure Project
- The Trump Administration's 100-day plan signals regulatory and permitting changes in order to speed up approval for transmission, power plant, and natural gas pipeline projects.
- The Trump Administration's 100-day plan also proposes $ 1 trillion in infrastructure development, leveraged through new tax credits and public-private partnerships.
V. Renewable Policies
- The Trump DOE transition team memo suggests that the Trump Administration might seek to modify DOE loan guarantee programs and R&D support programs that have targeted renewable generation.
- The memo also indicates that the Trump Administration might roll back administrative measures designed to incentivize new renewable generation, end-use energy efficiency, and demand-side energy management.
- Finally, the memo intimates that the Trump Administration might announce a national policy to deemphasize electric vehicles.
VI. Support for Nuclear and Coal Generation
- The Trump Administration might speed approvals of nuclear plant relicensing and might propose subsidies to prevent existing nuclear power plants from closing. The Nuclear Energy Institute has proposed to the Trump transition team a suite of policies to support the industry.
- The Trump Administration is expected to adopt measures to stabilize the coal mining sector, including preserving existing coal-fired power plants.
VII. Accommodation or Preemption of States' Diverse Energy Policies
- It is unclear how the Trump Administration might address State efforts to pursue their own energy policies, which could diverge from Administration priorities. For example, will the Administration interfere with State carbon programs, with State renewable portfolio standards, State subsidy programs for nuclear units, State policies on distributed generation and storage, and state (and regional) power planning?状态碳政策可跟踪
In FERC v.EPSA ,2016年1月25日发布Supreme Court ruled, in a 6-2 decision, that FERC has jurisdiction under the Federal Power Act (FPA) to regulate demand response transactions in wholesale electricity markets administered by independent system operators (ISOs) and regional transmission organizations (RTOs). The Court also upheld, as reasoned decision-making, FERC's determination that ISOs/RTOs should pay the same compensation (i.e., the market clearing price) to generators and demand response resources participating in the day-ahead and real-time energy auction markets. In so holding, the Supreme Court may have paved the way for FERC to provide regulatory incentives for other emerging electricity transactions and practices that blur the historical distinction between FERC-regulated wholesale sales and state-regulated retail sales.
Justice Kagan's opinion for the Court recognizes that the federal-state jurisdictional divide is prone to dispute "because — in point of fact if not of law — the wholesale and retail markets in electricity are inextricably linked." Slip op.批发零售交易和规程的关联性随着分布式生成传播、能源存储能力、终端使用节能措施以及其他变换性交易而变得更为明显。在本博客文章中,我们对法院在FERC v.EPSA 可能证明这些未来转换事务。
1FERC法定司法源 法院管辖权分析取自FEC201节,该节划分FERC和州法批发销售和零售销售。 法院确认,“法律超出FERC权限范围,单由州管理`任何其他非批发销售'-最明显的是任何批发电销-SlipO鉴此联邦和州司法分治 华府上诉法院判定需求响应低于此值, 即减少终端使用量,见 SlipO12-13. 开根司法司法权限分析没有底层确定需求响应作为非销售交易是否批发或零售市场的一部分。EPSA FERC第205(a)节、205(c)节和206(a)节也包含FERC司法权限,用略微不同的语言要求委员会审查并规范批发销售“率和收费”的“公正和合理性 ”, 并规范批发销售规则、规则、规则、分类法、合同和惯例“影响或关联性 ” 。 依据205节和206节,最高法院现在明确认定,FERC拥有确保规则或实践“影响”批发率公正合理性的义务at 15
2, 'affecting'权限 205节和206节没有明文限制可能“影响”批发率的做法范围。EPSA 采行权限限制 : “我们现在批准对计生协语言的常识构建,限制FERC's'Affective'at 15(强调原创)
3.u>栏反对规范电力销售 em>FERC诉EPSA 不授权FERC批发率、交易和市场实践“直接影响”。法院认为FC201分解联邦和州权限要求FERC行使205和206分管权“不规范SlipO与法院没有具体定义或确定“直接影响”标准一样,法院也没有建立标准来确定直接影响到批发率的FERC规则何时越边界向州监管局保留零售权EPSA adopts a negative criterion, stating that just because a FERC regulation substantially affects the quantity or terms of retail sales, FERC would not necessarily transgress the States' exclusive authority over retail sales under FPA Section 201. But, the Court's opinion at this point leans heavily on its finding that FERC's regulation of demand response "addresses only transactions occurring on the wholesale market." This leaves much uncertainty as to the reach of FERC's "directly affecting" jurisdiction to transformative transactions that have both wholesale and retail components. Here it is useful to recall Justice Kagan's injunction that as a factual matter, "the wholesale and retail markets in electricity are inextricably linked." Slip op.1. 因此,FERC对分布式能源参与批发市场监管可达多远尚不清楚,因为分布式能源常被实际整合到国家监管公共分配系统并按净价按国家零售关税定价。 时间将再次说明FERC和法院如何制定标定FERC可允许直接影响到批发市场和利率的转折交易监管与不允许批发销售和利率监管之间的绝对但模糊边界标定标准。
4u>JusticeScalia的异见 Justice Scalia's jurisdictional analysis differs from the Court, even though he agrees that FERC has the authority under FPA sections 205 and 206 to regulate practices "affecting" wholesale rates and that the Court's "direct effect" test is a reasonable limit on such authority. Dissent at 1. Justice Scalia (with whom Justice Thomas joined) parts company with the rest of the Court (except Justice Alito, who recused himself) on the threshold applicability of the limits on FERC jurisdiction established under FPA section 201. Justice Scalia believes the core issue is whether the FERC demand response rule permissibly regulates sales at wholesale, not, as he characterizes the Court's test, whether the FERC rule impermissibly regulates retail electricity sales. Dissent at 2. This distinction is important to Justice Scalia because he argues that FPA section 201 "excludes from FERC's jurisdiction all sales of electric energy except those that are demonstrably sales at wholesale." Dissent at 3 (emphasis in original).
Justice Scalia concludes that demand response, by its very nature, does not involve a wholesale sale. The FPA defines a "sale at wholesale" to be a sale to any person "for resale." Justice Scalia observes that demand response participants (aggregators or end-users) do not resell electricity, but consume less of it. Justice Scalia argues that FERC's jurisdictional reach turns on the identity of the putative purchaser of the electricity (i.e., must be a reseller and not an end-user) not the market in which transactions occur. Thus, Justice Scalia finds irrelevant the fact, relied on heavily by the Court, that FERC-regulated demand response transactions occur through bidding in ISO/RTO administered wholesale energy auction markets. Dissent at 3. Query how Justice Scalia would apply his "identity of purchaser" test to a FERC rule regulating distributed energy resources' sales of surplus energy to a local utility, which is a reseller?
5.chevron 解释FERC管辖权 中的奇特作用。 chevron 学说命令法院服从机构合理构建其法定权限,如果可适用规约模棱两可或模棱两可,但若规约毫不含糊地排除机构权威主张则不服从。FCC ,___U.S.., 133S.Ct.1863, 1870-71 (2013). 有意思的是,无论是法院Kagan大法官或Scalia大法官均不尊重FERC对需求响应权限的解释14n5第2点表示异议,当然令人好奇的是,两种对FERC法定权限有如此不同解释的意见会发现规约中没有模棱两可之处。也许,这表示法院越来越不自在地向代理机构 Chevron 表示对涉及联邦主义问题的核心司法条款的顺从性。
- Reliability safety valve mechanisms. Will states or FERC be required or expected to assess the reliability implications of a state implementation plan? Will states or individual power plants be able to obtain waivers of compliance deadlines and requirements if certain plants are needed for reliability?
2 最高法院主要的终期裁定转而服从法院对机构判定复杂法规含混性条款的含义,应用熟悉 Chevron 框架法院不太顺从地应用Chevron 可能会引起一些重要问题,即服从法院可能期望在EPA清洁电程中赋予其法定权限范围,即根据清洁空气法第111(d)节为现有矿物燃料电厂制定二氧化碳减排标准。
King vBurwell ,法院审查内部税务局条例允许根据《可负担照护法》对联邦或州创建的“Exchange”购买保险计划提供税收补贴。EPA 法院审查了EPA依据清洁空气法第112节确定的阈值,即启动电厂危险空气污染规范是“适当和必要的”,不考虑监管过程初始阶段的成本。Burwell EPA 不太可能预告未来法院对清洁电力计划的挑战。然而,法院对这两个案例应用sem>chevron 可能会预示对EPA清洁电力计划的司法复议比传统二分检验 Chevron 预期要差得多。
under Chevron 法院先审查监管规约是否留下歧义,如果是这样,法院可受命服从联邦机构合理解决该机构委托管理规约中的歧义问题。Tem>King v.Burwell EPA (Thomas大法官质疑 Chevron 遵重合宪性除外)确认传统 Chevron 框架的适用性最突出的是法院多数意见不服从机构模棱两可的解决 。首席大法官Robert 的意见Burwell grounds Chevron in "the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps." But, "in extraordinary cases," the Court states that Congress may not have intended such an "implicit delegation." The Court holds the statutory ambiguity before it to be one of those extraordinary cases in which Congress has not expressly delegated to the respective federal agency the authority to resolve the ambiguity and, therefore, seemingly, zero deference is given by the Court to the applicable IRS regulation. The Court explains that whether billions of dollars in tax subsidies are to be available to insurance purchased on "Federal Exchanges" is a question of "deep economic and political significance," central to the scheme of the Affordable Care Act, such that had Congress intended to assign resolution of that question to the IRS "it surely would have done so expressly," especially since the IRS "has no expertise in crafting health insurance policy of this sort." Eschewing any deference to the IRS interpretation, the Court assumed for itself "the task to determine the correct reading of" the statutory ambiguity.
King v.Burwell 是一个稀有案例,法院允许联邦机构零顺从解决 Chevron 下的法定歧义。值得注意的是,法院对上诉法院应如何判定其他法定歧义是否同样值得降低或不服从机构解释持开放态度。EPA 称法院“通常以怀疑论度向.打招呼,.代理称在远期规约中发现非继承权调节美国经济的一大部分。”许多评论家甚至在King v.Burwell 是否对清洁电力计划司法评审有影响,可以说,这具有与可负担照护法相似的“深度经济和政治意义”。然而,EPA肯定比IRS设计医疗保险保单有较长经验、更多专业知识和更大自由度。鉴于法院确定温室气体明文属于清洁空气法范畴的强例,上诉法院可能区分King vBurwell 并应用传统 chevron EPA 应用 Chevron EPA规则In this case, the Court reviewed EPA's threshold determination, under Section 112 of the Clean Air Act, that it was "appropriate and necessary," without regard to costs, to regulate hazardous air pollutants, such as mercury, from power plants. The specific mercury emission limits imposed on categories of power plants were established during subsequent phases of EPA's rulemaking under Section 112 based on EPA's explicit consideration of costs. Justice Scalia's opinion for a 5-4 majority strikes down EPA's determination that it could find regulation of hazardous air pollutants from power plants to be "appropriate and necessary" without consideration of costs. The Court states it was applying the traditional Chevron framework, under which it would normally defer to EPA's choice among reasonable interpretations of the ambiguous and "capacious" statutory test requiring an EPA finding that regulation be "appropriate and necessary." But, the Court finds EPA's interpretation of this test, as not requiring any consideration of costs, to "have strayed far beyond … the bounds of reasonable [statutory] interpretation." Michigan v.EPA 可能是法院应用sem>Chevron 判定EPA在其清洁空气法规范中通过了完全不合理的法定模糊性解决方案的第一个案例。
JusticeKagan在 Michigan v.EPA faults the Court for failing to give due deference under Chevron to EPA's decision as to when in its regulatory process it gives consideration to the costs involved in regulating hazardous air pollutants from power plants. While all nine Justices seem to agree that EPA must consider costs in its Section 112 rulemakings, and seem also to agree that EPA gave consideration to costs in later stages of its rulemaking, the dissent criticized the majority's "micromanagement of EPA's rulemaking," emphasizing that EPA reasonably determined "that it was ‘appropriate' to decline to analyze costs at a single stage of a regulatory proceeding otherwise imbued with cost concerns."
It is difficult to predict whether, based upon King v.Burwell 和Michigan vEPA, appellate courts might narrow the deference accorded to EPA's resolution of statutory ambiguities under Section 111(d). Those ambiguities arise in a quite different context than those considered by the Court. As one example, critics of the Clean Power Plan have argued that two different versions of Section 111(d) appear to have been signed into law, one of which critics claim should prohibit EPA from issuing regulations under Section 111(d) for sources of pollution already covered by other EPA regulations, such as hazardous pollutant regulation under Section 112. EPA sharply disagrees with its critics and defends its interpretation of which statutory version applies and the scope of permissible regulation under either statutory text. A related issue under the statutory version pressed by critics concerns whether the status of the hazardous air regulations under Section 112, during remand after Michigan v.EPA, should alter EPA's analysis the potentially competing statutory provisions. It remains to be seen what kind of Chevron deference courts will give to EPA's reasoned interpretations of the different versions of Section 111(d).
Critics also point to purported ambiguity in Section 111(d) as to whether EPA may prescribe carbon dioxide performance standards based on so-called "outside the fence" measures, and whether those standards may be determined on an average state-wide basis, rather than for individual sources. EPA's resolutions of these and related programmatic issues have occasioned widespread commentary and may feature prominently in future court challenges to the Clean Power Plan. Again, it remains to be seen whether the Court's recent cases will influence the extent of Chevron deference given by appellate courts to EPA's well-considered interpretation of its authority to craft the details of the Clean Power Plan under Section 111(d).
On one point, there should be little doubt. Section 111(d) expressly directs EPA to consider costs in establishing performance standards reflecting "the best system of emission reduction." Unlike in Michigan v.EPA ,EPA明确处理成本问题作为其拟议规则中考虑的一个因素。EPA 因此不应与清洁电源计划处理成本方式的任何可能挑战相容 。
chevron 可适用性当然仅仅是许多法律问题中美国可能面临的问题之一上诉法院和最终最高法院审查清洁电力计划时。 拟为法院设计的确切法律问题和诉讼时间直到奥巴马政府在今年夏天晚些时候发布最后清洁电力计划后才会开始引起关注。 国会可以介入并改变司法复习过程。 保持调控 。