Clean Energy & Energy Efficiency
The Trump administration made multiple attempts to override state clean energy and energy efficiency policies. State attorneys general responded by defending their states’ rights to promote clean energy and energy efficiency, protecting consumers’ rights to energy choices and fair dealing from energy companies, and objecting to large energy infrastructure projects that do not satisfy state and federal environmental requirements.
Attorneys general have taken action in several jurisdictions to protect states’ interests and consumers and defend environmental laws and rules.
Below is just a sampling of the many actions that attorneys general have taken to protect states’ clean energy rights; promote competition and protect consumers; and ensure environmental laws and rules are followed in the Federal Energy Regulatory Commission (FERC); federal and state agencies; regional transmission organizations that operate wholesale electricity markets under FERC’s jurisdiction (such as PJM and ISO-NE); federal and state courts; public utility commissions; and state legislatures.
Insisting that the Federal Energy Regulatory Commission & Federal Courts Respect States’ Rights to Shape their Power Systems
Five attorneys general wrote an op-ed in November 2018 asking FERC to refrain from undermining state clean energy mandates in regulating the wholesale organized markets operated by PJM Interconnection, the regional transmission organization for twelve eastern states and the District of Columbia.
Eleven attorneys general wrote a letter in October 2019 to FERC on opportunities to collaborate on the pursuit of affordable, reliable power and to insist that FERC eliminate barriers to competition for renewable energy generation and energy efficiency while respecting state authority.
Multiple attorneys general have repeatedly opposed (“PJM Interconnection’s Capacity Market”) efforts by FERC and PJM to put in place capacity market rules that prevent clean energy resources from participating in the market, unlawfully penalizing state power preferences and increasing costs for consumers.
The attorneys general of Connecticut and Massachusetts, along with New England state agencies and consumer counsels, in January 2020 submitted a letter to FERC, urging the Commission to require the regional grid operator, ISO-NE, to allow competition in the energy transmission system to reduce customers’ costs and to facilitate clean energy generation.
Three attorneys general sent a letter to PJM in July 2019 on its search for its next president and chief executive officer, saying that PJM’s next leader should be “an enthusiastic partner in states and localities’ efforts to address climate change, protect consumers, and promote green economic development.”
Nine attorneys general filed joint comments in December 2019 opposed to FERC’s proposed weakening of its regulations under the Public Utility Regulatory Policies Act (PURPA), which have played a critical role in expanding the market for renewable energy. The attorneys general of Massachusetts and North Carolina submitted their own state-specific comments to FERC on its proposal. In July 2020, FERC issued a final rule that largely ignored the concerns of the attorneys general in weakening PURPA’s regulations. In November 2020, FERC denied all rehearing requests for the proposal.
The attorney general of Illinois, and a coalition of seven attorneys general as amicus curiae successfully defended Illinois’ prerogative to implement state zero emission credit (ZEC) programs, which compensates qualifying nuclear generators for the zero carbon emissions attributes of their energy generation. The Second Circuit upheld New York’s similar ZEC program in 2018 against a challenge opposed by eight attorneys general.
The attorney general of Oregon in April 2019 successfully defended the state’s low carbon fuel standard, which seeks to reduce greenhouse gas emissions from use and production of transportation fuels in Oregon to at least ten percent lower than 2010 levels by 2025. The transportation sector is now the largest source of carbon emissions.
Five attorneys general in February 2020 filed an amicus brief supporting a FERC order that will allow energy storage resources to participate in wholesale energy markets, assisting states in the transition to the clean energy economy. In July 2020, the D.C. Circuit sided with the attorneys general in upholding the FERC order. More information about the litigation can be found here(“State Energy Storage Programs”).
Demanding that the Federal Energy Regulatory Commission Reform Its Process of Reviewing Gas Pipeline Applications
Twelve attorneys general filed a brief in support of a challenge to FERC’s practice of issuing tolling orders to extend its own deadline for deciding requests for rehearing. In the case of pipelines, FERC commonly delays its decision on requests for rehearing – necessary before a party can seek judicial review – while allowing pipeline construction to proceed. In June 2020, the D.C. Circuit sided with the attorneys general and ended FERC’s practice of issuing tolling orders in a decision that also extends to FERC’s use of tolling orders in electricity matters under the Federal Power Act. More information about the litigation can be found here (“Ending FERC’s Abusive Use of Tolling Orders under the Natural Gas Act”).
Eight attorneys general filed comments in July 2018 that the current FERC certification process for gas pipelines fails in a number of key respects, including approvals of gas pipelines that: are not needed; will cause significant environmental harms (including exacerbating climate change); and fail to consider clean energy alternatives.
The attorney general of New York filed comments in July 2018 that emphasized the harm landowners could suffer on the basis of FERC’s practice of issuing conditional certificates that allow natural gas companies to initiate condemnation activities before state environmental reviews have been completed.
Challenging Energy Department Efforts to Skirt its Energy Efficiency Obligations
Nine attorneys general succeeded in October 2019 in securing an order from the Ninth Circuit that the Department of Energy implement long-delayed energy efficiency standards for appliances and industrial equipment that will result in significant consumers’ savings and decreased pollution. More information about this litigation can be found here(“Appliances and Industrial Equipment”).
Pursuing State Objections to Energy-Related Projects
The attorney general of New York in December 2019, defended the New York Department of Environmental Conservation’s denial of a state water quality certification under the Clean Water Act for a proposed natural gas pipeline that would have impacted more than 250 streams and more than 80 acres of wetlands.
The attorney general of Washington, supported by a coalition of six other attorneys general, since 2018 has defended the Washington Department of Ecology’s denial of a permit for the construction of a coal export terminal near the Columbia River because of the project’s significant and unavoidable adverse environmental impacts.
The attorney general of Virginia prevailed, in the Supreme Court and over the Trump administration’s amicus brief, in June 2019 in his effort to defendVirginia’s decades-old ban on uranium mining, which is mostly used as fuel for nuclear power plants.
The attorney general of Rhode Island in January 2018 questioned the role of a new natural gas plant given the state’s greenhouse gas reduction goals.
Enforcing and Enacting State Consumer Protection and Environmental Laws
The attorneys general of Massachusetts and New Mexico brought lawsuits to protect consumers from deceptive marketing practices and scams run by some competitive energy and some clean energy companies. In August 2020, the Massachusetts attorney general reached a$10 million settlement with Starion Energy, which she had sued over its deceptive sales tactics that lured customers into expensive contracts with high electricity rates.
The attorney general of Virginia, in December 2019, enforced state environmental laws, regulations, and permits against a pipeline company for alleged violations of runoff and other water quality requirements related to pipeline construction. More information about this lawsuit can be found here(“Virginia”).
The attorney general of Pennsylvania, in December 2017, sued a fracking company for alleged unfair and deceptive conduct when dealing with impacted landowners. In 2020, the attorney general released a report on a two-year grand jury investigation into Pennsylvania’s fracking industry and the failure of state agencies to adequately regulate the industry and protect public health.
The attorney general of Illinois initiated legislation that was enacted in August 2019 to provide consumers with meaningful information to understand what choosing alternative electric and gas suppliers as their energy providers would mean for their utility bills.
The attorneys general of Connecticut, Illinois, Iowa, Michigan, and Virginia urged their states’ public utilities to comply with shut-off moratoria for electric power, natural gas, and water due to the coronavirus pandemic. The attorney general of Connecticut supported extending the shutoff moratorium in his state until February 1, 2021, and issued a statement criticizing the public utility’s decision to end the emergency moratorium in October. After the shut-off moratoria ended in their states, the attorneys general of Illinois and Maryland issued guidance to protect consumers.
The attorney general of Massachusetts called on the Department of Public Utilities in her commonwealth to delay any rate increases associated with pipeline replacement projects for gas customers for at least three months during the pandemic, and the attorneys general of Connecticut and Washington, D.C. warned residents to be aware of utility scams during the pandemic.
The attorney general of Virginia sent a letter to the state’s General Assembly in support of the Virginia Governor’s budget proposal to utilize Dominion Energy’s overearnings toward utility relief for Virginians. The attorney general of Washington issued a proposal to the Washington Utilities and Transportation Commission to ban utility late fees and utility service disconnections until at least the end of April 2021 to provide assistance to Washingtonians impacted by the pandemic.
The attorney general of Virginia reached a settlement with Essex Solar over environmental violations during construction and operation activities at its solar farm resulting in repeated discharges of pollution in state waters.
The attorney general of Massachusetts represented the state’s Department of Public Utilities (DPU) in litigation brought by a regional power producer challenging power purchase agreements (PPAs) that DPU had awarded in 2019 to Hydro-Québec. In September 2020, the Massachusetts Supreme Court sided with the attorney general, upholding the PPAs, which are important to advancing the development of the New England Clean Energy Connect transmission line.
The attorney general of Nevada warned Nevadans to be cautious of increasingly sophisticated utility imposter scams attempting to mislead and defraud consumers and small local business owners.
The attorney general of Vermont sent a letter informing the Governor’s Office that he would defend any constitutional challenges to the Global Warming Solutions Act (GWSA), including any brought by the Governor or his administration. The GWSA instructed a Climate Council to develop a Climate Action Plan to achieve meaningful reductions in greenhouse gas emissions. The letter was prompted in part by comments attributed to the state’s Secretary of Administration at the first meeting of the Climate Council that indicated the administration may seek judicial action on the GWSA.
Protecting Environmental and Consumer Interests in State Public Utility Commission Proceedings
The attorney general of Illinois, in July 2019, secured a $14 million settlement with a gas company that had overcharged customers with its costly pipeline replacement program.
The attorney general of Kentucky, in May 2019, successfully opposed a proposal from a utility in the commonwealth that would have raised customers’ monthly bills an average of nine percent a month.
The attorney general of Connecticut, in May 2019, secured the largest fine the Connecticut Public Utilities Regulatory Authority (PURA) has ever leveled against an energy company for violating the state’s consumer protection statutes in marketing its services. In August 2020, the attorney general submitted testimony to PURA calling on Eversource, a New England energy company, to forgo its planned 2021 rate hike request and commit to real cost saving measures for consumers.
The attorney general of North Carolina challenged in the North Carolina Supreme Court in April 2019 an order by the North Carolina Utilities Commission that allowed a utility to pass on to ratepayers the cost of cleaning up mishandled coal ash. In December 2020, the North Carolina Supreme Court issued a decision that sent the matter back to the North Carolina Utilities Commission to consider a proposal to require the utility and its shareholders to bear more of the costs of the coal ash cleanup. The attorney general of North Carolina released a statement saying he was pleased with the decision and would continue the fight at the Commission to ensure that the utility pays for the cleanup. The following month, the attorney general of North Carolina announced a settlement with the utility that will save consumers over $1 billion as the company cleans up the coal ash.
The attorney general of Michigan has saved utility consumers more than $300 million in proceedings before the Michigan Public Service Commission since taking office in January 2019 and continues to help save consumers money in rate cases, including, in January 2020, through securing donations to nonprofits that helps customers pay utility bills.
The attorney general of Minnesota, in January 2019, requested that the Minnesota Public Utilities Commission reject a utility’s proposed pilot program for a green tariff for renewable natural gas because the program would be costly for customers and would not promote the state’s climate and clean energy goals.
The attorney general of Michigan filed testimony, in February 2019, opposing a utility’s nearly $10 million proposed rate increase as the proposal saddled consumers with costs unrelated to providing electricity and did not pass on corporate tax savings from the 2017 tax legislation to consumers. The attorney general filed testimony again in July 2020 opposing a utility’s $244 million annual rate increase request, calling it excessive and unnecessary.
Similarly, the attorney general of Massachusetts, in March 2019, challenged a ruling by the Massachusetts Department of Public Utilities that the corporate tax savings for the first half of 2018 could not be passed on to consumers because of the department’s general principle against retroactive ratemaking.
The attorney general of the District of Columbia filed comments of the Department of Energy and Environment on Behalf of the District of Columbia Government in October 2018 urging that infrastructure decisions be made in line with the District’s clean energy goals.
The attorney general of Massachusetts, in December 2018, successfully supported the state’s energy efficiency plan that will reduce greenhouse gas emissions and save consumers over $8 billion after, in July of the previous year, participating in grid modernization proceedings advocating for, among other things, access to data to maximize possible customer response during peak demand periods in conjunction with advanced meters.
The attorney general of North Carolina, in March 2019, requested that a utility revise its long term planning document to take into account the costs to ratepayers from climate change caused by the utility’s reliance on natural gas power generation.
The attorney general of Connecticut submitted comments to PURA urging regulators to consider questions of equity and fairness when deliberating the further implementation of smart meters in Connecticut, noting that the costs and benefits of modern energy infrastructure must be shared fairly by all consumers. The attorney general also submitted testimony to the Energy and Technology Committee of the Connecticut State Legislature urging action to strengthen ratepayer protections.
The attorney general of New Mexico successfully opposed the construction of a new gas-fired generation plant. The attorney general emphasized that the plant would not provide a net public benefit and that the utility had not considered its obligations under New Mexico’s Renewable Portfolio Standard anywhere in its application. The attorney general also noted that the New Mexico Public Regulation Commission has taken a new stance that new fossil fuel generation is not in the public interest. The presiding administrative law judge agreed, and the New Mexico Public Regulation Commission adopted the Recommended Decision.