In a recent article, the well-respected Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, was quoted as saying that FERC does not have the authority to rewrite the goal of encouraging the development of qualifying facilities (QFs) because “[t]hat goal is embedded in the law.” PURPA Section 210(a) requires FERC to set rules “as it determines necessary” to encourage QFs. In other words, FERC, led by Chairman Kevin McIntyre, has significant discretion to determine what rules are necessary to encourage QFs beyond the basic purchase/sale obligation, as modified by the Energy Policy Act of 2005. QFs may be sufficiently encouraged by policies such as state renewable portfolio standards, state greenhouse gas reduction targets, net energy metering programs, community solar, and the like, such that FERC could find certain existing regulations and policies are no longer necessary or that new policies and regulations are merited.
A comparison of whether FERC could adopt all of the reforms that Senators Barrasso and Risch are proposing in their UPDATE PURPA Act (S. 2776) demonstrates the breadth of the power of FERC’s authority. Of course, changes to FERC PURPA regulations and policies can readily be “undone” by a new Commission, but legislative reform also can be reversed by a new Congress, and may be harder to achieve in the first place.
Continue Reading The UPDATE PURPA Act: What Could Kevin (McIntyre) Do?