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Congressional Leaders To FERC: “Did EPA Consult with You About Its Clean Power Plan?”

You are probably well aware of the Environmental Protection Agency’s (“EPA”) Clean Power Plan. You may not be aware that Congressional leaders are asking very pointed questions to the Federal Energy Regulatory Commission (“FERC”) about whether Commissioners were adequately consulted by the EPA about the EPA’s Clean Power Plan and “other major EPA rulemakings bearing on electric reliability.” Why should the EPA consult FERC? FERC is the federal agency primarily responsible for reliability of the nation’s electric grid. Congressional leaders are concerned, skeptical, and clearly less than satisfied with EPA’s apparent lack of consultation with FERC on these important electric reliability issues. In their most recent letter, Congressional leaders now seek responses from each individual FERC Commissioner to specific questions.

In a series of letters over the past few months (after Congressional hearings earlier in 2014), Senator Lisa Murkowski (Ranking Member, Energy & Natural Resources Committee), Congressman Fred Upton (Chairman, Energy & Commerce Committee), and Ed Whitfield (Chairman, Subcommittee on Energy & Power) have asked the FERC Chairman to provide detailed clarification “regarding the extent of consultation and coordination between [FERC] and the [EPA] as EPA developed its proposed ‘Clean Power Plan’ regulation for existing power plants and other recent major rulemakings that bear on electric reliability.” (November 24, 2014 Letter) In sum, these Congressional leaders continue to express significant concern and seek increasing levels of assurance from FERC that the EPA’s Clean Power Plan (and other rules) will keep the lights on. (FERC, through its Electric Reliability Organization, being the North American Electric Reliability Corporation [“NERC”], is ultimately responsible for the reliability of the nation’s electric grid.) Conversely, “EPA lacks the mission and the expertise to determine what is necessary to maintain the reliability of the nation’s electric grid.”

In the most recent letter dated December 22, 2014, Senator Murkowski, Congressman Upton, and Congressman Whitfield asked the other four FERC Commissioners, individually, to “provide your views on these matters” and “the details of your personal involvement or that of your staff” in matters set forth in the letter related to the relevant EPA initiatives. “As we see it, [the evidence] suggests an apparent pattern of limited substantive FERC input in the development of EPA rules that, unfortunately, have persisted at least since 2011.” The letter seeks responses to various questions, including:

• “What conclusions, if any, do you draw concerning the quality and impact of FERC’s interaction with EPA as it relates to ensuring that EPA rules do not unduly burden electric reliability?”
• “Was FERC staff permitted access to EPA documents and proposals or otherwise afforded an opportunity for considered interaction of the substance of the Clean Power Plan proposal?”
• “Based upon your personal knowledge, in its interactions with EPA concerning proposed or final major EPA rules that bear on electric reliability, has FERC acted adequately to protect electric reliability?”

Contributor: Kurt L. Krieger, Member, Steptoe & Johnson PLLC.

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