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Fracking and Alternative Energy

Troutman Sanders: FERC Offers EPA Advice On Commission’s Potential Role In Clean Power Plan

On May 15, 2015, the FERC commissioners sent a letter to the Environmental Protection Agency (“EPA”) addressing two areas where FERC could contribute to maintaining reliability under EPA’s Clean Power Plan (“CPP”).  FERC’s letter was in response to EPA’s Acting Assistant Administrator Janet McCabe’s May 6, 2015 letter to FERC regarding FERC’s role in the CPP and the steps the two agencies have already pursued thus far.

In its letter, FERC highlighted two areas in which it could play a role in maintaining reliability under EPA’s CPP: (1) under a “reliability safety valve” process – where affected entities can petition for temporary waiver or adjustments to emission requirements or compliance timelines; and (2) through reliability monitoring and assistance. Under the reliability safety valve role, FERC stated that it could review the petitions for waiver or adjustments to determine whether any threat to reliability existed without such an adjustment, or whether a petitioner’s corresponding mitigation plan would resolve a reliability violation or reserve margin deficiency. FERC emphasized that if EPA chose to adopt a reliability safety valve process, FERC’s role would be narrow and clearly defined, similar to its role when an entity seeks an additional year to comply with EPA’s existing Mercury and Air Toxic Standards.

In regard to reliability monitoring and assistance when reviewing proposed state plans to meet the guidelines in the CPP, FERC stated that any review process should rely primarily on existing processes for addressing reliability issues, such as those implemented by the North American Electric Reliability Corporation, reliability coordinators, or Regional Transmission Organizations and Independent System Operators. FERC noted that it could review the analysis conducted by those reliability organizations, suggest additional analysis or, in limited cases, conduct analysis itself. FERC also noted that it could also hold technical conferences or engage in other forms of outreach regarding reliability monitoring and assistance. Finally, FERC stated that it could even provide formal input upon EPA’s request, but noted that FERC’s role should generally focus on regional aspects of CPP compliance and respect the states’ authority over the proposed state plans.

A copy of FERC’s letter is available here. A copy of the EPA’s letter is available here.

About Troutman Sanders

Troutman Sanders is an international law firm with offices in North America, Europe and Asia. Founded in 1897, the firm’s heritage of extensive experience, exceptional responsiveness and an unwavering commitment to service has garnered strong, long-standing relationships with clients across the globe. These clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry.

Troutman Sanders lawyers provide counsel and advice in practically every aspect of civil and commercial law related to the firm’s core practice areas: Corporate, Finance, Litigation, Public Law and Real Estate. With more than 50 practice groups focused on specific aspects of these areas, the firm is defined by its considerable knowledge base and proactive approach to addressing legal and business challenges.

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