This Week on TalkingFish.org – May 25-29

May 29, 2015 by  | Bio |  Leave a Comment

May 26 – Upcoming Paris Climate Negotiations: Will New England Fishermen Sea Change? – While thousands of miles separate Paris from New England, the issues at the forefront of COP21’s agenda hit close to home. In fact, New England fishermen have a lot at stake in the upcoming climate negotiations.

May 28 – Opposition Mounts to Controversial Fishing Bill – Fishing groups and conservationists are voicing concerns about a bill set for a vote Monday in the U.S. House of Representatives that critics say could seriously undermine the law that has guided sustainable fishing in the country for decades.

May 29 – Fish Talk in the News – Friday, May 29 – In this week’s Fish Talk in the News, NEFMC Habitat Committee meeting is on Monday; opposition to H.R. 1335 increases; Rep. Young dismisses Obama’s veto threat; NOAA Administrator defends accuracy of stock assessments; strict regulations bring back North Sea cod; study finds that 13 companies control 40% of largest and most valuable global fish stocks; Maine fishermen welcome new limits on striped bass; Atlantic menhaden are dying off in CT rivers; fish ladders help alewives move up river; NOAA announces new trap/pot gear and gillnet regulations; NOAA announces new small mesh multispecies catch limits; Maine considers sea urchin fishery swipe cards; Greenpeace ranks canned tuna brands for “ocean-friendliness”; researchers develop a model to assess ecological impact of dams on fish populations; and seal pupping season is in full swing.

Farmland vs. Asphalt

May 26, 2015 by  | Bio |  2 Comment »

Proposed Site of Exit 4 Development 5-22-15

Proposed Site of Exit 4 Development 5-22-15

Valuable farmland in Vermont is under siege. A proposal is on tap to build more than 1 million square feet of hotel, conference center, industry, shops and houses on very valuable farmland at a rural highway exit.

CLF joined over 50 local residents at a contentious initial hearing for the project. Going forward, CLF and partners will participate in the state permitting (Act 250) proceedings.

Vermont’s  thriving farm economy, our healthy environment and our healthy climate all depend on good farmland. Vermont’s many acres of valuable farmland support a wide and diverse range of agriculture. From apple orchards and berry farms, to community gardens, dairy, and livestock farms, these all rely on good quality farmland.

That good quality farmland pays us back in more than just the food and crops it grows. Local farms help Vermont be more resilient to the effects of climate change. They also help reduce carbon emissions that contribute to global warming. And there is not a single Vermonter who doesn’t appreciate and value the open space and broad vistas that many of our farms provide. Our farms make Vermont unique. And our farms need good farmland to thrive.

Unfortunately good farmland is increasingly in short supply in Vermont. Good farmland takes thousands of years to create. Though Vermont is fortunate to have had the help of glaciers and rivers many years ago to create the valuable asset we now have, it is our responsibility to keep those assets intact and available for future generations.

As the impacts of climate change grow more severe, maintaining our farms and our ability to grow food and crops becomes more important than ever.

As Vermont moves out of the recent recession, the pressures increase on Vermont farmland. Pavement is not an agricultural product. Yet traveling along any of Vermont’s major roadways shows that farmland outside of town is sprouting more concrete than crops.

Bulldozing our rural farmland for massive new developments makes it harder to farm the land that remains. Farmers should not be left trying to piece together a viable farm from the few small parcels left behind.  Instead Vermont should strengthen the ways it encourages development in town and provide stronger protection for farmland outside of town. This helps farms create a bulwark against sprawling development. Keeping more services and buildings in town, surrounded by farms nearby, fosters community and helps us tackle global warming pollution. Our food is closer, providing more opportunities to drive less and burn less polluting fossil fuels.

Unfortunately, some plans for over-developing valuable farmland move Vermont in the wrong direction. The massive development planned for farmland at Exit 4 in Randolph is just one example. Others include a planned new truck stop and convenience store near the highway outside of Montpelier, and a new shopping mall on Route 7 south of Rutland. All of these are chewing away at farm fields.

Vermont’s landmark land use law, Act 250, provides valuable protections for farmland. As with water quality, air quality and community resources, Act 250 prohibits some building on valuable farm resources because it is just too damaging to the resource. In other situations, Act 250 requires projects to be designed in a way that leaves valuable agricultural soils available for farming.

The effectiveness of the Act 250 protections for valuable farmland is being sorely tested. Last year, in South Burlington, a developer sought a determination that a forty acre field with a farmhouse and barn on site was not in fact suitable for farming. Thankfully that request was rejected.

At the Randolph highway exit, the plan is to build over one million square feet — roughly equal to the size of 10 big box stores — in a rural and fairly undeveloped area, with over 100 acres of exceptionally high quality farmland.

When it comes to farming, Vermont should not erode its strong Act 250 protections. Instead Vermont’s support for farming should be as hardworking as its farmers. Our actions speak louder than our words.  We cannot say we support farming if our decisions drive more and more farmers off the land.

The Alternatives to New Natural Gas Pipelines

May 15, 2015 by  | Bio |  Leave a Comment

Now that we’ve made it through the winter, policymakers in Massachusetts are taking a look at the state of energy in the Commonwealth and trying to sort out what to do about the big energy policy questions currently on the table. First among these questions is what, if any, public policy support and funding should be invested in natural gas pipeline infrastructure.

How policymakers answer this question is important because now, more than ever, we must look beyond fossil fuels and ensure that our energy system is one built on the cleanest energy sources. Overinvestment in natural gas is simply a bad bargain for our climate, for consumers, and for our economy.

For several years now CLF has been calling for caution in the pipeline debate by debunking myths presented by pipeline proponents, exploring the environmental and economic ramifications of overbuilding natural gas infrastructure, and highlighting alternatives to pipeline investments. I had the opportunity this week to present CLF’s broad vision for the future of energy in New England to the Massachusetts legislature’s Joint Committee on Telecommunications, Utilities, and Energy. The plan I presented to the legislators:

1. Strategic public investment in the resource with the best rate of return for ratepayers: Energy Efficiency.

2. Strategic public investment in clean electric generation that is not tied to fossil fuel prices: Renewables.

3. Encourage the electric and gas markets to utilize existing gas storage and pipeline to meet peak gas demand.

4. Overall, the need for new gas pipeline has not yet been demonstrated, but if it occurs, we should begin with small pipeline upgrades and peak storage projects first.

5. If we still need more pipeline capacity after doing all of the above, go incremental first (by increasing the capacity of existing pipelines), and let the markets support the capital costs rather than putting them further on the ratepayers.

CLF is skeptical about new gas pipeline infrastructure buildout and efforts to put additional public money toward such projects. This skepticism is based in 1) the climate implications of entrenching gas further in our energy system, 2) the short-term economic effects of building new infrastructure when we’re not maximizing the infrastructure we already have, and 3) the medium- to long-term economic effects of fossil fuel prices dictating our energy prices.

Strategic investments in renewable energy sources will reduce our reliance on climate-changing fossil fuels. Photo credit: CLF

Strategic investments in renewable energy sources will reduce our reliance on climate-changing fossil fuels. Photo credit: CLF

Rather than more investments in fossil fuel-based energy, then, let’s instead invest wisely in energy efficiency and long-term contracts for renewable energy. And where the use of natural gas is currently necessary, let’s use LNG to supplement natural gas supply during periods of peak usage. Expanding our natural gas pipelines and our reliance on this carbon intensive and price volatile fuel should be New England’s last resort.

Effective, clean and economic alternatives are available now and they’re certainly a better deal for our climate and for ratepayers in Massachusetts and across New England.

My full slides and written testimony are available here and here. And, speaking of this winter, check out this paper collecting my colleague Christophe’s blog series on the energy lessons to be drawn from the performance of New England’s energy markets this winter.

Vermont is Burning the Furniture

Apr 30, 2015 by  | Bio |  Leave a Comment

photo courtesy of Vicki Burton @ flickr.com

photo courtesy of Vicki Burton @ flickr.com

Vermont legislators are scrambling to plug the budget – and there are plans to raid funding for heating efficiency to do that. This is troubling on many levels. It raids monies from the Regional Greenhouse Gas Initiative (RGGI) to backfill another shortage. It also comes on top of the proposal to shortchange energy efficiency as part of otherwise helpful energy legislation that would expand renewables and reduce fossil fuel use.

The end of a legislative session always brings out some of the worst ideas. It seems that as the warm weather approaches in Vermont, some lawmakers are keen to throw the furniture in the fire to eke out that last bit of heat after the woodshed is empty.

Burning furniture is burning money. Energy efficiency consistently delivers the biggest bang for the buck by reducing pollution and saving money for all of us. Smart investments should not be held hostage to close budget gaps.

A vote is expected on Friday May 1. If you are in Vermont, you can call your Senator and leave a message with the Sergeant-at-Arms at 802-828-2228 and tell your Senators to leave efficiency funding alone.

A Single Word Could Restore Maine Energy Efficiency Funding

Apr 8, 2015 by  | Bio |  Leave a Comment

A recent decision by the Maine Public Utilities Commission (PUC) severely limits energy efficiency funding in the state. If the decision stands, Efficiency Maine Trust – the public entity that runs energy efficiency programs – would see its near-term budget cut from about $60 million to $22 million. This drastic cut in energy efficiency funding would essentially eliminate the cornerstone of sound energy policy in Maine. Fixing this mistake is vital to the state’s energy future.

The fix is easy (the entire fiasco boils down to the single word “and”), but the backstory is more complicated.

The Backstory

Energy efficiency works 

shutterstock_129267746 lightbulbThe more energy consumers use, the more energy must be generated. Whether that energy comes from coal, natural gas, or renewable sources, the cost to generate that energy goes beyond the dollar figure on your utility bills. Part of that cost is sunk into the generation facilities themselves, and part is in the poles and wires needed to bring that energy into our homes and businesses.

Energy efficiency has the power to reduce the overall demand for electricity by encouraging technological advancements that produce the same service while using less energy. Less overall energy use means less transmission and distribution build out, less energy generation, and, ultimately, a lower energy bill for consumers.

Energy efficiency saves ratepayers money, improves the environment, stimulates commerce, and creates jobs. Since 2011, Efficiency Maine has saved ratepayers almost $1 billion in lifetime energy savings while creating thousands of jobs. Over their lifetime, the projects Efficiency Maine helped install in 2014 alone will save more than 1 billion kilowatt hours of energy consumption – the equivalent of more than 22 million gallons of oil. This translates to nearly $200 million in ratepayer savings. Every dollar Efficiency Maine invests provides at least three dollars in return.

All this raises a pressing question: Why would the PUC slash funding for energy efficiency?

How we got here

In 2013, the Maine Legislature passed the bipartisan Omnibus Energy Act. One piece of this legislation mandates that Maine, through Efficiency Maine, fund and pursue all maximum achievable cost-effective energy efficiency.

Let’s be clear – that is the law.

A single phrase of this voluminous statute determines how much annual funding Efficiency Maine receives to meet (or not) the law’s mandate. This funding, which is included in electricity rates, is capped at “4% of total retail electricity transmission and distribution sales in the State.”

The current fiasco all boils down to what “total retail electricity transmission and distribution sales” actually means. If you find that phrase confusing, you’re not alone. For those working in the electric industry, “retail electricity” sales mean sales of electricity generation. And “transmission and distribution” sales mean sales of the transmission and distribution of electricity. But mashing them together creates a phrase not used anywhere in Maine law, or in any other law in the country.

The problem stems from a missing “and.” The phrase as originally drafted by the legislature was: “total retail electricity and transmission and distribution sales.” That phrase means something. So what happened to the “and”? No one knows. But somewhere along the line, without any discussion, debate, or request, it disappeared from the final version of the bill – after a legislative committee approved a version containing this critical conjunction.

A matter of interpretation?

So, what does the PUC have to do with this? The 2013 Omnibus Energy Act directs the PUC to make a rule that interprets this phrase and thus the amount of energy efficiency funding. In making this rule, the PUC must follow what the legislature intended when it wrote the law. If what the law says is clear, the PUC need look no further than the text. But if the law is not clear, the PUC looks to the bill’s legislative history to determine what the legislature intended the law to mean.

As it turns out, the only people who have found that confusing phrase absolutely clear are two out of three PUC Commissioners. They read the language to include sales from only transmitting and distributing electricity, not sales from generating the electricity. That reading translates to a huge difference in how much money goes toward Maine’s energy efficiency initiatives – a $38 million difference.

Even as written – in other words without the “and” – the PUC got this wrong. The only thing that’s clear about the phrase is how unclear it is. That means the PUC must look to the legislative history to see what the legislature intended. And no one – not even the legislators who drafted the bill – disputes that the legislature intended much greater funding for energy efficiency by including sales from both electricity generation and electricity transmission and distribution.

The Future

Frustrated yet? There’s more.

The Maine Legislature now has the opportunity to fix the PUC’s decision. Doing so would save Maine ratepayer dollars. Unfortunately, as the Portland Press Herald reported recently, prospects for an easy legislative fix look dim.

Remember, the 2013 Omnibus Energy Act, which mandates energy efficiency measures, passed with bipartisan support. Legislators have introduced an amendment to the Energy Act that simply reinserts the word “and” – as the legislature originally intended.

But other lawmakers are trying to block this version. In an op-ed in the Portland Press Herald, House Minority Leader Kenneth Fredette (R-Newport) admitted that the Energy Act was intended to increase the funding cap to “roughly $60 million” instead of the roughly $22 million under the PUC’s interpretation. Nonetheless, he claims that the PUC correctly interpreted the law it was given, mistake and all.

What Representative Fredette and other lawmakers are now arguing is this:

  1. Yes, the Energy Act meant to increase energy efficiency funding.
  2. Yes, the PUC interpreted it to severely limit this funding.
  3. Yes, we the legislature should fix this.
  4. But NO, we are not going to simply insert a single word in order to do what a bipartisan legislature intended in the first place when it passed the law.

 

Why not? Governor Paul LePage. He is almost guaranteed to veto a fix of the bill because he does not want to invest more in energy efficiency. The legislature might not garner the two-thirds vote needed to override that veto, let alone pass the amended version in the first place.

What’s the alternative? A bill that compromises further on sound energy policy in Maine. To be clear, the original Omnibus Energy Act was itself the result of bipartisan compromise – which was meant to vastly increase energy efficiency funding. Now, because of one word, the governor and Republican legislators want another bite at the apple.

Tell your legislators to pass the clean fix of the bill and restore Maine energy efficiency funding! You can find your legislator’s contact information here. Help restore adequate funding for energy efficiency in Maine!

Gas Pipelines — Misinformation and High Costs

Mar 26, 2015 by  | Bio |  Leave a Comment

The high cost and pollution from new gas pipelines are no secret. They deliver a clear reminder that investing in new fossil fuels is a bad bet for our energy future – bad for the environment and bad for our pocketbooks.

When costs ballooned for Vermont Gas Systems’ proposed new pipeline, the company failed to tell regulators, or the public, until months later. Vermont Gas is now facing penalties for the failure.

photo courtesy of Tom @ flickr.com

photo courtesy of Tom @ flickr.com

Unfortunately for the public, only the Public Service Department and the Company were allowed to present information during the hearing to evaluate the penalty. Since the two of them already agreed to a penalty, the proceeding took on an air of the sound of one hand clapping. A few concerned citizens resorted to waiving posters in the back of the room with questions they’d like answered.

At the hearing, a Vermont Gas executive acknowledged the loss of faith and lost credibility that resulted from not disclosing the cost increase sooner. Sadly that credibility was not restored when the same executive had to acknowledge that cost figures reported to regulators were not accurate.

A new gas pipeline is a big energy project. All big energy projects need to demonstrate that they advance the public good. With high costs and misinformation, confidence is sure waning on this project.

Smart Moves for Maine’s Electricity Grid

Mar 10, 2015 by  | Bio |  2 Comment »

Several years ago, Maine took a small but significant and unprecedented step toward modernizing its electric grid. Rather than implement a traditional “poles and wires” transmission build out to address growing electricity needs in the Boothbay Harbor region, the Maine Public Utilities Commission (PUC) approved an innovative pilot project.

GridSolar's Boothbay Pilot program is finding innovative ways to meet electricity demand without an expensive transmission rebuild.

GridSolar’s Boothbay Pilot program is finding innovative ways to meet electricity demand without an expensive transmission rebuild.

The Boothbay Pilot relies on so-called non-transmission alternatives, or NTAs, to reduce electric load in the region by 2 megawatts (MW). Using these alternatives eliminated the need for an $18 million transmission rebuild, while also improving energy efficiency, reducing greenhouse gas emissions, and saving ratepayers approximately $3 million per year. A smart move. Now, the PUC has the opportunity to take many of the pilot’s concepts statewide.

Non-transmission alternatives are, as the name implies, alternatives to the traditional way of distributing electricity. For most of Maine’s power grid, state-regulated transmission and distribution utilities, such as Central Maine Power, transmit bulk electricity from a generation source – for example, natural gas, oil, or hydro – through power lines, substations, and distribution lines to your home. To ensure reliable and constant energy flow the power grid must be continually maintained and at times rebuilt or upgraded to meet demand.

Instead of expending ratepayer dollars on expensive transmission solutions, electric power needs can be met by various NTAs, including energy efficiency, passive electric power generation closer to the consumer (like solar panels or wind turbines), and active devices that can be switched on when needed to reduce load on the grid. These alternatives create a more efficient grid and reduce total power needed.

For the Boothbay regional Pilot program, GridSolar developed just such an NTA solution. In a case before the PUC, GridSolar has petitioned to become the state’s lead developer of smart grid technologies – a new entity allowed under the Maine Smart Grid Policy Act. While PUC staff recently recommended that the Commissioners deny GridSolar’s petition – in favor of putting the coordinator’s role out to bid for proposals – their report nonetheless recognizes the value in having an incentivized actor forwarding non-transmission alternatives to utilities’ business-as-usual transmission projects.

CLF is an intervening party to this case and has advocated for the PUC to create just such a statewide NTA Coordinator. Designating this role is another small but critical step toward a more efficient and modern energy future for Maine. Another smart move on which we should all agree.

Time to Act: Guest Post by Olivia Gieger

Mar 6, 2015 by  | Bio |  Leave a Comment

Last fall, CLF, Mass Energy Consumers Alliance, and four youth plaintiffs filed suit against the Massachusetts Department of Environmental Protection for failing to fully comply with the Global Warming Solutions Act. In this guest post, one of the teen plaintiffs, Olivia Gieger, explains why she’s joined the court fight to defend her climate future.

As a sophomore in high school, I am all too familiar with procrastination. That group project assigned a month ago and now due tomorrow? We had a month; why start early? It’s a group project; won’t someone else do it? In my experience, I can tell you, those all-nighter–inducing group projects never turn out well.

Don’t be the sophomore in high school.

This 2015, we have the technology to know that atmospheric carbon dioxide levels are rising at an alarmingly fast rate. We’ve had this technology since 1960 when carbon dioxide levels were at 315 parts per million (ppm). Now they’re at 395 ppm(1). We know that this carbon dioxide is a greenhouse gas, which captures heat energy and slows its release from air. While greenhouse gases are necessary in our atmosphere and are needed to keep us warm, an unnatural amount is strikingly dangerous. More greenhouse gases mean more heat held in the atmosphere, which means a hotter Earth.

Side effects of global warming are countless, and they are happening today. Sea levels are rising. Ice caps are melting. Forest fires are raging. Downpours are constant in the Northeast, yet droughts are ever more present in the West(2).

But, really, why should I care? Melting ice caps and a couple less polar bears don’t really affect me, right? I don’t live in California, so those wildfires don’t affect me, either. But other people are being impacted by the wildfires, the melting ice caps, the rising temperatures. The scary reality is that we all are. I may not know anyone who lives in California, but that’s where my food is grown. If there are droughts and wildfires, how is my family supposed to get some of our favorite fruits and vegetables that don’t grow here in Boston during the winter? And those melting ice caps affect a whole lot more than polar bears. When they melt, sea levels rise – not just at the North Pole, but globally. This means my favorite beaches on Martha’s Vineyard will be washed away. It means my favorite restaurants and museums – even my neighborhood – here in Boston will be underwater in my lifetime.

In order to do something about these concerns, I have filed a lawsuit, along with three other youth plaintiffs, against the Massachusetts Department of Environmental Protection (DEP), because DEP has been procrastinating in fully complying with the Global Warming Solutions Act (GWSA). The GWSA requires DEP to pass regulations establishing declining greenhouse gas emissions limits for Massachusetts. But DEP has not done so. The purpose of the lawsuit is to force DEP to comply with the law, because it appears unwilling to do so on its own. Thanks to the support from my lawyers at Sugarman, Rogers, Barshak, & Cohen and Our Children’s Trust, we will ensure that DEP complies with the law.

So now my question is why? Why are we as a society being sophomores in high school about this? Why are we just waiting for someone else to solve this massive problem? We know the problems, and, better yet, we know the solutions. Using clean, renewable energy is one solution. Enough energy from the sun enters the Earth in one hour to power it for an entire year(3). This energy is unlimited, harmless to the environment, and virtually free. Sounds to me like it tops fossil fuels any day. It’s not just solar energy, however – wind power and hydropower are also unlimited and harmless to the environment. So why then are we oblivious to this? Why are we so incapable of making a change? We need to stop procrastinating. It is long past the time to include, encourage, and execute programs with wind and solar power as the energy of America. We cannot afford to be sophomores anymore; it’s time to graduate.

Works Cited:

  1. Pieter Tans, NOAA/ESRL (www.esrl.noaa.gov/gmd/ccgg/trends/) and Dr. Ralph Keeling, Scripps Institution of Oceanography (scrippsco2.ucsd.edu/).
  2. “The Current and Future Consequences of Global Change.”Global Climate Change: Vital Signs of the Planet. National Air and Space Association, n.d. Web. 14 Nov. 2014.
  3. “Solar Power Energy Information, Solar Power Energy Facts.”National Geographic. N.p., n.d. Web. 16 Nov. 2014.

Questions and Answers On CLF’s Supreme Court Filing

Feb 20, 2015 by  | Bio |  Leave a Comment

On February 19, I posted a blog about the fact that CLF had joined with several state consumer advocates and with other environmental organizations to file an amicus curiæ brief in the United States Supreme Court. CLF and the others are urging the Court to hear an appeal from a D.C. Circuit Court ruling about the legal authority of the Federal Energy Regulatory Commission (FERC) to regulate Demand Response (DR) in wholesale electricity markets.

Since that blog was posted, I have received a number of questions from environmental advocates, legislators, and others about the case. Here are some of the most interesting questions, along with answers. (In order to understand what I am discussing here, you will want to read the earlier post first.)

Question: You said that CLF (and others) are asking the Supreme Court to hear this appeal, but that the Supreme Court has discretion whether or not to accept the case. What are the odds that the Supreme Court will hear the case?

Answer: On the one hand, the Supreme Court gets thousands of these petitions for certiorari per year, and hears only about 70-80 cases per year. Overall, the Supreme Court grants certiorari in about 1% of ordinary, routine cases in which it is asked. On the other hand, the Supreme Court grants certiorari in fully 70% of cases where the Solicitor General urges the Court to take a case, and that is what happened in this case (the SG asked). As I indicated in my Feb. 19 blog, the Solicitor General’s petition for certiorari was one of two separate cert. petitions filed the same day, on January 15.

Question: How come there were two different certiorari petitions filed the same day? What does that mean?

Answer: A group of DR providers (including EnerNOC and others) filed one cert. petition, because they would be harmed if the Circuit Court decision were not overturned. The Solicitor General filed a separate cert. petition on behalf of FERC, saying that FERC would be hurt if its legal jurisdiction were improperly constricted by the Circuit Court’s ruling.

In my earlier blog, I linked to both of the cert. petitions filed on January 15. If you read both of them, you will see that they focus on two very different areas.

The first cert. petition, filed by EnerNOC and other DR providers, focuses on the law. Their legal argument is simple. In 2005, Congress amended the Federal Power Act (FPA) to give FERC authority to regulate DR. Thus, the Circuit Court is wrong when it ruled that FERC lacks authority to regulate DR.

In contrast, the Solicitor General’s brief tells the Court why the case is important and why sound public policy supports the Supreme Court hearing the case: if DR is excluded from the wholesale electricity markets, it will cost ratepayers billions of dollars.

And CLF’s brief points out that if DR is excluded from the wholesale electricity markets, it will result in millions of metric tons of greenhouse gas emissions that could have been easily avoided.

Question: Assuming the Supreme Court hears the case, what is the likely outcome?

Answer: The legal argument that the 2005 amendments to the FPA gave FERC jurisdiction over DR is compelling. Also, when it comes to the merits of a case, the track record of the Solicitor General is excellent. During the time that John Roberts has been Chief Justice, the Solicitor General has been on the winning side of 90% of the cases she has been in. (But note that the SG does not participate in every case before the Supreme Court.)

This is one of those cases in which the legal arguments and the public policy arguments really align on the same side. The only parties who will express a contrary view are the owners of dirty, expensive old fossil fuel generating plants, who stand to lose money if DR continues to play a significant role in wholesale power markets.

Question:  Assuming the Supreme Court hears the case, what is the likely timing?

Answer:  The decision about whether or not to hear the case will almost certainly be made during the current Supreme Court term, which ends in late June.  If the Court does grant cert., the case would be heard and decided in the next term, which begins in early October 2015 and runs through late June 2016.

Question: There have been a lot of controversial Supreme Court decisions in which the Supreme Court has divided 5 to 4. Is this likely to be one of those?

Answer: I don’t think so. The issue of FERC authority is not really one that is susceptible to the familiar liberal-conservative divide. The last time the Supreme Court addressed a similar issue of FERC jurisdiction was 2002. That earlier case was New York v. FERC, 535 U.S. 1 (2002). The issue then was very similar to the issue now – whether FERC had jurisdiction to issue its Order 888. The Court ruled in favor of FERC.

Of the nine Justices who were on the Court in 2002, four are still there today: two liberals (Ginsburg and Breyer) and two conservatives (Scalia and Thomas). All four joined those portions of the Court’s opinion that used expansive language to provide a generous, broad reading of FERC authority under the FPA.

If the Supreme Court does take the case (which I believe is likely, but not certain), I would not be surprised if the ruling in favor of FERC were unanimous. The legal issue is not very complicated. And although some of most widely publicized Supreme Court decisions are decided by a 5-4 vote, even now nearly half of all Supreme Court decisions are unanimous. This could be one of those unanimous decisions.