Public Policy Mechanisms Whitepaper

White Paper

Dated: December 18, 2015

Posted in:

Authored by:

  1. Executive Summary

Across New England, state governments adopt and then implement policies and practices they determine to be in the public interest.  Some relate to energy and environmental objectives.   For example, all six New England states have enacted laws to support resources that use renewable sources of fuel.  Another public policy objective incorporated into some laws and regulations is the reduction of so-called greenhouse gas emissions, primarily carbon dioxide.

Public policy resources are generally more expensive than other resources with which they compete.  Public policy resources may also have operating characteristics that make participating in and earning profits from the competitive market more challenging.  Accordingly, states may provide economic support or incentives to certain types of electric generation resources that are able to satisfy these and other public policies.  This occurs in the context of a federally regulated competitive wholesale market that is designed to be resource neutral and to identify which resources will serve consumers at the lowest cost.

This paper identifies a range of mechanisms available to states to support public policy resources, such as clean energy standards, contracting, and cap and trade programs.  It describes each mechanism’s mechanics, as well their interaction with the competitive wholesale markets and some legal and regulatory issues.

Aside from which mechanisms states may prefer to use to support public policy resources, New England is challenged by the fact that many public policy resources are located in geographic areas, such as northern Maine for example, that are distant from where consumers use power.  Overcoming these geographical and technical issues will require incremental transmission infrastructure to reliably deliver such power to consumers.  Accordingly, this paper explains New England’s transmission-related challenges and issues and a few innovative approaches other regions have used to solve similar challenges.

Finally, because a number of public policy objectives can be achieved to some degree by reducing consumers’ use of system power, including from clean energy sources located distant from where most energy consumers live and work, this paper describes New England states’ investment in energy efficiency and distributed generation, such as local solar, and associated issues.

This paper does not opine about the relative merit or advantages and disadvantages of each mechanism or approach:  whether and to what extent a particular set of approaches satisfies a state’s objectives requires state officials’ judgment.

Document Source Citations

[1]           While Vermont has not restructured its electricity industry, its utilities’ voluntary participation in the ISO New England markets and the rates its transmission utility may charge remain under the jurisdiction of the Federal Energy Regulatory Commission.

[2]           Resources are typically deemed “renewable” based on a combination of fuel source and technology type.  This introduction section discusses policies to support the use of renewable resources by identifying the eligible technology types, which are predominately based on the type of fuel source.  Accordingly, some policies and associated mechanisms can be described as focused on a resource’s input.  In contrast, other policies that support emissions reduction, discussed below, can be described as focused on a resource’s output.

[3]           Massachusetts Department of Energy Resources, Annual RPS Compliance Report for 2003, February 15, 2005, at 1, available at also Wiser, R. et al., Lawrence Berkeley National Laboratory, Evaluating Experience with Renewables Portfolio Standards in the United States, March 2004, at 1, available at

[4]           Conn. Gen. Stat. § 16-245a et seq.; 35-A Me. Rev. Stat.§§ 3210, 3210-C; Mass. Gen. Laws ch. 25A, § 11F; New Hampshire Statutes, Chapter 362-F; Rhode Island Gen. Laws §§ 39-26 et seq.; 30 V.S.A. §§ 8004, 8005, 8005a.

[5]           Adapted from Black, J., ISO New England, Outlook for Renewable Resources in New England: Rhode Island Technical Session, August 27, 2013, at 6, available at

[6]           Some air regulations also prescribe specific emission control strategies, including the use of “reasonably available” or “best available control technology” or requiring attainment of the “lowest achievable emission rate.”  The paper focuses on other, industry- or economy- wide mechanisms.  For more information on air permitting requirements, see U.S. EPA RACT/BACT/LAER Clearinghouse at

[7]           The Regional Greenhouse Gas Initiative and the Clean Power Plan are discussed in Section V.A, at 37-41.

[8]           As discussed below, proceeds collected through emission reduction mechanisms are also used to support energy efficiency programs, invest in renewable energy resources, and mitigate consumer cost impacts.

[9]           Other barriers to entry include regulatory risk, a lack of revenue compensation mechanisms, a lack of markets in which to participate, and a lack of appropriate price signals.  See  Bhatnagar, D., et al., Market and Policy Barriers to Energy Storage Deployment (September 2013), available at

[10]          See Petition for Approval of Two Long-Term Contracts to Purchase Wind Power and Renewable Energy Certificates Pursuant to G.L. c. 169, § 83 and 220 C.M.R. § 17.00 et seq., Testimony and Exhibits of Susan F. Tierney, Ph.D., on behalf of Massachusetts and Nantucket Electric Companies d/b/a National Grid, Docket No. D.P.U. 10-54 (June 4, 2010), at 83-88 (“Tierney Cape Wind Testimony”).

[11]          For example, a state’s Renewable Energy Investment Fund should “foster the growth, development and commercialization of renewable energy sources, related enterprises and stimulate demand for renewable energy and deployment of renewable energy sources that serve end use customers in this state and for the further purpose of supporting operational demonstration projects for advanced technologies that reduce energy use from traditional sources.” Conn. Gen. Stat. 16-245n(c).)

[12]          See, e.g., the following policy objectives reflected in the statutory codes of New England states: “[T]o encourage the use of renewable, efficient and indigenous resources, it is the policy of this State to encourage the generation of electricity from renewable and efficient sources and to diversify electricity production[.]” 35-A M.R.S. § 3210; “. . . (i) the development and increased use and affordability of renewable energy resources in the commonwealth and the New England region; (ii) the protection of the environment and the health of the citizens of the commonwealth through the prevention, mitigation and alleviation of the adverse pollution effects associated with certain electricity generation facilities; (iii) the maximization of benefits to consumers of the commonwealth resulting from increased fuel and supply diversity. . .” M.G.L. ch. 23J § 9(c); “Renewable energy generation technologies can provide fuel diversity to the state and New England generation supply through use of local renewable fuels and resources that serve to displace and thereby lower regional dependence on fossil fuels.”  N.H.S. 362-F:1; “Providing support and incentives to locate renewable energy plants of small and moderate size in a manner that is distributed across the state’s electric grid, including locating such plants in areas that will provide benefit to the operation and management of that grid through such means as reducing line losses and addressing transmission and distribution constraints.” 30 V.S.A. § 8001(a)(7).

[13]          Federal Energy Regulatory Commission, Working Paper on Standardized Transmission Service and Wholesale Electric Market Design, Docket No: RM01-12-000 (March 15, 2002), at 6.

[14]          See, generally, ISO New England Inc. Transmission, Markets, and Services Tariff  Section I.1.3, available at  The objective function used in the energy and capacity markets optimizes social welfare, which is not expected to be appreciably different from minimizing total costs.  ISO New England Inc. and New England Power Pool, Testimony of Andrew G. Gillespie, on Behalf of ISO New England and New England Power Pool, Docket No. ER13-1880-000 (July 1, 2013), at 3-8, available at

[15]          ISO New England Inc. and New England Power Pool, Testimony of Matthew White, PhD, on behalf of ISO New England, Docket No. ER14-1050-000 (Jan. 17, 2014), at 53-54, available at

[16]          ISO New England Inc., Fuel Assurance Status Report of ISO New England Inc., Docket Nos. AD13-7-000 and AD14-8-000. (Feb. 18, 2015), , at 4, available at

[17]          U.S. Energy Information Administration, Levelized Cost and Levelized Avoided Cost of New Generation Resources in the Annual Energy Outlook 2015, June 2015, at 6, available at  The analysis includes several cost components, including transmission investments, for each resource type.

[18]          Carbon Capture and Sequestration (“CCS”), while in the research and development phase, is projected to add cost through additional capital expenditure, higher operating expenses, and decreased generation efficiency.

[19]          See, e.g., ISO New England 2015 Regional System Plan, Section 5.4, especially at Figure 5-3 (p 79), available at  Not all resources in the interconnection queue will ultimately reach commercial operation.  Moreover, the percentages of gas and wind in the queue are based on nameplate capacity, which may overstate the potential contribution of energy that would typically be produced by wind turbines.  The queue statistics are provided merely to indicate that the resources in development in New England are on the low end of the LCOE spectrum.

[20]          Other factors, including a particular resource’s specific configuration and location on the transmission network, can also influence relative competitiveness.

[21]          For more information regarding the relative magnitude of the various wholesale electricity markets from 2008 to 2014, see 2014 Report of the Consumer Liaison Group (March 10, 2015), at Appendix C: Wholesale Electricity Costs, available at

[22]          Certain fossil-fueled resources in New England must also buy allowances to emit carbon dioxide.  For example, a combined cycle natural gas-fired generator with a 7,400 British thermal units (BTU)/kWh heat rate that purchases allowances at $7.50/ton CO2 would include approximately $3.25/MWh in their energy market bid to cover such carbon compliance costs.

[23]          There are other types of standards that affect the electric power industry.  For example, an Emissions Performance Standard functions as a maximum emissions limit for criteria air pollutants for new (and sometimes existing) power generation resources.

[24]          Sometimes called Renewable Energy Standards (“RES”), for all intents and purposes, RES and RPS are synonymous.

[25]          As discussed above, resources are typically deemed “renewable” based on a combination of fuel source and technology type.  In contrast, a CES, which focuses on emissions characteristics, can sometimes be more technology neutral relative to an RPS.

[26]          Figure 5 is provided merely for illustrative purposes and is not intended to be comprehensive.  Some resources, such as hydroelectric power, may be considered renewable and/or clean (low carbon), depending on the vintage, size, and location specific characteristics.  The degree to which Canadian hydropower is ultimately a low carbon resource is the subject of debate in some quarters.  It is beyond the scope of this paper to evaluate any studies that question or present life-cycle emissions analysis regarding hydropower.  -urther, clusion of EE resources in regional planning studies has im one at a time. ic certificates for generators in adjacent c

[27]          N.H. Rev. Stat. Ann. § R.S.A. 362-F:1 (2007), available at

[28]          R.I. Gen. Laws § 39-26-3 (2014), available at

[29]          Chen, C., et al., Weighing the Costs and Benefits of State Renewables Portfolio Standards: A Comparative Analysis of State-Level Policy Impact Projections (March 2007), at 6, available at  See also, for example, Woolf, T., et al., Potential Cost Impacts of a Vermont Renewable Portfolio Standard (October 16, 2003), available at and Gittell, R., and Magnusson, M., Economic Impact of a New Hampshire Renewable Portfolio Standard (February 2007), available at

[30]          Wiser, R. and Barbose, G., Renewable Portfolio Standards in the United States: A Status Report with Data Through 2007 (April 2008) at 29, available at

[31]          Barbose, G., et al., Costs and Benefits of Renewable Portfolio Standards in the United States (July 2015), at 9, available at

[32]          While declining retail electricity prices, with all other things being equal or held constant, would result in an increasing RPS compliance cost (as a percentage of sales) metric, the study authors attributed the recent increases to the stringency of the RPS targets in certain states.  Id. at 10.

[33]          Id. at 10.

[34]          Id. at 9-10.

[35]          Cory, K., and Swezey, B., Renewable Portfolio Standards in the States: Balancing Goals and Implementation Strategies (December 2007), at 20-23, available at

[36]          Id. at 20.  Also, see the introduction to Section IV. Long Term Contracts, below, for more information.

[37]          Id.

[38]          Id. at 21.

[39]          For example, the Massachusetts S-REC I program used a carve-out with an adjustable minimum standard (measured initial growth), a price collar (solar clearinghouse establishes a price floor and forward ACP rate schedule establishes a price cap), and an extended term (eligible for 10 years, then become regular Class I).  For more information, see  S-REC I reached its 400 MW cumulative capacity goal in 2014 and has been incorporated into the S-REC II Program’s 1600 MW by 2020 target.

[40]          For example, see the Connecticut Green Bank at

[41]          For example, see Peregrine Energy Group et al., Study on Long-term Contracting Under Section 83 of the Green Communities Act (December 31, 2012), available at

[42]          Several of the New England states performed comprehensive RPS program reviews in 2011:
ConnecticutMaineNew HampshireVermont.

[43]          See, generally, Conn. Gen. Stat. § 16-245a et seq.;  Me. Rev. Stat. §§ 3210, 3210-C; Mass. Gen. Laws ch. 25A, § 11F; N. H. Rev. Stat. Ann. § 362-F; R.I. Gen. Laws §§ 39-26 et seq.; 30 V.S.A. § 8004.

[44]          N.H. Rev. Stat. Ann. § R.S.A. 374-F holds that, “”Electricity suppliers” means suppliers of electricity generation services and includes actual electricity generators and brokers, aggregators, and pools that arrange for the supply of electricity generation to meet retail customer demand….”,…”, available at

[45]          Wiser, R., et al., Renewables Portfolio Standards: A Factual Introduction to Experience from the United States (April 2007), at 5, available at

[46]          Frayer, J., Wang, E., Maine Public Utilities Commission RPS Report 2011: Review of RPS Requirements and Compliance in Maine (January 30, 2012), at 41, available at

[47]          Tracking RECs in the GIS enables regulatory agencies to oversee the measurement and verification of renewable power generated in furtherance of policy objectives. For more information, see

[48]          Technically, all generation resources receive credits in the GIS for each megawatt-hour of energy produced, whereas only qualified renewable resources receive RECs.  In this way, the NEPOOL GIS system also enables disclosure of the environmental characteristics of retail energy supplies.

[49]          Frayer, J., Wang, E., Maine Public Utilities Commission RPS Report 2011: Review of RPS Requirements and Compliance in Maine (January 30, 2012), at 30 (footnote omitted), available at

[50]          Barbose, G., Presentation to Renewable Energy Markets Conference, Renewable Portfolio Standards in the United States: An Update (December 4, 2014), at slide 11, available at, generally,

[51]          Id.

[52]          Other cost containment mechanisms include rate impact/revenue requirement caps, surcharge caps, renewable energy contract price caps, renewable energy funding caps, and financial penalties.  Heeter, J. et al., A Survey of State-Level Cost and Benefit Estimates of Renewable Portfolio Standards (May 2014), at 45-46, available at

[53]          Id. at 45.

[54]          For more information regarding use of ACP funds, see the latest annual program reports, available at:
ConnecticutMassachusettsMaineNew HampshireRhode Island

[55]          Frayer, J., Wang, E., Maine Public Utilities Commission RPS Report 2011: Review of RPS Requirements and Compliance in Maine (January 30, 2012), at 86 (Appendix A), available at

[56]          Rhode Island Public Utilities Commission, Annual RES Compliance Report for Compliance Year 2013, at 21, available at

[57]          Frayer, J., Wang, E., Maine Public Utilities Commission RPS Report 2011: Review of RPS Requirements and Compliance in Maine (January 30, 2012), at 84 (Appendix A), available at  (Vermont is not included in the table as it did not have an RPS in 2011.)

[58]          See Bird, L., et al., Solar Renewable Energy Certificate (SREC) Markets: Status and Trends (November 2011), available at

[59]          See ISO New England 2015 Regional System Plan, Section 5.4, especially at Figure 5-3 (p. 79), available at

[60]          Database of State Incentives for Renewables and Efficiency (“DSIRE”): Massachusetts Renewable Portfolio Standard, available at also Connecticut LREC, ZREC, and SHREC programs at DSIRE: Connecticut Renewable Portfolio Standard, available at

[61]          December 18, 2012 Massachusetts Department of Energy Resources (“MA DOER”) presentation, Massachusetts Solar Carve-Out (SRECs): Overview & Program Basics, available at

[62]          December 13, 2013 MA DOER presentation, RPS Solar Carve-Out II: Final Policy Design, available at

[63]          Some commentators and market participants may nevertheless criticize an RPS program as a government intrusion into the marketplace and advise against picking winners and losers by any means. For more information, see Moot, J., Subsidies, Climate Change, Electric Markets and the FERC, 35 Energy Law Journal 345 (November 18, 2014), at 347, available at

[64]          For more information on ISO New England’s market monitors, see

[65]          Some contend that a long-term contract with a select resource or project is not market-based, even if the contract award is the result of a competitive solicitation process.

[66]          ISO New England Inc. Transmission Markets and Services Tariff Section III.A.21.2(b)(i), available at

[67]          Ela, E. et al., Evolution of Wholesale Electricity Market Design with Increasing Levels of Renewable Generation (September 2014), at 1-2, available at

[68]          In this example, REC revenues, tax credits, and other production-related incentives exceed the generators’ payments associated with negative prices.

[69]          See, for example, ISO New England Inc. and New England Power Pool, Joint Testimony of Robert G. Ethier and Christopher A. Parent, on behalf of ISO New England, Docket No. ER13-1877-000, at 17-20, (July 1, 2013) available at;
Ela, E., Using Economics to Determine the Efficient Curtailment of Wind Energy (February 2009), available at

[70]          Platts, Inside FERC, Nuclear industry executives chide FERC about inaction on price formation issues (Ostroff, J.), May 18, 2015. See also, February 12, 2015 Nuclear Energy Institute Briefing for the Financial Community, Nuclear Energy 2014-2015: Recognizing the Value, at 3, available at

[71]          “RECs are state-created and state-issued instruments certifying that electric energy was generated pursuant to certain requirements and standards.  Thus, a REC does not constitute the transmission of electric energy in interstate commerce or the sale of electric energy at wholesale in interstate commerce.  Therefore, RECs and contracts for the sale of RECs are not themselves jurisdictional facilities subject to the Commission’s jurisdiction under [Federal Power Act] section 201.”  WSPP Inc., 139 FERC ¶ 61,061 (2012), at P 21 (2012), at 21.

[72]          Brief for the U. S. and the FERC as Amici Curiae at 17, PPL EnergyPlus, LLC et al. v. Solomon et al, 766 F.3d 241 (3d Cir. 2014), (Nos. 13-4330 and 13-4501), referencing PJM Interconnection, L.L.C., 135 FERC ¶ 61,022 at P 142 (2011) (a state may “act within its borders to ensure resource adequacy or to favor particular types of new generation”); PJM Interconnection, L.L.C., 137 FERC ¶ 61,145 at P 3 (2011) (recognizing that states have their own policies and objectives regarding the development of new capacity resources); id. at P 89 (affirming that states may have policy reasons to “provide assistance for new capacity entry”).

[73]          The definition continues, “A change in laws or regulations enacted by a governmental or regulatory body can dramatically increase the costs of conducting a business, decrease the attractiveness of an investment, or change the competitive landscape.”  International Risk Management Institute website glossary, available at

[74]          Lowder, T. et al., Continuing Developments in PV Risk Management: Strategies, Solutions, and Implications, National Renewable Energy Laboratory (February 2013), at 8, available at

[75]          Wiser. R, et al., 2014 Wind Technologies Market Report (August 2015), at 62, available at

[76]          Weiss, J., Marin, P., Reforming Renewable Support in the United States: Lessons from National and International Experience (November 1, 2012) (“Brattle 2012”), at 27, available at

[77]          In contrast to a renewable portfolio standard that focuses on attributes of a resource’s fuel source, or its input, a clean energy standard is focused on the resource’s emissions attributes, its output.

[78]          Certain states have implemented a CES, but a national uniform standard does not exist.  For more information on the interaction of an RPS/CES with an Air Emission Reduction Program, see the introduction to Section V., below.

[79]          Based on presentation materials prepared for a Joint Resources For the Future/U.S. Environmental Protection Agency Workshop, A Federal Clean Energy Standard: Understanding Important Policy Elements (July 27, 2011), available at

[80]          Several proposals for a federal clean energy standard have included some fossil resources.  See Brown, Phillip, Clean Energy Standard: Design Elements, State Baseline Compliance and Policy Considerations, (Mar. 25, 2011), at 16, available at

[81]          Based on Center for Climate and Energy Solutions’ Comparison Chart: Diversified/Renewable Energy Standard Provisions in Climate and Energy Legislation in the 111th Congress, available at

[82]          See Congressional Budget Office, The Effects of Renewable or Clean Electricity Standards (July 2011), at 3-6, available at

[83]          ISO New England Discussion Paper (Revised), The Importance of a Performance-Based Capacity Market to Ensure Reliability as the Grid Adapts to a Renewable Energy Future (October 2015), at 3 and 12, available at–_capacity_market_and_renewable_energy_future_–_revised_version_–_10-30-2015.pdf.

[84]          Id. at 5.

[85]          99th Illinois General Assembly, 2015 and 2016, House Bill 3293 (“HB3293”), available at

[86]          HB3293, Amending 20 Ill. Comp. Stat.ILCS 3855/1-75 to include (d-5) Low Carbon Portfolio Standard, at 50-51, available at

[87]          HB3293, Amending 20 Ill. Comp. Stat. 3855/1-10: Definitions, at 13.

[88]          Id. at 14.

[89]          HB3293, Amending 220 Ill. Comp. Stat. 5/516-108(k), at 68-69.

[90]          More information is available at also Stanton, E. et al., A Clean Energy Standard for Massachusetts (November 2013), available at

[91]          See, for example, Joskow, P., Restructuring, Competition and Regulatory Reform in the U.S. Electricity Sector, Journal of Economic Perspectives, Volume 11, Number 3 (Summer 1997) 119-138, at 125, available at;

[92]          Weiss, J., Sarro, M., The importance of long-term contacting for facilitating renewable energy project development (May 7, 2013), at 27 (“Brattle 2013”), available at

[93]          Tierney Cape Wind Testimony at 79.

[94]          Peregrine Energy Group, Study on Long-Term Contracting Under Section 83 of the Green Communities Act, Submitted to Massachusetts Department of Energy Resources, Dec. 31, 2012, at p. 6, available at; see Connecticut Department of Energy and Environmental Protection, 2012 Integrated Resource Plan for Connecticut, at p. 49, available at  (stating that “DEEP believes that mechanisms such as long-term contracts must be explored to encourage the development of low-cost renewable generation” and discussing the evaluation of “costs and risks that Connecticut customers face in complying with the existing RPS Class I requirements.”).  See, also, Brattle 2013 at 28.

[95]          Brattle 2013 at 8-18.

[96]          See Brattle 2013 at 21-23.

[97]          R. I. Gen. Laws § 39-26.1.  See, also, NYSERDA, Managing Retail Electricity Price Volatility Through Long-Term Renewable Energy Contracts Between Generators and End-Users: A Case Study (June 2014), available at

[98]          Affordable Clean Energy Security Act, R.I. Gen. Laws § 39-31-2.

[99]          Department of Energy and Environmental Protection, Procurement of Resources Pursuant to Public Act 15-107: Notice of Proceedings and Opportunity for Public Comment, Aug. 31, 2015, at 4, available at; see Section 1(a) of Public Act No. 15-107, An Act Concerning Affordable and Reliable Energy (stating that the objective of such solicitations is “to secure cost-effective resources to provide more reliable electric service for the benefit of the state’s electric ratepayers and to meet the state’s energy and environmental goals and policies established in the Integrated Resources Plan.”).

[100]         35-A Me. Rev. Stat. § 3210-C.

[101]         30 V.S.A. § 8001(a)(3).

[102]         30 V.S.A. § 8005a.

[103]         30 V.S.A. § 248.

[104]         Cory, K., and Swezey, B., Renewable Portfolio Standards in the States: Balancing Goals and Implementation Strategies (December 2007), at 21, available at  Moreover, the ISO-NE capacity market now provides new resources with seven years of locked-in revenue.  ISO New England Inc. and New England Power Pool Participants Committee, 147 FERC ¶ 61,173 (2014).  See ISO New England Transmission, Markets and Services Tariff Section III.

[105]         Brattle 2013 at 27.

[106]         An Act Relative to Green Communities, Mass. Session Laws, St. 2008, c. 169, § 83.

[107]         An Act Relative to Competitively Priced Electricity in the Commonwealth, Mass. Session Laws, St. 2012, c. 209, § 36.

[108]         Id.

[109]         Sections 6-8 of Public Act No. 13-303, An Act Concerning Connecticut’s Clean Energy Goals; Section 1(c) of Public Act No. 15-107, An Act Concerning Affordable and Reliable Energy.  See also Connecticut Department of Energy and Environmental Protection, 2014 Integrated Resource Plan for Connecticut, at 43, available at

[110]         R. I. Gen. Laws § 39-26.1.3.

[111]         See, generally, ISO New England Inc. and New England Power Pool Participants Committee, 135 FERC ¶ 61,029 (2011).

[112]         ISO New England Inc. and New England Power Pool Participants Committee, 135 FERC ¶ 61,029 at P 158 (2011).

[113]         ISO New England Inc. and New England Power Pool Participants Committee, 147 FERC ¶ 61,173 (2014).

[114]         See New England States Committee on Electricity v. ISO New England Inc., Complaint, Docket No. EL13-34-000 (Dec. 28, 2012).  On the same day, NESCOE filed a related protest to the compliance filing made by ISO-NE in Docket No. ER12-953-001.

[115]         ISO New England Inc. and New England Power Pool Participants Committee, 150 FERC ¶ 61,065 at P 9 (2015).

[116]         Id.

[117]         ISO New England Inc. and New England Power Pool Participants Committee, 147 FERC ¶ 61,173 at P 83 (2014).  See, also, ISO New England Inc., New England Power Pool Participants Committee, Demand Curve Changes to be effective 6/1/2014, Docket No. ER14-1639-000 (April 1, 2014), Testimony of Robert G. Ethier, at 40-41.

[118]         PPL Energyplus v. Nazarian, 974 F.Supp.2d 790 (D.Md. 2013) and PPL Energyplus v. Hanna, 977 F.Supp.2d 372 (D.N.J. 2013).  Under Article IV, Section 2 of the U.S. Constitution, the Constitution and “Laws of the United States . . . shall be the supreme Law of the Land,” providing authority for Congress to preempt state law.  For a general overview of the Supremacy Clause, see


[120]         PPL EnergyPlus, LLC v. Solomon, 766 F.3d 241 (3d Cir. 2014); PPL EnergyPlus LLC v. Nazarian, 753 F.3d 467 (4th Cir. 2014).

[121]         PPL EnergyPlus, LLC v. Solomon, 766 F.3d at 254.

[122]         Id. at n.4.

[123]         Id.

[124]         See Complaint, Allco Fin. Ltd. v. Klee, No. 3:15cv608 (D. Conn. Apr. 26, 2015); Allco Fin. Ltd. v. Klee, No. 3:13CV1874 JBA, 2014 WL 7004024 (D.Conn. 2014); Town of Barnstable v. Berwick, 17 F. Supp. 3d 113 (D.Mass. 2014).  In August 2015, a complaint was filed in federal district court in Rhode Island claiming, in part, that a power purchase agreement for renewable energy should be invalidated on the basis of the Supremacy Clause.  Riggs et al. v. Curran, No. 1:15CV00343-S-LDA (D.R.I. 2015).  While not explicitly referencing the Maryland and New Jersey cases, the complaint appears to adopt some of the same preemptive claims put forward in those proceedings.  Additionally, in February 2015, a generator filed a claim in a New York federal district court based in part on the Supremacy Clause and citing to the Maryland and New Jersey decisions.  See Entergy v. Zibelman et al., No. 15-cv-230-DNH-TWD (D.N.Y. 2015).  The claim challenged the New York Public Service Commission’s (“PSC”) approval of a contract between a New York electric distribution company and the operator of a power plant that had announced an intent to “mothball” its facilities but was determined by the PSC to be needed for reliability.

[125]         The Second Circuit Court of Appeals affirmed the lower court’s decision on alternative grounds, finding that the plaintiff lacked standing and failed to exhaust administrative remedies.  Allco Fin. Ltd. v. Klee, 805 F.3d 89 (2d Cir. 2015).   The Massachusetts decision was also appealed, to the First Circuit Court of Appeals, which remanded the case to the District Court in May 2015 based on an Eleventh Amendment claim.  Town of Barnstable v. O’Connor, 786 F.3d 130 (1st Cir. 2015).  The remand order did not substantively address the Supremacy Clause claim.  The Massachusetts case has been stayed in District Court until January 2016.

[126]         For example, see California Greenhouse Gas Cap-and-Trade Program at

[127]         For more information, see

[128]         Hibbard, P., et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Nine Northeast and Mid-Atlantic States: Review of RGGI’s Second Three-Year Compliance Period (2012-2014) (July 14, 2015) (“2015 RGGI Report”), at 2, available at  Even if allowances are directly allocated to resources, the opportunity cost of selling such allowances are incorporated into the resources’ electricity market offers.

[129]         See Ramseur, J., The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress (July 2, 2015), available at

[130]         2015 RGGI Report at 10.

[131]         Id. at 6.

[132]         U.S. Energy Information Administration, Today in Energy (February 3, 2014), available at

[133]         Breger, D. and RGGI Staff Working Group, RGGI Region Projected Household Bill Impacts, at 2, available at  For more information, see

[134]         “From a consumer perspective, RGGI program impacts are net positive over the study period.  Although CO2 allowances tend to raise electricity prices in the near term, there is also a lowering of prices over time because the states invested so much of the allowance proceeds on energy efficiency programs.” Hibbard, P., et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Ten Northeast and Mid-Atlantic States: Review of the Use of RGGI Auction Proceeds from the First Three-Year Compliance Period (November 15, 2011) (“2011 RGGI Report”), at 34 and 39-40, available at

[135]         2011 RGGI Report, at 39, and 2015 RGGI Report, at 45.

[136]         For example, see ISO New England June 9, 2011 Newswire, available at and Estimate of Connecticut’s Generator Tax on New England’s Wholesale Energy Prices (June 6, 2011), available at

[137]         2015 RGGI Report at 42.

[138]         Id. at 41.

[139]         In California, leakage is also called “resource shuffling.”  See Cullenward, D., and Weiskopf, D., Resource Shuffling and the California Carbon Market (July 18, 2013), available at

[140]         The issue of leakage can arise under many types of programs that have a geographic limit including renewable portfolio or clean energy standards.

[141]         See RGGI Emissions Leakage Multi-State Staff Working Group to the RGGI Agency Heads, Potential Emissions Leakage and the Regional Greenhouse Gas Initiative (RGGI): Evaluating Market Dynamics, Monitoring Options, and Possible Mitigation Mechanisms (March 14, 2007), available at

[142]         In November 2015, the New England Power Pool approved revisions to the GIS operating rules related to the creation of unit-specific certificates for generators in adjacent control areas.  Corresponding changes are likely needed on the other side of New England’s borders.

[143]         Palmer, K., and Paul, A., A Primer on Comprehensive Policy Options for States to Comply with the Clean Power Plan (April 2015), at 5, available at, citing 79 Fed. Reg. 34829-34958 at 34838 (2014), available at

[144]         See Brown, P., U.S. Renewable Electricity: How Does the Production Tax Credit (PTC) Impact Wind Markets? (June 20, 2012), available at

[145]         See, generally, Bolinger, M., An Analysis of the Costs, Benefits, and Implications of Different Approaches to Capturing the Value of Renewable Energy Tax Incentives (May 2014), available at

[146]         U.S. Government Accountability Office, Information on Federal and Others Factors Influencing U.S. Energy Production and Consumption from 2000 through 2013 (September 2014) (“GAO”), at 76, available at

[147]         For more information, see

[148]         GAO at 75.

[149]         To “claim the PTC, construction on an eligible project must have ‘commenced construction’ prior to January 1, 2015.”  Database of State Incentives for Renewables & Efficiency (“DSIRE”).  For more information, see

[150]         GAO at 75, citing U.S. Government Accountability Office, Wind Energy: Additional Actions Could Help Ensure Effective Use of Federal Financial Support (March 11, 2013).

[151]         Fell, H. et al., Designing Renewable Electricity Policies to Reduce Emissions (December 2012), at 12 (footnote omitted), available at

[152]         Exelon Corp., Climate Change 2015 Information Request, CDP, at 11 available at; see, generally,  Also, see Brown, P., U.S. Renewable Electricity: How Does Wind Power Generation Impact Competitive Power Markets? (November 7, 2012), available at

[153]         See, generally, Midwest Power Sys., Inc., 78 FERC ¶ 61,067 (1997) (noting that states have tools such as tax incentives and direct subsidies to encourage renewable resources without setting wholesale prices); S. Cal. Edison Co., 71 FERC ¶ 61,269 (1995) (states have broad powers to direct the planning and resource decisions of utilities under their jurisdiction, including encouraging certain types of generation facilities through tax structure or direct subsidies).

[154]         Brief for the U.S. and the FERC as Amici Curiae at 18-19, PPL EnergyPlus, LLC et al. v. Solomon et al, 766 F.3d 241 (3d Cir. 2014), (Nos. 13-4330 and 13-4501).

[155]         Financial transmission rights can, in theory, address this issue, but they have yet to provide meaningful incentives to developers to fund transmission in New England.  See, generally, Long-Term Firm Transmission Rights in Organized Electricity Markets, 116 FERC ¶ 61,077 (2006) (“Order No. 681”).

[156]        ISO-NE Tariff Section I.3.9, available at

[157]         104 FERC ¶ 61,103 at P 132 (2003) (“Order No. 2003”), available at

[158]         Id.

[159]         ISO-NE Training Materials, Introduction to ISO New England System Planning: ISO 101, at 4, available at

[160]         Federal Energy Regulatory Commission Staff Report, Common Metrics, Docket No. AD14-15 (Aug. 26, 2014), at 35-36, available at

[161]         PJM Interconnection et al., ISO/RTO Joint Common Performance Metrics Report, Docket No. AD14-15-000 (Oct. 30, 2015) (“2015 ISO/RTO Metrics Report”), available at

[162]         2015 ISO/RTO Metrics Report at 94.

[163]         More information regarding so-called Material Modifications and their impact on the study process and queue position can be found in a September 30, 2014 ISO-NE presentation at a Renewable Energy Northeast (“(RENEW”)) interconnection workshop (“(ISO-NE/RENEW Presentation”)) at 30-32, 52-71, available at

[164]         ISO New England Open Access Transmission Tariff, Section II.B, Attachment N, Procedures for Regional System Plan Upgrades, available at .

[165]         For more information, see ISO New England, Transmission Planning Process Guide (July 20, 2015), available at

[166]         See also ISO New England, 2015 Regional System Plan, at Section 2.1.1, available at

[167]         Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, 136 FERC ¶ 61,051 at P 326 (2011) (“Order No. 1000”).

[168]         As noted below, on behalf of and together with five New England states, NESCOE has appealed certain aspects of the ISO-NE Order No. 1000 public policy process to the D.C. Circuit Court of Appeals.  That appeal is pending.  Emera Maine et al. v. FERC, Nos. 15-1139 and No. 15-1141, (D.C. Cir. filed May 15, 2015), see

[169]         Tex. Senate Bill No. 20, 2005, available at

[170]         Lasher, W., presentation to U.S. Department of Energy Quadrennial Energy Review (“ERCOT QER”), Competitive Renewable Energy Zones Process (April 11, 2014), available at

[171]         The Texas system, the Electric Reliability Council of Texas (“ERCOT”), is one of the three separate transmission grids in North America. The ERCOT system operates within the state of Texas and therefore does not share costs of transmission system expansions with other states.  California also employs a CREZ approach to transmission development as part of its Renewable Energy Transmission Initiative.  For more information, see

[172]         For more information, see Competitive Renewable Energy Zone Program Oversight, CREZ Progress Report No. 17 (December 2014) (“Final CREZ Report”), available upon request.

[173]         Final CREZ Report at 6.

[174]         Id.

[175]         Pfeifenberger, J., Hou, D., Summary of Transmission Project Cost Control Mechanisms in Selected U.S. Power Markets (October 2011), at 2 and 7-8, available at

[176]         Final CREZ Report, at 9.

[177]         See, for example, Trabish, H., Utility Dive (April 22, 2015), available at

[178]          See, e.g., ERCOT QER, at 11 (“Some CREZ circuits are also being used to connect new shale-gas load to the ERCOT system.”).

[179]         Golden Spread Electric Cooperative, Inc., and Sharyland Utilities, L.P., 149 FERC ¶ 61,015 at P 8 (2014), available at

[180]         Rulemaking Relating to Renewable Energy Amendments, Project No. 31852, Order Adopting New §25.174, at 32, available at

[181]         Southern California Edison is part of the California ISO (“CAISO”) system.  CAISO is predominately in the state of California, with a small portion in Nevada.  As part of the Western Interconnection, CAISO is subject to FERC jurisdiction.

[182]         “Any load-serving entity that enters into a contract for generation located in the [Tehachapi Wind Resource Area] would be able to use the Tehachapi facilities to deliver that energy on an open access basis.”  Southern California Edison Company,121 FERC ¶ 61,168 at P 6 (2007).

[183]         Southern California Edison website, Tehachapi Renewable Transmission Project webpage, Project Description, available at

[184]         S. Cal. Edison, Greening the Grid: Tehachapi Renewable Transmission Project (Fall 2012) (“SCE Tehachapi Brochure”), at 2, available at

[185]         California Public Utilities Commission, Second Report of the Tehachapi Collaborative Study Group, (April 19, 2006), at 8, available at

[186]         Southern California Edison Company, Petition for Declaratory Order For Incentive Rate Treatment, Exhibit H – December 29, 2006 CAISO South Regional Transmission Plan for 2006, Part II: Findings and Recommendation on the Tehachapi Transmission Project, Docket No. EL07-62-000 (May 18, 2007), at 35.

[187]         Southern California Edison Company, Petition for Declaratory Order For Incentive Rate Treatment, Exhibit I – January 18, 2007 Memorandum to CAISO Board of Governors from Vice President of Planning and Infrastructure Development, (Docket No. EL07-62-000) (May18, 2007), at 8.

[188]         Transmission and Distribution World, SCE Energizes New Line to Transport Green Energy (August 27, 2015), available at

[189]         Emera Maine et al. v. FERC, Nos. 15-1139 and No. 15-1141, (D.C. Cir. filed May 15, 2015), See and

[190]         American Council for An Energy Efficiency Economy, 2015 State Energy Efficiency Scorecard (October 21, 2015), available at

[191]         Further, certain state initiatives, such as micro-grids and smart grid/grid modernization emphasize resiliency and reliability.

[192]         See ISO-NE, Final 2015 Solar PV Forecast Details, available at