Since January 2017, the Trump administration has made multiple attempts to override state clean energy and energy efficiency policies. State attorneys general have responded by defending their states’ rights to promote clean energy and energy efficiency, protecting consumers’ rights to energy choices and fair dealing from energy companies, and objecting to large energy infrastructure projects that do not satisfy state and federal environmental requirements.
Protecting and advancing states’ clean energy rights.
States have the statutorily- and judicially-recognized right to shape their own energy mix, including through clean energy mandates. State attorneys general have the responsibility to defend state clean energy prerogatives against efforts by federal authorities or other interested parties to undermine them. They also play a positive role in removing legal barriers that constrain the expansion of clean energy in their states.
Favoring open access and competition, and protecting consumers against fraud and unfair business practices.
Promoting competition while protecting consumers is traditionally an active area for state attorneys general. This experience translates well to the energy sector as there is a need for innovation to support decarbonization goals and consumer demand, while ensuring that during a period of dynamic change in the power sector, consumers are protected against unscrupulous business practices.
Insisting on full compliance with state and federal environmental reviews and permitting requirements.
State attorneys general have the authority and responsibility to ensure that environmental reviews and permits for power plants, pipelines, transmission lines, and other energy infrastructure comply with all federal and state legal requirements. In particular, attorneys general can insist that before approving new energy projects, federal officials must fully evaluate the potential climate and other environmental impacts of such projects, as required by law.
Attorneys general have taken action in several jurisdictions to protect states’ interests and consumers and defend environmental laws and rules.
Below is just a sampling of the many actions that attorneys general have taken since the beginning of the Trump administration to protect states’ clean energy rights; promote competition and protect consumers; and ensure environmental laws and rules are followed in the Federal Energy Regulatory Commission (FERC); federal and state agencies; regional transmission organizations that operate wholesale electricity markets under FERC’s jurisdiction (such as PJM and ISO-NE); federal and state courts; public utility commissions; and state legislatures.
Insisting that the Federal Energy Regulatory Commission & Federal Courts Respect States’ Rights to Shape their Power Systems
- Eleven attorneys general wrote a letter in October 2019 to FERC on opportunities to collaborate on the pursuit of affordable, reliable power and to insist that FERC eliminate barriers to competition for renewable energy generation and energy efficiency while respecting state authority.
- Five attorneys general wrote an op-ed in November 2018 asking FERC to refrain from undermining state clean energy mandates in regulating the wholesale organized markets operated by PJM Interconnection, the regional transmission organization for twelve eastern states and the District of Columbia.
- Multiple attorneys general have repeatedly opposed ("Protecting Consumers by Challenging Expensive Fossil Fuel Subsidies that Undermine State Clean Energy Rights") efforts by FERC and PJM to put in place capacity market rules that prevent clean energy resources from participating in the market, unlawfully penalizing state power preferences and increasing costs for consumers.
- Three attorneys general sent a letter to PJM in July 2019 on its search for its next president and chief executive officer, saying that PJM’s next leader should be “an enthusiastic partner in states and localities’ efforts to address climate change, protect consumers, and promote green economic development.”
- Nine attorneys general filed joint comments in December 2019 opposed to FERC’s proposed weakening of its regulations implementing regulations the Public Utility Regulatory Policies Act (PURPA), which has played a critical role in expanding the market for renewable energy. The attorneys general of Massachusetts and North Carolina submitted their own state-specific comments to FERC on its proposal.
- The attorney general of Illinois, and a coalition of seven attorneys general as amicus curiae successfully defended Illinois’ prerogative to implement state zero emission credit (ZEC) programs, which compensates qualifying nuclear generators for the zero carbon emissions attributes of their energy generation. The Second Circuit upheld New York’s similar ZEC program in 2018 against a challenge opposed by eight attorneys general.
- The attorney general of Oregon in April 2019 successfully defended the state’s low carbon fuel standard, which seeks to reduce greenhouse gas emissions from use and production of transportation fuels in Oregon to at least ten percent lower than 2010 levels by 2025. The transportation sector is now the largest source of carbon emissions.
Demanding that the Federal Energy Regulatory Commission Reform Its Process of Reviewing Gas Pipeline Applications
- Twelve attorneys general filed a brief in support of a challenge to FERC’s practice of issuing tolling orders to extend its own deadline for deciding requests for rehearing. In the case of pipelines, FERC commonly delays its decision on requests for rehearing – necessary before a party can seek judicial review – while allowing pipeline construction to proceed.
- Eight attorneys general filed comments in July 2018 that the current FERC certification process for gas pipelines fails in a number of key respects, including approvals of gas pipelines that: are not needed; will cause significant environmental harms (including exacerbating climate change); and fail to consider clean energy alternatives.
- The attorney general of New York filed comments in July 2018 that emphasized the harm landowners could suffer on the basis of FERC’s practice of issuing conditional certificates that allow natural gas companies to initiate condemnation activities before state environmental reviews have been completed.
Challenging Department of Energy Efforts to Skirt its Energy Efficiency Obligations
- Nine attorneys general succeeded in October 2019 in securing an order from the Ninth Circuit that the Department of Energy implement long-delayed energy efficiency standards for appliances and industrial equipment that will result in significant consumers’ savings and decreased pollution. More information about this litigation can be found here (“Appliances and Industrial Equipment”).
- The attorney general of California in December 2019 successfully opposed an effort by the lightbulb industry to temporarily block California’s strengthened lightbulb efficiency standards from going into effect, which will reduce emissions and save consumers money.
Pursuing State Objections to Energy-Related Projects
- The attorney general of New York in December 2019, defended the New York Department of Environmental Conservation’s denial of a state water quality certification under the Clean Water Act for a proposed natural gas pipeline that would have impacted more than 250 streams and more than 80 acres of wetlands.
- The attorney generals of New Jersey and Maryland in 2019 successfully attacked efforts by natural gas pipeline companies to condemn state land to build natural gas pipelines.
- The attorney general of Washington, supported by a coalition of six other attorneys general, since 2018 has defended the Washington Department of Ecology’s denial of a permit for the construction of a coal export terminal near the Columbia River because of the project’s significant and unavoidable adverse environmental impacts.
- The attorney general of Virginia prevailed, in the Supreme Court and over the Trump administration’s amicus brief, in June 2019 in his effort to defend Virginia’s decades-old ban on uranium mining, which is mostly used as fuel for nuclear power plants.
- The attorney general of Rhode Island in January 2018 questioned the role of a new natural gas plant given the state’s greenhouse gas reduction goals.
Enforcing and Enacting State Consumer Protection and Environmental Laws
- The attorneys general of Massachusetts and New Mexico brought lawsuits to protect consumers from deceptive marketing practices and scams run by some competitive energy and some clean energy companies.
- The attorney general of Virginia, in December 2019, enforced state environmental laws, regulations, and permits against a pipeline company for alleged violations of runoff and other water quality requirements related to pipeline construction. More information about this lawsuit can be found here (“Virginia”).
- The attorney general of Pennsylvania, in December 2017, sued a fracking company for alleged unfair and deceptive conduct when dealing with impacted landowners.
- The attorneys general of Connecticut, Michigan, and Vermont have used their office to warn consumers about deceptive marketing energy practices and scams.
- The attorney general of Illinois initiated legislation that was enacted in August 2019 to provide consumers with meaningful information to understand what choosing alternative electric and gas suppliers as their energy providers would mean for their utility bills.
Protecting Environmental and Consumer Interests in State Public Utility Commission Proceedings
- The attorney general of Illinois, in July 2019, secured a $14 million settlement with a gas company that had overcharged costumers with its costly pipeline replacement program.
- The attorney general of Kentucky, in May 2019, successfully opposed a proposal from a utility in the commonwealth that would have raised customers’ monthly bills an average of nine percent a month.
- The attorney general of Connecticut, in May 2019, secured the largest fine the Connecticut Public Utilities Regulatory Authority has ever leveled against an energy company for violating the state’s consumer protection statutes in marketing its services.
- The attorney general of North Carolina challenged in the North Carolina Supreme Court in April 2019 an order by the North Carolina Utilities Commission that allowed a utility to pass on to ratepayers the cost of cleaning up mishandled coal ash.
- The attorney general of Michigan has saved utility consumers more than $300 million in proceedings before the Michigan Public Service Commission since taking office in January 2019.
- The attorney general of Minnesota, in January 2019, requested that the Minnesota Public Utilities Commission reject a utility’s proposed pilot program for a green tariff for renewable natural gas because the program would be costly for customers and would not promote the state’s climate and clean energy goals.
- The attorney general of Michigan filed testimony, in February 2019, opposing a utility’s nearly $10 million proposed rate increase as the proposal saddled consumers with costs unrelated to providing electricity and did not pass on corporate tax savings from the 2017 tax legislation to consumers.
- Similarly, the attorney general of Massachusetts, in March 2019, challenged a ruling by the Massachusetts Department of Public Utilities that the corporate tax savings for the first half of 2018 could not be passed on to consumers because of the department’s general principle against retroactive ratemaking.
- The attorney general of the District of Columbia filed comments of the Department of Energy and Environment on Behalf of the District of Columbia Government in October 2018 urging that infrastructure decisions be made in line with the District’s clean energy goals.
- The attorney general of Massachusetts, in December 2018, successfully supported the state’s energy efficiency plan that will reduce greenhouse gas emissions and save consumers over $8 billion after, in July of the previous year, participating in grid modernization proceedings advocating for, among other things, access to data to maximize possible customer response during peak demand periods in conjunction with advanced meters.
- The attorney general of North Carolina, in March 2019, requested that a utility revise its long term planning document to take into account the costs to ratepayers from climate change caused by the utility’s reliance on natural gas power generation.