Since January 2017, the Trump administration has attempted to implement a number of regulations that would override state clean energy and energy efficiency policies. State attorneys general have responded by stepping forward and insisting on their statutory rights, as representatives of their states, to set their own policies in these areas.
In particular, attorneys general have opposed administration proposals to bail out the coal industry through regulatory rollbacks and anti-competitive market regulations, while holding back market entry and fair play opportunities for renewable energy. Attorneys general also have challenged long-standing practices by federal agencies such as the Federal Energy Regulatory Commission, which has a history of green-lighting new fossil fuel energy projects without adequate consideration of climate change implications and consistency with state laws and policies.
In the transportation sector, state attorneys general have been working to reduce carbon emissions by helping to implement, and defend, state and federal programs to increase the fuel efficiency of cars and trucks, and to reduce the carbon intensity of transportation fuels.
State attorneys general have used litigation to hold the Department of Energy accountable to its statutory obligations to create national energy efficiency standards for consumer and commercial products, which the Trump administration has sought to derail or delay. State attorneys general have also leveraged their traditional role as consumer advocates to ensure that utilities pass on tax savings to ratepayers.
Protecting and advancing clean energy mandates.
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 addressing legal barriers to the uptake of clean energy in their states.
- The attorneys general of Delaware, Illinois, Maryland, New Jersey and the District of Columbia recently wrote an op-ed asking the Federal Energy Regulatory Commission to refrain from undermining state clean energy mandates in regulating wholesale organized markets. These attorneys general have also filed comments insisting that FERC respect state clean programs in PJM (see comments of Illinois, DC, New Jersey) and in ISO-New England (see Massachusetts fuel security request for rehearing and CASPR partial protest) as well.
- The attorneys general of Delaware, Maryland, and the District of Columbia sent a letter to PJM on its search for its next president and chief executive officer. The letter said 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.” The attorneys general continued: PJM’s next president should embrace the changes to the energy sector and help make state clean energy goals and programs successful.
- The attorneys general of Connecticut, Massachusetts and Oregon have defended state clean energy programs that promote cleaner power generation and that reduce emissions from and electrify the transportation sector, which is now the largest source of carbon emissions. The New York attorney general provided six non-profits with some of the world’s first electric, battery-powered delivery trucks to support their operations for two years as part of a settlement with a utility for violating the Clean Air Act. Similarly, the attorney general of Massachusetts successfully supported the state’s energy efficiency plan that will reduce greenhouse gas emissions and save consumers over $8 billion and protested FERC’s failure to act on a request by a state-authorized offshore wind farm to participate in New England’s market for future energy demand.
- The attorney general of New York, joined by nine other states, sued the U.S. Department of Energy to try to get the federal government to pull some of its weight in the move towards reducing emissions. This suit seeks an end to the delay in implementation of certain energy efficiency standards that will result in significant consumers savings and decreased pollution.
- 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 a Public Service Commission formal case urging that infrastructure decisions be made in line with the District’s clean energy goals. The attorney general of Rhode Island questioned the role of a new natural gas plant given the state’s greenhouse gas reduction goals.
- The attorney general of Illinois, at both the district court and circuit court level, has successfully defended the state’s zero emission credit (ZEC) program, which compensates qualifying nuclear generators for the zero carbon emissions attributes of their energy generation. During the Seventh Circuit Court of Appeals litigation, the attorneys general of California, Connecticut, Massachusetts, New York, Oregon, Vermont and Washington filed an amicus brief in support of Illinois’s authority under the Federal Power Act to shape its own power generation mix through the development of the ZEC program. More recently, the Illinois attorney general filed a brief with the Supreme Court, urging the court to not hear an appeal of the Seventh Circuit’s decision upholding Illinois’s ZEC program and a similar decision in the Second Circuit upholding New York’s ZEC program. The Supreme Court sided with the attorney general of Illinois and denied the petitions to hear appeals of the Illinois and New York ZEC programs.
- The attorney general of Virginia prevailed 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 succeeded in defending the state’s moratorium in federal district court, the Fourth Circuit Court of Appeals and, finally, the Supreme Court. The Supreme Court held that while the Atomic Energy Act provides the Nuclear Regulatory Commission with wide authority over the nuclear fuel life cycle, the legislation does not preempt state uranium mining laws, such as Virginia’s 1982 prohibition on the activity. The Trump administration had filed an amicus brief in support of the mining company that had been seeking to lift Virginia’s ban on uranium mining.
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.
- Grid modernization efforts present an opportunity to encourage competitive procurement for technology such as advanced metering infrastructure. The attorney general of Massachusetts has participated 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.
- Attorneys general have acted to ensure that consumers are not on the hook for costly natural gas infrastructure that crowds out investments in clean energy. The attorney general of Massachusetts initiated an inquiry into costly and abusive natural gas company scheduling practices. The attorney general of New Jersey challenged FERC approval of an expensive natural gas pipeline. The attorney general of North Carolina requested that a utility revise its long term planning document as the document should take into account the costs to ratepayers from climate change caused by the utility’s reliance on natural gas power generation. The Illinois attorney general secured a $14 million settlement with a gas company that had overcharged costumers with its costly pipeline replacement program.
- The attorneys general of Connecticut, Illinois, Michigan, Massachusetts, New Mexico, and Vermont have taken action to protect consumers from deceptive marketing practices by competitive retail electricity suppliers, residential solar providers, and scams run by individuals. The attorney general of Connecticut 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, and secured refunds for electricity consumers harmed by electric suppliers’ rate notice errors. The attorney general of Massachusetts reached a $5 million dollar settlement with an energy provider that had engaged in deceptive and unfair sales practices.
- Attorneys general have also insisted that consumers be provided with the information they need to make informed choices about how they acquire their energy. The attorney general of Illinois initiated legislation that passed the Illinois legislature, and is before the Governor, 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. Likewise, the attorney general of Connecticut warned consumers of errors on their bills that might mistakenly lead them to believe that they could save money by switching to third party electric suppliers.
- Attorneys general have also opposed costly rate increases for consumers. The attorney general of Minnesota 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 Kentucky 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 Michigan has saved utility consumers more than $300 million in proceedings before the Michigan Public Service Commission since taking office in January 2019 and has announced her intention to intervene in several more utility rate cases to save consumers money.
- Attorneys general have insisted that utility ratepayers benefit from the corporate tax cut that was included in the 2017 tax legislation. The attorney general of Michigan filed testimony 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 Massachusetts attorney general 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 Pennsylvania sued a fracking company for alleged unfair and deceptive conduct when dealing with impacted landowners. In March 2019, one of Pennsylvania’s appellate courts upheld the trial court’s decision to allow the attorney general’s complaint against the fracking company to proceed.
- The attorney general of North Carolina challenged in the North Carolina Supreme Court 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 Massachusetts has been active in FERC proceedings to ensure that consumers are not on the hook for excess costs stemming from retaining natural-gas fired units in the name of fuel security. This has included filing a brief in opposition to the generator’s proposed cost of service agreement in a FERC hearing and insisting on the company's compliance with FERC's order accepting the cost of service agreement subject to conditions.
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 environmental reviews recognize the climate impacts of the decision.
- The attorney general of New York led a coalition of seven attorneys general in insisting that FERC consider greenhouse gas emissions in determining whether to approve natural gas projects. The attorney general of New Jersey challenged FERC’s approval of a natural gas pipeline that did not attempt to mitigate environmental impacts associated with the pipeline.
- The attorney general of New York has successfully 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 general of Washington, along with a coalition of six other attorneys general, 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 is enforcing state environmental laws, regulations, and permits against a pipeline company for alleged violations of runoff and other water quality requirements related to pipeline construction.
- The attorney general of Massachusetts petitioned to intervene in a Nuclear Regulatory Commission proceeding to raise serious concerns regarding the financial ability of an energy company to safely decommission a nuclear power plant.