10 Attorneys General Oppose Emergency Order for FirstEnergy in Comments to DOE

Attorneys general say FirstEnergy request is legally flawed, would undermine the energy market and harm customers

May 10, 2018
Contact: Christopher Gray

Washington, D.C.- Massachusetts Attorney General Maura Healey led a coalition of ten attorneys general in filing comments yesterday with the Department of Energy (DOE) warning Secretary Rick Perry that he cannot invoke emergency powers under the Federal Power Act (FPA) to prop up failing power plants. FirstEnergy Solutions has asked DOE to declare a grid "emergency" under Section 202(c) of the FPA, based on anticipated retirements of non-competitive power plants in the region.

In the letter, the attorneys general explained that "[l]ong-term trends, possible future retirements, and FirstEnergy's dissatisfaction with its declining profits do not constitute a 'sudden' 'emergency' within the meaning of section 202."  The attorneys general also noted that FirstEnergy's requested order would "undermine competitive regional power markets, burden customers with excessive costs, undercut state energy laws and policies, and exacerbate pollution and public health harms."

"State attorneys general will not let federal authorities fabricate a non-existent energy 'emergency' as an excuse to protect market share for companies that are losing out to clean energy competitors," said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center. "Attorney General Maura Healey and her colleagues will continue to fight on behalf of energy consumers, competitive power markets, and state policies that promote clean energy."

In addition to Attorney General Healey, attorneys general from Connecticut, Illinois, Maryland, North Carolina, Oregon, Rhode Island, Virginia, Washington, and Washington, D.C. signed the letter.

In late March, FirstEnergy, an electric utility with coal and nuclear plants in the Ohio and mid-Atlantic region, announced that it would begin the process of shuttering plants unless the federal government intervened. FirstEnergy claims that retirement of the facilities constitutes a grid emergency. Under Section 202(c) of the Federal Power Act, DOE can order temporary connections for the generation, delivery, interchange, or transmission of electricity in the event of an emergency. Orders are typically used to ensure reliable power supply after sudden emergencies, such as the 2003 blackout in the Northeast and Upper Midwest and after Hurricane Katrina. As explained by the attorneys general, upcoming plant retirements are due to long-term trends in the electricity markets - "[s]uch trends are natural in a competitive market, and are far from the wartime disturbances or other unforeseen events contemplated in section 202(c)."  Environmental groups, the majority of power plant owners, and many business organizations, oppose a Section 202(c) bailout.

Since January 2017, state attorneys general have taken nearly 100 actions to advance and defend progressive clean energy, climate and environmental laws and policies. View all actions on the State Energy & Environmental Impact Center's online hub.

ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER: The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.