State attorneys general prepare to fight for clean energy rights

Forward-leaning state laws and policies are accelerating the uptake of clean energy and showing the way to a decarbonized electricity sector that produces broad-based, equitable and economic benefits to state residents. Unfortunately, the federal government, acting through the Federal Energy Regulatory Commission (FERC), is dismissive of states’ statutory rights to shape their desired energy mix. 

Indeed, FERC is widely expected to soon accept capacity market changes that will bar state-supported clean energy from participating in capacity markets, undercutting states’ lawful clean energy preferences and forcing residents to underwrite expensive and unneeded power supplies.  

As their states’ chief legal officers, state attorneys general are suiting up for the fight. A new report from the State Energy & Environmental Impact Center, “State Attorneys General: Empowering the Clean Energy Future,” confirms that state attorneys general have an essential role in advancing the vision of a clean energy future. And they have many tools at their disposal to do so. The report catalogues their exemplary actions, as well as the authority of attorneys general in each state, to act to defend against attacks on state clean energy policies and to promote the growth of clean energy. 

The report also highlights the opportunities attorneys general have to build upon their ongoing work in fighting rollbacks of Clean Air Act rules by encouraging innovation and bolstering state economies through clean energy advocacy. 

State attorneys general are crucial to defining and defending the broad scope of state authority to regulate in-state electricity generation and retail sales, as recognized in the Federal Power Act and decades of case law. And attention and advocacy on clean energy issues is well-aligned with traditional attorney general responsibilities to protect consumers and the environment and promote competition. The work of state attorneys general to resolve conflicts between states and powerful competing interests such as the federal government, incumbent energy providers and even unscrupulous marketers is key to promoting the states’ interest in equitably expanding their clean energy production and use. 

State attorneys general, as the report documents, have actively advocated for clean energy in regional wholesale electricity markets. Several attorneys general in the PJM region are pressing FERC and PJM to recognize states’ rights to determine their energy mix in crafting PJM’s capacity market rules. Massachusetts Attorney General Maura Healey, tasked with ratepayer advocate duties under state law, has been active in ISO New England proceedings, taking firm pro-consumer, pro-clean energy stands on issues such as Vineyard Wind’s request for a waiver to participate in the ISO’s forward capacity auction and ISO New England’s fuel security modeling. 

Beyond electricity markets, state attorneys general have told FERC that it must meaningfully consider the need for new pipeline capacity — as well as the associated greenhouse gas emissions — when evaluating a certificate application under the Natural Gas Act. As Commissioner Rich Glick has stated, “Claiming that a project has no significant environmental impacts, while at the same time refusing to assess the significance of the project’s impact on the most important environmental issue of our time, is not reasoned decision-making.” Further, attorneys general have called FERC out for averting more criticism of this policy by announcing it in a specific certificate docket, rather than in its pending proceeding to consider changes to its certificate policy. 

State attorneys general are key advocates not only at the federal level, but also in their states. States are on the frontlines of adapting to and mitigating damages from climate change. Attorneys general have the authority to promote the expansion of a traditional view of “costs” in utility proceedings that goes beyond the short term to include the mid- to long-term cost to consumers of climate change, which may be hidden but are more and more frequently identified and quantified in state proceedings. 

On the heels of Climate Week, the call to move to reduce carbon emissions from electricity generation is pronounced and urgent. Markets alone — particularly those in which carbon emissions and climate damages continue to be externalities pushed onto states and consumers — will not achieve the necessary results. 

Government involvement is needed to ensure that clean energy programs are equitable and tailored to work in communities that are bearing the brunt of climate change, but where energy bills are already high and concerns about energy projects displacing residents may be pronounced. States across the country have shown that a clean energy transition can be achieved equitably and at a reasonable cost with positive impacts on in-state economies, as jobs in the clean energy sector grow and are, on average, higher paying. 

The center’s report examines the role of state attorneys general in all of these efforts and highlights the importance of the work that has been done and the work ahead of us. 

Jessica Bell is a clean energy attorney for the State Energy & Environmental Impact Center at the NYU School of Law. She previously worked on energy and environmental matters in private practice (at Spiegel & McDiarmid LLP) and the government (for the Environmental Protection Agency).