WIRES: Supreme Court stay of Clean Power Plan provides time to address transmission

While it will be tempting for state policymakers to relax and take their time to consider implementation of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) following a Supreme Court stay of the rule, the power industry and states should use the time to address transmission planning needs, James Hoecker, counsel for the WIRES group, told TransmissionHub Feb. 11.

Those grid planning needs, which include fostering renewable resources, distributed generation (DG) and greater interregional connections, will continue regardless of the legal outcome of the CPP, Hoecker said.

“Strengthening the grid is of empirical importance to the U.S. economy irrespective of the timing of the CPP,” so regional transmission organizations (RTOs) and others that have been working on grid enhancements as part of regional compliance plans with the EPA rule “should not take their foot off the gas,” Hoecker said.

He said he believes RTOs have been trying to address the CPP and urging state agencies to think regionally about implementation plans and the role of transmission in carrying out those plans. Those state agencies, especially in states that challenged the CPP, may want to “kick back and savor the victory” of the Supreme Court decision, but a transmission build-out needs to continue because “the transformation that the industry is going through is not going to be stayed,” Hoecker said.

In comments to FERC and EPA, WIRES has maintained that transmission was not viewed as much of a solution to deliver low-carbon resources and aid implementation of the CPP, which “we think was a real oversight,” but now the Supreme Court has given the group more time to make that point, he said.

The stay from the Supreme Court, which WIRES labeled a “surprise” in a Feb. 10 statement and Bernstein Research deemed “highly unusual,” in a separate Feb. 10 statement, is a reprieve for those who challenged the final rule, with the stay lasting until a decision comes from the U.S. Court of Appeals for the D.C. Circuit on petitions to reject the CPP. Numerous states who had asked the D.C. Circuit to halt the rule hailed the Supreme Court move that prevents EPA from enforcing the CPP.

The rule called for states, by September 2016, to develop CPP implementation plans, with many expected to seek an additional two years to craft those plans, as allowed under the CPP final rule.

The Supreme Court ruling means that the deadlines set out in the rule cannot be enforced until the petitioners’ challenges have been heard and a decision is reached by the D.C. Circuit, Bernstein said in its analysis.

Because the high court rarely stays federal regulations prior to a decision by a federal appeals court, the move “may reveal doubts among the Court’s five conservative judges as to the plan’s legality,” Bernstein said.

Amid the legal wrangling after the stay has been issued, the power industry will continue to alter the generation mix in the country and the role of utilities will change with more competition, and those changes need a strong transmission grid, Hoecker told TransmissionHub.

The transmission grid will be used differently with the integration of cleaner generation resources, demand response and DG assets, but it is a facilitator of those resources, not an enemy of those resources, said Hoecker, a former chairman at FERC.

“We have to somehow make this elephant dance,” he said in reference to the transmission grid being viewed as a resilient asset and not a costly option compared with other resources.

In its statement, WIRES said that ongoing industry changes and state and federal policies make a stronger, high-voltage grid imperative, regardless of the controversies surrounding the CPP.

Given the long lead time it takes to develop transmission, “we should not delay the planning being done to identify the facilities that potentially would be needed as part of states’ CPP compliance plans to meet the carbon reduction requirements in a cost-effective manner and to keep the grid reliable," WIRES President Bob McKee said in the statement.

McKee is manager of regulatory relations and policy at American Transmission Company.