Eighteen Former State Public Utility Commissioners File Amicus Brief Regarding EPA's Clean Power Plan

February 23, 2016

Today, eighteen former state public utility commissioners that represented the interests of consumers in over a dozen states asked leave to file an amicus brief regarding the EPA Clean Power Plan before the Federal Court of Appeals for the DC Circuit.  The full brief is available below and a summary of the brief is as follows:

Lost in the litigation of EPA’s Power Plan is its permanent and irreversible impact on state regulators and state institutions. The Power Plan traduces state utility regulation, the Federal Power Act, current state institutional arrangements, and the regulatory compact. The expansiveness of the ‘system’ EPA deems regulable under the Power Plan eliminates the authority of state institutions. This includes where to regulate utilities, how to regulate utilities, and when to regulate utilities. All of these state institutional prerogatives, and the attendant exercise of states’ historic police powers, become subordinate to the Power Plan’s requirement that state air regulators, with EPA behind them, control the electric generation mix and the dispatch of that generation mix within any given state. EPA’s use of subcategory performance standards does not mitigate these institutional impacts, as the Power Plan’s subcategory performance standards are the product of a nationwide, system-wide resource planning exercise. Rather, EPA’s Power Plan nullifies the regulatory compact, long held as the basis by which utilities and regulators keep faith, and more important, the electricity flowing. The only historic role left to state utility regulators is to present customers with the bill for the Power Plan’s implementation."

The Electric Reliability Coordinating Council, a broad-based coalition of energy companies committed to the continued viability of diverse, affordable and reliable electric power supply in the United States, provided funding for the preparation of the brief.  ERCC Director Scott Segal noted that, “The day the CPP is actually implemented will mark a fundamental change in the way state regulators for decades have ensured the lights stay on at affordable rates.  With very little forethought, EPA has tried to turn the system of cooperative federalism on its head.  These dedicated public servants tell exactly how.”

For further comment on the brief and its contents, please contact counsel for the amici and former Chairman of the Colorado Public Utilities Commission Ray Gifford:

Raymond L. Gifford
WILKINSON BARKER KNAUER, LLP
1755 Blake Street, Suite 470
Denver CO 80202
Tel: (303) 626-2320
Email: rgifford@wbklaw.com