On August 1, 2016, the New York Public Service Commission (the “NYPSC” or “Commission”) issued an Order Adopting a Clean Energy Standard (CES Order).[1]  In the CES Order, the Commission adopted the State Energy Plan (“SEP”) goal that 50% of New York’s electricity is to be generated by renewable sources by 2030 as part of a strategy to reduce statewide greenhouse gas emissions by 40% by 2030.  Consistent with the SEP goal, the Commission also adopted a Clean Energy Standard (“CES”) consisting of two major components.  Renewable Energy Standard (“RES”) and a Zero-Emissions Credit (“ZEC”) requirement.  The RES consists of a Tier 1 obligation on every load serving entity (“LSE”) to serve their retail customers by procuring new renewable resources, evidenced by the procurement of qualifying Renewable Energy Credits (“RECs”) or through Alternative Compliance Payments (“ACPs”).  The RES also includes a Tier 2 maintenance program with the purpose being to provide support to those “at risk” eligible facilities which, if not for the support, are demonstrated to be economically inviable.  The ZEC requirement consists of an obligation that LSEs purchase ZECs from NYSERDA under long-term contracts in amounts proportionate to load served.

Following the issuance of the CES Order, several parties filed petitions for rehearing. In an “Order on Petitions for Rehearing” issued on December 15, 2016 (the “Rehearing Order”), the NYPSC:  (a) denied most of the petitions because they did not raise mistakes of law or fact or new circumstances warranting rehearing; (b) noted that some of the eligibility issues raised will be further explored but that granting rehearing is not the appropriate approach for addressing those issues; and (c) approved Exelon’s petition requesting elimination of the condition requiring transfer of the FitzPatrick Nuclear Facility in order for the ZEC agreements to go beyond the first tranche of the program (2 years).

REC Requirement

Tier I Eligibility – Hydropower

In its petition for rehearing, H.Q. Energy Services (U.S.) Inc. (“HQ”) argued: that excluding existing large scale hydroelectric (“LSH”) generation from the RES as well as all hydroelectric involving storage impoundment is contrary to the public policy goals of New York and the Commission’s obligation to ensure reliability and cost-effective electric service to the State’s consumers.  Specifically, HQ argued that the Commission’s reliance on old Renewable Portfolio Standard (“RPS”) findings concerning impoundments is improper and concerns about methane emissions are baseless.  HQ argued that all forms of generation included in the baseline of existing renewable generation as described in the CES Order should also be eligible for RES Tier 1 compensation.

In rejecting HQ’s arguments, the NYPSC ruled that the exclusion of LSH generation and all hydro electric involving storage impoundments is supported by the record, including “considerable information” regarding the environmental impacts of LSH power and impoundment (Rehearing Order at 6). The NYPSC did offer HQ the opportunity to produce evidence “countering the impact of Impoundments,” which evidence the NYPSC offered to consider in its triennial reviews (Rehearing Order at 7).

Maintenance of Baseline Resources

Several parties asserted that by counting all existing renewable resources toward the 50% mandate by the State, but not providing a mechanism for compensating those existing resources, the CES Order creates confusion, market disruption, and unfair complications for existing generators. Others argued that without adequate compensation, some existing baseline resources will sell their energy and attributes into neighboring markets, noting Massachusetts’ recent legislation requiring utilities to enter into long-term power purchase agreements (“PPAs”) with renewable generators.[2]  The Commission concluded that it does not have sufficient information to support the assertions that all baseline merchant facilities are at risk of ceasing operation or fleeing the New York energy markets, and observed that, to date, there has been no significant attrition of hydro or wind resources.

Notwithstanding these observations, the Commission agreed that it is in the best interests of electric consumers to retain existing renewable resources, provided that the cost of retention is less than the cost to replace them with new facilities under the Tier 1 REC program. For that reason, the Commission found that it is necessary to begin immediately to further develop the eligibility criteria for Tier 2 to ensure that cost effective retention of baseline resources is achieved to the extent practicable.  Therefore, the Commission required Department of Public Service Staff to prepare, for Commission review, recommendations for consideration of eligibility changes for Tier 2, in consultation with stakeholders, without waiting for the first triennial review.

Eligibility of Incremental Pre-2015 Resources

Several parties argued that the CES should recognize incremental renewable power that flows into the New York control area and is not currently counted in the 2014 Baseline inventory, or that is delivered over new transmission lines.

In recognizing that such 2014 Baseline inventory will contribute towards achieving the 50 by 30 goal, the NYPSC concluded that the intent of the mandatory obligation component of the RES program is to encourage investments in new renewable resources generation infrastructure (Rehearing Order at 16).  The NYPSC directed its Staff, however, to consider the question on how to treat new voluntary arrangements to purchase incremental existing renewable resources that do not qualify under Tier 1 but can provide long lasting benefit to New York.

Miscellaneous Rulings

In a series of miscellaneous rulings, the NYPSC: (a) directed Staff and NYSERDA to complete their assessment of what revisions can be made to the testing requirements for syngas technologies to establish eligibility for participation; (b) rejected the argument that biogas projects have the potential to provide environmental and economic benefits beyond the production of renewable energy and therefore, should be eligible for increased attributes and related increased costs; and (c) rejected the argument against the application of the REC and ZEC requirements to municipal utilities because much of the electricity consumed by customers of these entities is already derived from renewable power.

ZEC Requirement

State Law

Several parties challenged aspects of the ZEC requirement and the NYPSC’s authority to create such a requirement, claiming that the NYPSC had exceeded its authority under the State law. In concluding that it acted well within its authority, the NYPSC noted that PSL §5(2) requires the Commission to consider preservation of environmental values and the conservation of natural resources and PSL §66(2) gives the Commission the responsibility of preserving public health.  Furthermore, the NYPSC concluded:  (a)  the balancing the costs, environmental impacts, and rate impacts of various options is well within the Commission’s expertise; and (b) the ZEC Requirement is the best way to preserve the affected zero-emissions attributes while staying within the State’s jurisdictional boundaries.

Federal Law

Several parties argued, consistent with the Supreme Court’s decision in Hughes[3], that the ZEC requirement impinges upon the jurisdiction of the Federal Energy Regulatory Commission (“FERC”) over wholesale rates.  Others asserted that the ZEC requirement discriminates against out-of-state resources.  The NYPSC rejected both as incorrect.

As the NYPSC noted in the CES Order, neither the ZEC requirement nor any other aspect of the CES program inappropriately intrudes on the wholesale market or interferes with interstate commerce. FERC has determined that attribute credit payments do not interfere with wholesale competition.  Further, the ZEC requirement does not establish wholesale energy or capacity prices, it only establishes pricing for attributes completely outside of the wholesale commodity markets administered by the NYISO and regulated by FERC.  According to NYPSC, the ZEC requirement does not impinge upon interstate commerce.  ZECs, like RECs, provide a revenue source for generation assets that do not obtain sufficient revenues from the NYISO markets to operate.  This requirement in no way requires specific power purchases or otherwise administratively favors instate economic interest over others.

Miscellaneous Rulings

The NYSPC also addressed and dismissed a number of arguments that it had erred in failing to explain key aspects of the ZEC Requirement, including how the Commission planned to reconcile this requirement with the rules governing wholesale markets in New York. Finally, the NYPSC accepted Exelon’s request to remove the CES Order requirement which conditioned the 12-year duration of the ZEC contracts on transfer of the James A. FitzPatrick Nuclear Power Plant by September 1, 2018.  The Commission’s purpose in imposing the condition was to attract a buyer for the Fitzpatrick facility so as to ensure the preservation of the zero-emissions attributes of all of the qualifying facilities given the publically known intentions of the FitzPatrick facility’s current owner, Entergy, to close the plant absent a transfer.  Because the intent of the condition has been met by Exelon, now being contractually obligated to purchase the FitzPatrick facility, Exelon’s request for rehearing is granted and its Petition to remove the condition is approved.

Implications

As the NYPSC and its Staff move forward to implement the REC and ZEC requirements for the first compliance year, namely, calendar year 2017,[4] it remains to be seen whether parties will mount additional legal challenges to the CES Order, particularly with respect to the ZEC requirement and whether that requirement will be upheld as comparting with FERC’s jurisdiction over wholesale power sale rates. As of the date of this writing, a group of merchant generators, including Dynegy and NRG, filed suit in Federal District court in New York challenging the ZEC requirement and its financial assistance to nuclear generation facilities as disruptive of the state’s wholesale power markets, as infringing on FERC’s exclusive jurisdiction over those markets, and as violative of the Commerce Clause of the U.S. Constitution.

In Hughes, the Supreme Court left open the opportunity for a state to support energy markets through policies that do not intrude in FERC – regulated markets.  It remains to be seen whether the courts recognize that the ZEC program is designed differently from the Maryland subsidy program struck down in Hughes.  Unlike the Maryland program, the ZEC subsidy (as characterized by the NYPSC) is not linked to prices set in FERC – regulated markets but rather to what the NYPSC deems to be the difference between the cost to operate and market revenues. As well, the NYPSC has asserted that the ZEC price sets a value for an emission-reduction attribute and not a commodity, and that price is based on an administratively-determined societal cost of carbon.  We will see if the court views this difference as being dispositive.

[1] Case 15-E-0302, et al., Clean Energy Standard, Order Adopting a Clean Energy Standard (issued August 1, 2016).

[2] 2016 Mass. Act Ch. 188.

[3] 136 S. Ct. 1288 (2016)

[4] On November 1, 2016, the NYPSC issued a “Clear Energy Standard – Phase I Implementation Plan Proposal” proposal prepared by NYPSC Staff and NYSERDA Staff and dated October 31, 2016 (“CES Implementation Plan”).  The NYPSC is currently considering party comments regarding the CES Implementation Plan.