by David Pettit

On August 1, 2012, the U.S. House of Representatives passed the Resolving Environmental and Grid Reliability Conflicts Act of 2012 (H.R. 4273) with broad bipartisan support to address the unenviable position of power plants that could become subject to liability under the Clean Air Act for complying with an order to operate and ensure reliability under the Federal Power Act. 

This tension between the Department of Energy’s (DOE) authority under the Federal Power Act to order power plants to run in emergency situations and compliance with the Clean Air Act and regulations promulgated thereunder has already resulted in fines and lawsuits for some power plants, as discussed in an article published with The Electricity Journal entitlted “Walking the Line Between the Clean Air Act and the Federal Power Act:  Balancing Emission Reductions and Bulk Power Reliability.”  With a potential increase in the number of power plant retirements on the horizon due to additional emissions regulations such as the Mercury and Air Toxics Standards (a/k/a Utility Maximum Achievable Control Technology or Utility MACT), this conflict is likely to become more common unless remedial action is taken.

H.R. 4273 seeks to address this situation by amending the Federal Power Act so that a party complying with an emergency-run order by DOE will not be subject to any requirement, civil or criminal liability, or a citizen suit as a result of noncompliance with any environmental law or regulation caused by operating under the emergency-run order.  These emergency-run orders must expire within 90 days of being issued.  DOE may renew an order for additional 90-day periods, although it must then consult the federal agency with expertise in the environmental interest being superseded and include conditions deemed necessary by that agency to minimize environmental impacts in the renewed order.  However, DOE may nonetheless exclude any such condition if it determines that the condition would prevent the order from addressing the emergency so long as it provides a public explanation for the exclusion. 

H.R. 4273 is currently before the Senate Committee on Environment and Public Works.