Clean energy advocates bring lawsuit to roll back FERC’s latest PURPA rules

Source: By WILLIAM DRISCOLL, PV Magazine • Posted: Thursday, June 3, 2021

New rules “effectively gut” the only federal policy requiring utilities to buy renewable energy, the lawsuit says, arguing that FERC’s rulemaking exceeded its authority and conflicts with Congress’s goals.

The Montana Environmental Information Center and nine other solar and environmental groups have challenged in federal court the Federal Energy Regulatory Commission’s (FERC’s) recent rulemaking on PURPA that they said “effectively guts” the law’s implementation.

The Solar Energy Industries Association (SEIA) filed a separate petition.

The PURPA law “is the sole federal policy requiring monopoly utilities to purchase energy from renewable sources,” the solar and environmental petitioners said.

“PURPA has always been unpopular with monopoly utilities and their allies,” which have consistently “lobbied for PURPA repeal and weaker FERC rules,” the petition said. FERC “finally relented to that lobbying” in changing the PURPA regulations in 2020.

The full name of PURPA is the Public Utility Regulatory Policies Act of 1978.

FERC’s new PURPA regulations “cut off” Congress’s goal of encouraging development of renewable energy, the petitioners said, just as “declining costs for renewable energy and rising costs for monopoly utility fossil fuel generation finally made small scale wind and solar under PURPA competitive.”

The lawsuit, filed with the U.S. Court of Appeals for the Ninth Circuit, challenges what petitioners called “four unlawful aspects” of FERC’s rulemaking that “exceed the agency’s authority and conflict” with Congress’s goals:

  • That FERC failed to conduct an environmental impact analysis that would have shown that regulations “undermining renewable energy development” would have significant environmental impact.
  • That FERC, “contrary to the narrow authority provided” to determine whether facilities are at the same site, and thus subject to PURPA’s 80 MW size limit, “invented a new effective cap on generation owned by the same entity within a wide region.”
  • That FERC eliminated the right of developers of PURPA “qualifying facilities” to establish a long-term price for their energy at the time of contract formation, a change that forecloses project financing options and “conflicts with Congress’s goals.”
  • That FERC “unlawfully” shifted the burden of determining a utility’s avoided costs, on which compensation under PURPA is based, from the state regulator to the developer of a qualifying facility.

The solar and environmental group’s petition asks the court to “vacate” FERC’s rulemaking order—that is, to rescind the regulations.

Four of the solar and environmental petitioners—Montana Environmental Information Center, Sierra Club, Center for Biological Diversity, and Vote Solar, were represented by Earthjustice. Five others—Appalachian Voices, Energy Alabama, Georgia Interfaith Power & Light, North Carolina Sustainable Energy Association, and Upstate Forever–were represented by Southern Environmental Law Center. One petitioner, Community Renewable Energy Association, was represented by the law firm Richardson Adams.