Just over a year ago, I visited Albany, New York to attend a public hearing held by the New York Public Service Commission. I joined a number of friends – new, old and formerly just virtual – who were there to find out if the NYPSC would make the important decision to give upstate nuclear plants credit for their clean electricity production.
The good guys won that particular battle.
We celebrated the victory with sparkling grape juice; it looks a bit like champagne but does not violate laws against alcohol consumption in public parks.
Within days after the PSC decision was announced several competing power generators and their trade group filed a legal challenge to the program. The existence of that court case has likely played a role in the slow pace of additional state initiatives to enact similar programs to protect their operating nuclear plants.
Nuclear plants in New York will continue to receive payments collected from all in-state load serving entities (LSE) in recognition of their clean energy contributions. Those payments, which might be as high as $8 billion over a ten year period, may also be as low as zero during years in which the average wholesale price of electricity rises to a level at which selling power becomes profitable for the qualifying plants.
In a decision filed July 25, Judge Valerie Caproni dismissed the motions filed by various electrical generators and trade groups of electrical generators that challenged the constitutionality of the New York Public Service Commission’s decision to create a Zero Emission Credit program.
Plaintiffs had claimed that the state program to pay nuclear generators for an “out of market” service of clean energy generation was preempted by federal authority under the Federal Power Act and that the program violated the dormant Commerce Clause that gives Congress the power to regulate trade among the states.
The defendants and the intervenors responded by stating that the plaintiffs had no standing and that even if they did, their challenges would fail under proper application of the law. Judge Caproni agreed with the defendants and dismissed the motions filed by the plaintiffs.
She explained her reasoning in a richly-detailed, carefully-referenced, 47-page ruling.