MIDTERMS 2022 in the United States: the electricity sector focuses on federal agencies in accordance with the main laws

In the wake of a landmark U.S. climate law, new federal moves to curb global warming emissions from the U.S. power sector could largely play out in administrative agencies in the second half of the first. term of President Joe Biden.

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With much of the heavy legislative work done, observers anticipate a flurry of energy sector regulations from the US Environmental Protection Agency and the Federal Energy Regulatory Commission.

But the fate of the recent Climate Act and several other major energy and climate pieces of legislation, as well as future Biden administration nominees, could hinge on the outcome of the November midterm electionsaccording to political experts.

Many actions of the agency are planned

The United States Supreme Court dealt a blow to the Biden EPA in its recent West Virginia vs. EPA climate decision by restricting the agency’s power under the Clean Air Act to regulate in a way that would result in a nationwide shift away from coal-fired electricity.

There, the court’s 6-3 conservative majority, for the first time, invoked what is called the major issues doctrine. The doctrine holds that agencies must indicate clear authorization from Congress when issuing regulations “of great political or economic significance.”

Democrats then used the Cut Inflation Act to clarify the EPA’s authority over greenhouse gases, using a section to say greenhouse gases are all air pollutants in under the Clean Air Act.

The change did not directly affect the Supreme Court’s decision, but could bolster future legal arguments that Congress clearly intended to give the EPA broad authority to regulate greenhouse gases as pollutants. atmospheric.

“While it’s great that Congress has confirmed that climate pollution is air pollution and therefore subject to the Clean Air Act, there was no doubt about it,” said Clean Air Task Force attorney Jay Duffy. . “In West Virginia, the court rejected how the EPA regulated greenhouse gases. It did not question its authority to regulate them.”

The EPA is expected to issue a new rule proposal to address greenhouse gas emissions from the electricity sector in March 2023 and, around the same time, issue a final rule regarding harmful smog emissions that drift across state lines.

“The EPA has retained a lot of authority and in fact, in fact, the [Inflation Reduction Act] was a good safety net for his authority in regulating carbon emissions and tackling global pollution in the electricity sector,” said Holly Burke, director of communications for advocacy group Evergreen Action.

Also in March 2023, the EPA plans to unveil proposed new emissions standards for passenger vehicles and light trucks for the 2027 and later model years. In May 2023, the agency is then expected to issue a final rule regarding methane emissions from new and existing oil and gas facilities.


FERC, an independent agency chaired by Democrat Richard Glick, could also issue several regulations in 2023 that would help accelerate the deployment of clean energy.

In April, FERC issued a long-term advisory transmission planning and the Cost Allocation Proposal (RM21-17) which would require regional network planners to consider projected changes in future generation and consider factors such as projected increases in electricity demand. FERC also issued a proposed rule in June aimed to resolve a blockage of around 1,400 GW of clean energy interconnection by requiring grid operators to prioritize generation projects closest to achieving commercial operation.

Glick, who was reappointed for a second term as chairman, said accelerating transmission construction is one of his top priorities.

Climate, allowing prospects

Over the past two years, Biden and Democratic lawmakers have won major victories with the passage of the Inflation Reduction Actor IRA, and the bipartisan Infrastructure Act of 2021. The Democrats’ party line, the IRA, has committed nearly $370 billion over 10 years to energy and climate action and represents the largest investment in action climate change in US history, according to party leaders.

The two bills combined are expected to cut U.S. greenhouse gas emissions by about 40% from 2005 levels by 2030. But those reductions still fall short of Biden’s commitment to Halve economy-wide emissions by 2030.

If Democrats retain control of Congress, they hope to close that gap, including passing climate and clean energy provisions that were left out of the IRA. Among other things, the law rejected a proposed investment tax credit for transmission projects and excluded a national clean electricity standard championed by many Democrats.

Congress has made substantial investments in climate and energy in recent years – through the IRA, the Infrastructure Act, the CHIPS and Science Act and the Energy Act of 2020 – which could limit the appetite of lawmakers to spend more.

“There’s a pretty clear recognition that Congress is probably done spending money on energy and climate for now,” said Sasha Mackler, executive director of the Bipartisan Policy Center’s energy program. “That’s a really big set of priorities from the energy and climate community, and that’s a lot of resources now coming out for those issues.”


Mackler said Congress is likely to maintain a focus on authorizing reform, supply chain concerns for clean energy technologies, potential trade mechanisms like a carbon border adjustment and sectoral decarbonization policies. Permit reform is a priority for both sides, with a long and complicated project approval process slowing down both clean energy and fossil fuel projects.

But divisions between and among parties over how to streamline permissions could push the issue to the next Congress. If Republicans regain a majority in both houses of Congress in the midterm elections, they could seek more aggressive reforms that lower barriers to gas pipelines and other fossil fuel projects and support measures to boost domestic production of oil and gas amid criticism of Biden’s federal hire policies.

A Republican-dominated Congress could also review spending and implementation of the IRA and the bipartisan Infrastructure Act and use the appropriations process to slow Biden’s energy and climate agenda. GOP lawmakers are likely to conduct “adversarial oversight of how these programs are implemented,” Mackler said.

Biden’s candidates in danger

The midterm elections could also put Biden’s nominees in key climate and energy positions at risk.

FERC’s Glick will need to be reconfirmed by the Senate by the end of the year to avoid dropping the commission. Although Biden could renominate the president in 2023, that confirmation process would be trickier if Republicans took control of the upper house. GOP lawmakers have opposed Glick’s stance on pipeline licensing and his efforts to update market rules in a way that critics say threatens network reliability.

Without Glick, FERC would have two Republican commissioners and two Democratic commissioners, which could lead to 2-2 partisan deadlocks that could hamper the commission’s action.

“The theme of all of this is uncertainty,” said Larry Gasteiger, executive director of the WIRES transmission business group. “The only thing we really don’t like is uncertainty, because it makes it difficult to plan, to make decisions about what to do in the future. So the sooner all of this will be resolved , the better.”

A GOP-majority Senate could also hamper Biden’s efforts to confirm federal judges who have major influence on the interpretation of energy and environmental laws.

The Supreme Court’s recent ruling on the EPA’s regulatory powers underscores “the importance the federal courts play in climate policy,” said Craig Auster, vice president of policy affairs for the League of Conservation Voters.

“As long as climate policies are passed, we need good federal judges confirmed to enforce the laws,” Auster said.

About Keith Tatum

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