Energy regulators: Perry’s coal plan wasn’t legally defensible

Two of the five energy regulators who voted to reject Energy Secretary Rick Perry’s plan to prop up coal and nuclear power plants said Tuesday that it didn’t pass legal muster.

Republican Neil Chatterjee and Democrat Cheryl LaFleur, both commissioners in the Federal Energy Regulatory Commission (FERC), said at a Bipartisan Policy Center event that Perry and other supporters of the plan never showed that it would withstand court challenges or otherwise fit into the laws that govern FERC.

“I came to the conclusion that my colleagues did, that while I feel Secretary Perry asked the right question, he proposed the wrong remedy,” Chatterjee said.

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“The remedy that was proposed in the [plan] did not meet the legal test that the commission needed.”

LaFleur agreed, saying that Perry’s proposal “was not just and reasonable” — the standard FERC must use under the Federal Power Act.

“A resilience issue had not been demonstrated,” she said.

Perry asked FERC, an independent commission, in September to require that electric grid operators pay more for electricity from power plants with at least 90 days of fuel on-site, a standard that only coal and nuclear could meet.

It was made in the name of resilience, under the argument that if coal and nuclear plants keep closing, the grid is at risk of extended blackouts.

Chatterjee, a Kentucky native, said on Tuesday he is sympathetic to the plight of coal communities.

He was the most vocal supporter on FERC of taking some sort of action to prop up coal and nuclear plants, but in the end, he voted with his four other colleagues last week to reject the plan.

Chatterjee said that the pro-coal and nuclear nature of the plan was a big challenge, since FERC’s regulations must be fuel-neutral.

“By focusing on 90 days of on-site fuel, it seemed to be favoring certain fuel sources, and that’s why it didn’t meet legal muster and we voted unanimously to turn it down,” he said.

FERC’s action last week also formally asked electric grid operators to submit various information about how they deal with resilience issues. The commission plans to review those answers in three months and consider possible further actions.