A Democratic clean energy policy agenda, if Kamala Harris is elected president in November, depends on support from the Federal Energy Regulatory Commission and the fate of its contentious electricity transmission rule.
The nearly 1,300-page Order 1920 approved by FERC’s Democratic majority in May changes nearly everything about how operators of the nation’s high-voltage power grids would plan over the long term for extreme weather, data center power demand, and a costly transition from coal- and gas-generation to renewable energy.
The rule’s future could veer in any of multiple directions depending on whether Harris or former President Donald Trump wins, or bipartisan legislation speeds energy infrastructure permitting, or the U.S. Supreme Court steps in, experts and analysts told POLITICO’s E&E News.
“The challenges facing the commission are going to be really driven by a lot of external factors, and we don’t know what those are right now,” said William Scherman, former FERC general counsel.
Issued by FERC’s two Democratic commissioners over a sizzling dissent from FERC’s lone Republican commissioner at the time, Mark Christie, the order does not specifically mandate connections to wind and solar power. But its requirement for long-term planning and regional sharing of big project costs is essential to increasing the capacity of the system, to build pathways for carbon-free electricity generation stimulated by the Inflation Reduction Act’s tax incentives, according to climate modelers.
In his dissent to the order, Christie called it a smokescreen meant to disguise the order’s real purpose of promoting the wind and solar generation Democrats want while forcing the shutdown of fossil fuel plants. “As with the Great Oz, pulling back the curtain exposes the final rule for what it really is,” Christie said.
If Trump wins but President Joe Biden’s current FERC chair, Willie Phillips, remains on the commission until his term expires in June 2026, a Trump-appointed chair likely wouldn’t have enough support for an overhaul of the transmission rule, said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “So in that case, I don’t think there would be any drastic changes.”
If Trump wins
Still, the fact remains that if Trump returns to the White House he would gain the authority to name a FERC chair from among the commissioners. That person would set the policy agenda for FERC. And it could upend initiatives that in Trump’s view hew too closely to Biden’s goals of expanding the power grid to bring on advanced technology and wind and solar power that can replace planet-warming fossil fuels.
There are ongoing efforts at FERC headquarters to address grid reliability issues springing from rising electricity demand and the need to bring more zero-carbon power onto the grid. There are concerns about the grid’s vulnerability to extreme weather and rising energy and technology costs.
A prime example of a policy Democrats support but Republicans oppose is a potential new order requiring increased long-distance transmission connecting regions of the country. In recent years, catastrophic storms that triggered energy emergencies in Texas and Eastern power markets shined a light on inadequate long-distance transmission capacity. In the case of the Texas grid, it’s lack of access to power from outside the state.
Some Republicans and monopoly utilities with an interest in protecting existing markets have opposed proposals that would vastly increase the ability to move power across states and from west to east more easily.
Then there’s what happens under Order 1920, the most far-reaching federal effort to spur development of regional grids since FERC created regional transmission organizations 25 years ago.
Utilities are supposed to submit compliance filings on most of Order 1920 requirements by next summer. Utilities will have finished initial plans before Trump could gain a Republican majority at FERC.
The next Democrat-filled seat becomes vacant when the current chair, Phillips, is scheduled to retire. But a GOP-led commission could happen sooner if Phillips decided to resign from the commission, as President Barack Obama’s appointee Norman Bay did after Trump took office in 2017.
Opinions vary on how Order 1920 might become vulnerable under a GOP-majority commission backed by a Republican-led Congress.
Rob Gramlich, president of Grid Strategies and a former FERC economic adviser, said it’s hard to say what a new Republican commissioner might do.
“Many Republicans in Congress are concerned about having sufficient infrastructure to meet load growth,” Gramlich said. “So it’s possible a future Republican commissioner would vote similarly to FERC Republican commissioners over the last few decades who were very pro-infrastructure, pro-market and pro-innovation.”
Order 1920 set timetables for RTOs and system operators to begin looking at future scenarios up to 20 years ahead. Unless a final court decision directs FERC to hold up on the order, transmission operators would presumably have to prepare and file plans for complying with the order.
“It will be up to FERC to judge the compliance plans,” said Michelle Solomon, senior policy analyst with Energy Innovation, a think tank supporting the clean energy transition. A Trump majority at FERC might not insist the plans are as strong as possible, she said.
A GOP-led commission could pull back the rule for a rehearing, said Scherman, the former FERC general counsel. But quick and dramatic changes wouldn’t be easy.
“It seems clear that surgical changes could be done on rehearing,” he said. “But if they cross the line into significant material, I think the court would require a new notice and comment rulemaking, and we don’t know the specific contours of that.”
Targeting FERC
Trump’s political allies would go further that an attack on Order 1920.
In the radically conservative policy blueprint Project 2025, out of the Heritage Foundation, commissioners would be barred somehow from favoring carbon-free power or justifying costs for “advancing vague ‘societal benefits’ such as climate change.” It called for an end to long-range grid planning, leaving it to states. And in directing FERC to focus exclusively on electric reliability, Project 2025 would remake the way markets price electricity today, revaluing coal, gas and nuclear power so they compete with cheaper sources of wind and solar power.
Trump has distanced himself from Project 2025, which is sweeping in scope. But the policy blueprint falls in line with the former president’s agenda and was authored by political allies of the previous Trump administration.
The author of the report’s FERC section, Bernard McNamee, was a Trump appointee to the commission.
“The fact that the commission is set up in a bipartisan way, with people from both parties, certainly reduces the opportunity for one administration to have a dominant impact,” said former FERC Chair Richard Glick, a Democrat who lost his commission seat after angering Sen. Joe Manchin (I-W.Va.). But he added the 2025 project “should at least be taken seriously since McNamee was appointed twice by Trump,”
Pat Wood III, a former Republican FERC chair, said he believed parts of the Project 2025 are ill-advised. But he said he thinks new commissioners named by Trump would come together to best serve the country’s interests. He is not convinced that a new Republican majority at FERC would be especially political or would follow McNamee’s ideas.
Former FERC Commissioner Nora Brownell, a Republican who served with Wood, condemned the Heritage report as blind to the realities of the electric grid’s transition from fossil to clean energy power and the dire consequences coming from global warming.
“I’m going to be harsh here, [but] it is more like a fever dream of a ‘Back to the Future’ where 1950 was kind of the perfect moment,” she said. “It completely ignores the role that FERC can play in advancing grid technologies, which by the way are probably the biggest opportunity to deliver more savings to customers.”
Harvard’s Peskoe called it “an anti-innovation agenda by people who view the electricity sector of the country as a static sector.”
“It shows no vision, no progress. It shows no vision for the country,” he said.
Cato Institute energy economist Travis Fisher said conservatives want a reset on whether FERC has been granted authority from Congress to support a mandated transition from fossil fuels to clean energy.
“People who think that is essential have a duty to convince a majority of Americans that it’s worth doing,” Travis said, referring to a shift to zero-carbon technology. Instead of having government agencies ordering change, “we have to have the hard conversation about whether that policy is wise or not.”
Travis previously worked at the Department of Energy as a senior adviser in the Trump administration. After he led a DOE analysis of what was driving coal plant closures, Energy Secretary Rick Perry urged FERC to boost financially struggling coal and nuclear units.
If Harris wins
As president, Harris would control nominations to maintain a Democratic majority at FERC. Rules mandating the use of technologies that expand the interstate grid’s capacity or that order more transmission lines built between major U.S. grid regions could follow.
The greater threat to FERC’s current plans is just outside the Capitol grounds, many experts expect.
“The Supreme Court and Trump judicial appointees pose a lot more risk to Democratic goals for FERC than what a majority of potential Trump appointees could do with the agenda FERC has already laid out,” said Alison Silverstein, a Texas-based grid analyst and former FERC and DOE adviser.
The most serious potential judicial threat to Order 1920, Silverstein and other analysts agree, is posed by the Supreme Court’s recent decisions that reverse the Chevron doctrine of deference to agency interpretations of ambiguous statutory language. Opponents of FERC’s transmission rule are expected to base their arguments on the court’s decisions in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce in June.
“Loper Bright takes one important tool away from FERC as it prepares to defend Order No. 1920,” Anand Viswanathan, special counsel at the firm Jenner & Block, told E&E News in an email.
FERC Commissioner Christie followed those decisions by predicting doom for Order 1920 and a reversal of a 2014 decision by the Court of Appeals for the District of Columbia, South Carolina Public Service Authority v. FERC. That decision upheld FERC’s earlier actions to set planning requirements for interstate grid operators, which cited the Chevron doctrine.
Christie said with the Loper Bright decision, “the most important legal lifeline that Order 1920 needed was pulled away today, and the final rule’s chances of surviving court challenges just shrank to slim to none.”
Phillips replied in a statement, “[Our] authority to regulate regional transmission planning and cost allocation is essential to the Commission’s ability to ensure that customers have access to reliable, affordable supplies of electricity—our most fundamental statutory responsibility. Nothing in the Supreme Court’s Loper Bright decision overturning the Chevron doctrine calls that conclusion into question.”
