Benjamin Rolsma
Section 202(c) of the Federal Power Act grants the Secretary of Energy a sweeping authority to exempt electric generation and transmission facilities from any federal, state, or local environmental laws. When Congress first adopted § 202(c) in 1935, it designed the provision as an emergency power that federal regulators could use to force fractious utilities to work together to preserve electricity reliability in times of war or natural disaster. But in the last decade things changed.
This Article, drawing on a novel catalog of all § 202(c) emergencies from the provision’s nearly ninety-year history, is the first to comprehensively describe § 202(c). The Article shows that new pressures on the reliability of the American electrical grid, along with an obscure 2015 amendment to the Federal Power Act, transformed § 202(c). No longer is it used to nudge reluctant utilities into action. Instead, starting in the first Trump administration and continuing in the Biden administration, grid operators facing impending blackouts used § 202(c) orders to allow them to run power plants in excess of Clean Air and Clean Water Act pollution limits. And § 202(c) is set to become even more important. Both the Trump and Biden administrations leaned on the provision in proposed policies for the electrical grid—the former to hinder the energy transition and the latter to push it along. This Article tells § 202(c)’s history, describes its transformation, and critically examines some methods for supervising the Department of Energy’s use of § 202(c).