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This is the first of a two-part article regarding the future of the Clean Power Plan, which the Environmental Protection Agency issued in October 2015. The original due date for state plan submittals was September 6, 2016, but that deadline has been put on hold. Less than three weeks after the D.C. Circuit, holding that the coalition of states challenging the plan “ha[d] not satisfied the stringent requirements for a stay pending court review,” denied motions to stay the plan until its legality could be decided, five justices of the Supreme Court disagreed. In a decision the New York Times reports was “unprecedented” for a regulation awaiting review in a lower federal court, the Court stayed enforcement of the Clean Power Plan until judicial review, including any review by the Supreme Court, is complete. With the D.C. Circuit not scheduled to hear argument until September 2016, the court’s hearing it en banc (with the potential for multiple opinions and more time needed to issue a decision), and the likelihood of a Supreme Court challenge if the plan is affirmed, the stay will likely continue into 2018 at the least. Meanwhile, with the election of Donald J. Trump, the states and all three branches of the federal government will be re-examining the Clean Power Plan going forward—a subject that will be taken up in Part Two, which will be published later this year.
The regulation of transmission is changing due to the need to facilitate grid access for remote generation, which is often renewable power that can be developed best in areas far away from load centers. Separately, but not always independently of this need, regulatory authorities have wanted to open up development possibilities for transmission projects to entities other than incumbent public utilities. On July 21, 2011, the Federal Energy Regulatory Commission issued Order No. 1000, a landmark order adopting reforms to its electric transmission planning and cost allocation requirements for public utility transmission providers subject to FERC authority. The fundamental purpose of the new rule is to make it easier for remote generation facilities to access the grid and at the same time facilitate the development of transmission projects. Texas, however, has developed its own separate transmission policies applicable to its intrastate grid, ERCOT. The purpose of this article is to explore what effect FERC Order No. 1000 has had in opening up transmission development to competition and compare that impact to the Texas experience.