Law360, New York (January 23, 2017, 6:13 PM EST) — The House of Representatives on Monday pushed through a series of changes to the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission, in bills meant to change how courts treat FERC decisions and give more flexibility to new nuclear plants.
The two bills, passed by a voice vote, are meant to help consumers in the existing power industry and to help the development of new nuclear reactor technologies. The Fair Rates Act would expand the reviewability of FERC rate change decisions and the Advanced Nuclear Technology Development Act of 2017 would direct the U.S. Department and of Energy and the NRC to come up with a plan to allow for regulatory approvals of more advanced technology in nuclear reactors.
Rep. Joe Kennedy, D-Mass., the prime sponsor of the Fair Rates Act, said that the legislation would avoid the situation that power consumers in the Northeast faced. Following a rate auction, FERC deadlocked on approving the results, and they went into place automatically but consumers could not challenge them without a final FERC decision.
“With no official decision from the agency, there was no decision to appeal, leaving my constituents completely voiceless,” Kennedy said.
The bill would prevent situations in which consumers are forced to pay higher rates without the opportunity to appeal the decision either through the agency or through the courts, Kennedy said.
“Although this situation may sound completely isolated to New England, there’s not a corner of this country that’s immune from the unpredictability of the American energy market and the resulting burden they are forced to bear as a result,” Kennedy said.
Kennedy’s bill alters Section 205 of the Federal Power Act, designating that if a rate approval becomes final through action of law, it should be treated as a final agency action for purposes of agency and court appeals.
The court case that spurred the passage of the law came from Public Citizen and the state of Connecticut, which argued to overturn the approval of regional grid operator ISO New England Inc.’s 2014 auction — through which power generators offered their resource capacity for future power needs — by default.
However, in October, the D.C. Circuit ruled that it cannot review the approval of the auction without a final decision by the agency; the 2-2 deadlock kept the state and public consumers out of the courtroom.
Rep. Buddy Carter, R-Ga., said that one of the other bills the House passed on Monday, the Advanced Nuclear Technology Development Act of 2017, would help bring more advanced nuclear reactor designs to market more quickly. The language mandates that the Energy Department and the NRC enter into a memorandum of agreement to “knock down those walls to innovation and provide an opportunity to develop advanced nuclear reactor designs.”
The bill specifically includes advances on existing light-water reactor technologies that are intended to be more efficient and generate less waste as well as nuclear fusion reactors — which have not yet been built on an economically feasible scale. According to press reports, research institutions in both the United States and abroad have continued work on scaling up the power and sustainability of such reactors.
The bill would require a uniform, predictable plan for approval of more advanced reactors, which is meant to be based on mathematical models of their behavior.
Rep. Diane Degette, D-Colo., said that the changes to the NRC would be “a commonsense way for the federal government to safely advance the goals of the advanced nuclear power industry” and pave the way for lowering America’s overall carbon emissions.