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Bench Report: Top Ten Legal Decisions of 2010

2010 Law & Lawyers Report

Fortnightly Magazine - November 2010

100,000 TPY, even if they don’t exceed the permitting thresholds for any other pollutant.

These two steps in EPA’s Tailoring rule follow directly on the heels of a pair of recent legal actions:

1. The High Court’s ruling of April 2, 2007, in  Massachusetts v. EPA , that GHGs, including carbon dioxide (CO2), are air pollutants covered by the  Clean Air Act ; and

2. The EPA’s “endangerment finding” of Dec. 7, 2009, finding threats to public health from GHG emissions from motor vehicles, and from current and projected atmospheric concentrations of six key GHGs—CO 2, methane (CH 4), nitrous oxide (N 2O), hydrofluorocarbons (HFC s), perfluorocarbons (PFC s), and sulfur hexafluoride (SF 6).

As EPA explains, some of these six GHGs exhibit a higher global warming potential than others. To make comparisons more meaningful, the EPA translates emissions of the other GHGs in a CO 2e metric. (Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, No. EPQ-HQ-OAR-2009-0517, issued May 13, 2010, at 75 Fed. Reg. 31,514, June 3, 2010.)


10. SPP’s ‘Highway/Byway’ Plan

Will FERC follow suit for MISO, PJM?

In a victory for green power advocates, the Southwest Power Pool won approval from FERC to institute a “highway/byway” method of allocating the ever-increasing costs of new transmission line construction across the entire region.

FERC touted the plan as “an important step” in reducing congestion, integrating new resources (such as wind), and accommodating new loads.

SPP’s plan spreads costs according to line capacity: a) 100 percent region-wide sharing for lines 300 kV or larger; b) one-third sharing and two-thirds zonal cost allocation for lines from 100 to 300 kV; and c) 100 percent zonal cost allocation for lines smaller than 100 kV.  (Southwest Power Pool, Inc. Docket ER10-1069, June 17, 2010, 131 FERC ¶61,252.)

But the real question remains whether FERC will stick to its guns. A similar proposal for the Midwest region is now pending at the commission, whereby MISO has proposed region-wide cost sharing for so-called “multi-value projects” that would help support government-sponsored energy policy mandates, such as renewable portfolio standards, or even a high-voltage regional or national green grid superhighway.  (See, FERC Docket ER10-1791, filed July 15, 2010.)

And FERC’s nerve will surely be tested when it finally decides how to answer Judge Posner and the 7th Circuit court of appeals, which struck down regional cost-sharing last year for a handful of big 500-kV lines proposed in PJM. That remand case remains pending at FERC  (Docket EL05-121)  and poses some very difficult questions, as we reported in a recent Commission Watch column  (see “ Every Last Penny ,” August 2010) .