[House Report 113-86]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-86
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RESOLVING ENVIRONMENTAL AND GRID RELIABILITY CONFLICTS ACT OF 2013
_______
May 20, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 271]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 271) to clarify that compliance with an
emergency order under section 202(c) of the Federal Power Act
may not be considered a violation of any Federal, State, or
local environmental law or regulation, and for other purposes,
having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
Statement of General Performance Goals and Objectives............ 8
New Budget Authority, Entitlement Authority, and Tax Expenditures 9
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 9
Committee Cost Estimate.......................................... 9
Congressional Budget Office Estimate............................. 9
Federal Mandates Statement....................................... 10
Duplication of Federal Programs.................................. 11
Disclosure of Directed Rule Makings.............................. 11
Advisory Committee Statement..................................... 11
Applicability to Legislative Branch.............................. 11
Section-by-Section Analysis of the Legislation................... 11
Changes in Existing Law Made by the Bill, as Reported............ 12
Purpose and Summary
H.R. 271, the ``Resolving Environmental and Grid
Reliability Conflicts Act of 2013,'' was introduced by
Representatives Pete Olson, Mike Doyle, Gene Green, Adam
Kinzinger, and Lee Terry on January 15, 2013. The legislation
provides that actions necessary to comply with an emergency
order under section 202(c) of the Federal Power Act may not be
considered a violation of any conflicting Federal, State, or
local environmental law or regulation.
Background and Need for Legislation
Reliability of the electric grid
Electricity is generated from a variety of different energy
sources, moved to substations by large, high-voltage
transmission lines, and then ultimately delivered to consumers
over smaller, low-voltage distribution lines. Thousands of
miles of transmission lines and distribution lines function
together to form the ``electric grid'' a vast network of
interconnected transmission lines, local distribution systems,
generation facilities, and related communications systems, with
more than 800,000 megawatts of installed capacity, and serving
more than 300 million people.
Unlike other commodities, electricity currently cannot be
economically stored; thus, it must be generated as it is
needed, and supply must be kept in near constant balance with
demand. This means generation and transmission operations must
be monitored and controlled at all times to ensure a consistent
flow of electricity--a complex process requiring the close
coordination and cooperation of electricity industry
participants and regulators. Deviations from this constant
balancing of supply and demand can impair the ``reliability''
of the electric grid, resulting in a failure of electric power
being delivered to customers.\1\
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\1\Reliability can be understood as the ``ability to meet the
electricity needs of end-use customers, even when unexpected equipment
failures or other factors reduce the amount of available electricity.''
North American Electric Reliability Corporation (NERC): ``Reliability
Terminology,'' available at: http://www.nerc.com/page.php?cid=1|15|122.
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As evidenced by recent reliability emergencies--the August
2003 Northeast Blackout, the February 2011 Southwest Blackout,
and the September 2011 power outage in parts of Southern
California, Arizona, and Mexico--impaired reliability can have
significant economic, national security, public health, and
safety consequences. Disruptions to adequate energy supply can
cut off power to homes, hospitals, schools, offices, and farms,
and commerce can come to a standstill, as airports, factories,
and businesses sit idle. Moreover, defense facilities and
military installations rely predominantly on power from the
commercial electric grid, and thus, a loss of power supply can
have serious national defense implications.
Reliability-related emergencies are not limited to bad
weather, natural disasters, or terrorist attacks. For instance,
a dramatic shift in the Nation's electric generation portfolio
is underway. Although proper planning and coordination can
mitigate most reliability concerns, this shift nevertheless
could trigger reliability-related emergencies.
The Department of Energy's emergency authority
The Secretary of Energy and the Department of Energy's
(DOE) Office of Electricity Delivery and Energy Reliability
play an important role in ensuring the reliability of grid
infrastructure, particularly in emergency situations.\2\ One
tool available to DOE to address reliability-related
emergencies is section 202(c) of the Federal Power Act (FPA)
(16 U.S.C. 824a(c)), which provides DOE authority to require
the temporary interconnection of facilities and to direct power
plants to continue operating in order to maintain the
reliability of the electric grid during an emergency.
Specifically, section 202(c) provides:
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\2\Reliability-related concerns, particularly the August 2003
Northeast Blackout, led Congress to establish a greater Federal role in
ensuring the reliability of the electric grid in the Energy Policy Act
of 2005. Section 215 of the Federal Power Act charged the Federal
Energy Regulatory Commission with oversight of the reliability of the
nation's bulk power system and enforcement of reliability standards
developed by NERC.
During the continuance of any war in which the United
States is engaged, or whenever the Commission
determines that an emergency exists by reason of a
sudden increase in the demand for electric energy, or a
shortage of electric energy or of facilities for the
generation or transmission of electric energy, or of
fuel or water for generating facilities, or other
causes, the Commission shall have authority, either
upon its own motion or upon complaint, with or without
notice, hearing, or report, to require by order such
temporary connections of facilities and such
generation, delivery, interchange, or transmission of
electric energy as in its judgment will best meet the
emergency and serve the public interest. If the parties
affected by such order fail to agree upon the terms of
any arrangement between them in carrying out such
order, the Commission, after hearing held either before
or after such order takes effect, may prescribe by
supplemental order such terms as it finds to be just
and reasonable, including the compensation or
reimbursement which should be paid to or by any such
party.\3\
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\3\16 U.S.C. 824a(c) (2006).
DOE has used its section 202(c) authority only sparingly.
In fact, the authority has only been used on six occasions:
On December 14, 2000, a section 202(c) emergency
order was issued in response to the California energy crisis.
On August 16, 2002, due to concerns regarding the
availability of electricity on Long Island in the State of New
York, a section 202(c) order was issued directing Cross-Sound
Cable Company to operate the Cross-Sound Cable from Connecticut
to Long Island and related facilities.
On August 14, 2003, in response to the August 2003
Northeast Blackout, a section 202(c) order was issued directing
the New York Independent System Operator and ISO New England to
require Cross-Sound Cable Company to operate the Cross-Sound
Cable and related facilities.
On September 28, 2005, in response to Hurricane
Rita and Hurricane Katrina, a section 202(c) emergency order
was issued authorizing CenterPoint Energy to temporarily
connect electricity lines to restore power to Entergy Gulf
States, Inc., as well as electric cooperatives and municipal
customers within the State of Texas.\4\
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\4\DOE's Use of Federal Power Act Emergency Authority, available
at: http://energy.gov/oe/does-use-federal-power-act-emergency-
authority.
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On December 20, 2005, in response to a request by
the District of Columbia Public Service Commission, a section
202(c) emergency order was issued requiring operation of Mirant
Corporation's Potomac River Generating Station to ensure
compliance with reliability standards for the Washington, D.C.
area.
On September 14, 2008, in response to Hurricane
Ike, a section 202(c) emergency order was issued authorizing
CenterPoint Energy to temporarily connect electricity lines to
restore power to Entergy Gulf States, Inc., as well as electric
cooperatives and municipal customers within the State of Texas.
Of the six instances, only two were generation-related,
while the remaining four directed the interconnection of
certain transmission lines and related facilities.
Potential conflicts with environmental laws and regulations
A party subject to a section 202(c) emergency order may be
unable to comply with environmental requirements that impose
limitations on the way in which the party can operate its
generation facilities or other infrastructure. For example, a
generator operating in compliance with a section 202(c) order
may be forced to exceed an air pollution limit in a Clean Air
Act (CAA) permit, violating the CAA. Under current law, the
Environmental Protection Agency (EPA) could enforce CAA
requirements against the generator through administrative,
civil, or, in some cases, criminal actions. Similarly, a State
may enforce State and Federal environmental regulations through
State or Federal courts, and most environmental laws provide
for civil enforcement actions by citizens in the absence of
Federal or State enforcement action.
As explained below, there are two recent cases that
demonstrate the potential problems that may arise when an
entity is operating pursuant to a section 202(c) emergency
order to maintain reliability and such operation conflicts with
applicable environmental requirements.
Potrero Power Plant (2001)
From December 14, 2000, until February 7, 2001, DOE
exercised its authority under section 202(c) of the FPA to
compel operation of generation facilities during the California
energy crisis, ordering certain generators to make energy
available to the California Independent System Operator
(CAISO). On April 6, 2001, EPA issued an administrative order
on consent to Mirant Corporation's (Mirant) Potrero Power Plant
after CAISO informed Mirant that the plant would be directed to
operate over its permit limits during 2001. The Potrero Power
Plant, located in the San Francisco area, had a relatively low
annual operating limit of 877 hours. In order to ensure that
the plant could operate as needed to preserve reliability,
Mirant obtained approval from local and Federal regulators--the
Bay Area Air Quality Management District and EPA--to operate
for more than 877 hours.\5\ Despite these approvals, the City
of San Francisco and certain environmental advocates brought a
citizen enforcement action against Mirant for exceeding the
operating limit.\6\ The alleged violations occurred when the
plant continued to operate for reliability purposes after the
expiration of the section 202(c) order.
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\5\See Compliance and Mitigation Agreement between Mirant Potrero,
LLC and the Bay Area Air Quality Management District (Mar. 29, 2001);
Mirant Potrero LLC, R9-2001-04, Administrative Order on Consent (Apr.
6, 2001), available at http://www.epa.gov/region9/energy/generators/
r9200104mirant.pdf.
\6\See Rachel Gordon, Potrero Hill power plant operator sued/S.F.
groups seek pollution controls, San Francisco Chronicle (June 19,
2001), available at http://articles.sfgate.com/2001-06-19/news/
17605126_1_mirant-corporation-pollution-clean-air-act; First Amended
Complaint for Injunctive and Other Relief and Demand for Jury Trial,
City & County of San Francisco v. Mirant Potrero, LLC, No. C-01-2356
PJH (N.D. Cal. Aug. 20, 2001); First Amended Complaint, Bayview Hunters
Point Community Advocates v. Mirant Potrero, LLC, No. C-01-02348-PJH
(N.D. Cal. Aug. 20, 2001).
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Potomac River Generating Station
On August 22, 2005, Mirant announced that it would shut
down its Potomac River Generating Station (Potomac River
Plant), which supplied power to the District of Columbia
through several transmission lines. The stated reason for the
shutdown was to comply with orders of the Virginia Department
of Environmental Quality (Virginia DEQ) in response to modeled,
localized NAAQS exceedances. Two days later, on August 24,
2005, Mirant shut down the plant. The District of Columbia
Public Service Commission (DC PSC) responded by filing
petitions with DOE pursuant to section 202(c) of the FPA and
with FERC under sections 207 and 309 of the FPA requesting that
Mirant be ordered to operate the Potomac River Plant for
reliability purposes. As described in testimony provided by the
Honorable Betty Ann Kane, Chairman of the DC PSC, the continued
operation of the Potomac River Plant was ``critical to ensuring
that the downtown sectors of the District, including the White
House, the Capitol, and other important Federal, as well as
District government agencies, had adequate access to
electricity supplies.''\7\
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\7\See Testimony of the Honorable Betty Ann Kane, Chairman of the
DC PSC, before the Subcommittee on Energy and Power (May 9, 2012).
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On December 20, 2005, pursuant to section 202(c), DOE
ordered Mirant to resume operating the Potomac River Plant in
order to maintain the electric supply to Washington, D.C. and
avoid a potential reliability emergency.\8\ DOE extended the
original order on subsequent occasions, determining that
emergency conditions would persist until the necessary
transmission upgrades were completed, a process that took
nearly 16 months after the emergency certificate of convenience
and necessity was issued.\9\
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\8\See DC Pub. Serv. Comm'n, DOE Order No. 202-05-3 (Dec. 20, 2005)
(the ``2005 DOE Order''), available at http://www.gc.doe.gov/oe/
downloads/department-energy-order-no-202-05-3.
\9\See Testimony of the Honorable Betty Ann Kane, Chairman of the
DC PSC, before the Subcommittee on Energy and Power (May 9, 2012).
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On February 23, 2007, the Potomac River Plant exceeded its
3-hour NAAQS limit while operating under a section 202(c)
order. Subsequently, in 2007, the Virginia DEQ issued a Notice
of Violation (NOV) and later fined Mirant for NAAQS
exceedances.\10\ The NOV was issued by the Virginia DEQ
notwithstanding the fact that EPA had previously issued an
Administrative Compliance Order by Consent, which set forth
certain operating standards ``taking into account the
seriousness of the modeled NAAQS exceedances and the concerns
of DOE regarding electric reliability in the Central D.C.
area,'' and required Mirant to operate the Potomac River Plant
``as specified by PJM and in accordance with the [2005] DOE
Order.''\11\
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\10\See Letter from Jeffery A. Steers, Regional Director,
Commonwealth of Virginia, Dep't of Environmental Quality to Michael
Stumpf, Group Leader--Plant Operations, Mirant Potomac River Generating
Station, Notice of Violation Re: Mirant Potomac River Generating
Station, Facility Registration No. 70228 (Mar. 23, 2007).
\11\See Mirant Potomac River LLC, Administrative Compliance Order
by Consent at 4, Docket No. CAA-03-2006-0163DA (June 1, 2006).
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Need for legislation
Under current law, if a generating unit is ordered by DOE
to operate pursuant to section 202(c), such operation could
conflict with environmental requirements, and the owner of the
unit would have to choose between violating an order from DOE
and violating the environmental requirement. If the owner of
the generating unit chooses to comply with the section 202(c)
order to address the DOE-identified reliability emergency, the
owner could be fined or sued for non-compliance with an
environmental regulation, even though the party would not have
violated the regulation but for its compliance with the DOE
order. Left unresolved, therefore, the current statutory
structure creates the potential for conflicting legal mandates
that could threaten the reliability of the grid. Indeed,
testimony provided before FERC at a November 2011 reliability
technical conference summarized, as follows, the reliability-
related consequences potentially resulting from this conflict
and the need for greater clarity in the law:
In an emergency, electricity generators are unfairly
forced to weigh the risks and costs of violating
environmental permits against the risks and costs of
non-compliance with a DOE emergency order to run,
creating uncertainty at a time when stability is most
needed. It is imperative that there be clear authority
within the federal government to direct actions that
can balance an emergency reliability need with binding
environmental regulations.\12\
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\12\See Testimony of Debra Raggio, Vice President, Government and
Regulatory Affairs, and Assistant General Counsel, GenOn Energy, Inc.,
FERC Reliability Technical Conference, Docket No. AD12-1-000 (Nov. 29,
2011).
Currently, section 202(c) does not authorize DOE to
override conflicting environmental laws and regulations. There
is no express statutory language in the FPA, the CAA, or any
other law providing that section 202(c) ``trumps''
environmental requirements. Notably, in challenging the
petition filed by the DC PSC that led to the 2005 DOE Order
requiring the continued operation of the Potomac River Plant,
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the Virginia DEQ explained before DOE that:
Congress has not given the [FPA] primacy over the
[CAA]. Nowhere in the [FPA]--Sec. 202(c) or elsewhere--
is there language providing that reliability concerns
take precedence over federal and state environmental
laws. Further, Sec. 201(a) of the [FPA] expressly
preserves state jurisdiction over electric generation.
The [FPA] also does not preempt Virginia law or the
Director's authority pursuant to Virginia law, because
obligations arising under the federally approved [SIP]
are a matter of both state and federal law.\13\
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\13\Letter from Commonwealth of Virginia Dep't of Environmental
Quality to Kevin Kolevar, Director, Office of Electricity Delivery and
Energy Reliability, U.S. Dept. of Energy at 2, Docket No. EO-05-01
(Nov. 23, 2005), available at http://www.gc.doe.gov/oe/downloads/
letter-clarifying-position-director-virginia-department-environmental-
quality-regarding.
Based, in part, on its assertion that section 202(c) does not
trump environmental laws, the Virginia DEQ subsequently issued
a NOV and fined Mirant for NAAQS exceedances resulting from
Mirant's compliance with the section 202(c) order. As this
example illustrates, the law is not settled with respect to
whether section 202(c) or environmental laws take priority when
in conflict with each other.
To ensure that the tools needed to maintain the reliability
of the grid are available and effective despite potentially
conflicting environmental requirements, H.R. 271 amends section
202(c) of the FPA to clarify that when a party is under an
emergency directive to operate pursuant to section 202(c), it
will not be deemed in violation of environmental laws or
regulations or subject to civil or criminal liability, or
citizen enforcement actions, as a result of actions taken that
are necessary to comply with a DOE-issued emergency order. As
FERC Commissioner Philip Moeller testified before the
Subcommittee on Energy and Power, all four current FERC
Commissioners agree that ``generators of electricity should not
be put in a position of having to choose whether to violate
Section 202(c) of the Federal Power Act or whether to violate
the Clean Air Act when certain generating facilities are needed
for crucial electric reliability needs. The law should not
require citizens to violate the law.''\14\
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\14\See Testimony of the Honorable Philip Moeller, Commissioner,
Federal Energy Regulatory Commission, before the Subcommittee on Energy
and Power (May 9, 2012).
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Balancing environmental considerations
A legislative solution to the conflict described herein
should balance reliability considerations with environmental
interests. Such an approach is consistent with what DOE has
expressly sought to do in the past when utilizing its section
202(c) emergency authority. For example, in the 2005 DOE Order
requiring the continued operation of the Potomac River Plant,
DOE stated that ``[o]rdering action that may result in even
local exceedances of the NAAQS is not a step to be taken
lightly . . . .'' and ordered Mirant to ``operate in a manner
that provides reasonable electric reliability, but that also
minimizes any adverse environmental consequences from operation
of the Plant.''\15\ Accordingly, in issuing a section 202(c)
order that may result in a conflict with an environmental law,
H.R. 271 requires DOE, to the maximum extent practicable, to
ensure the order is consistent with all applicable
environmental laws and regulations and minimizes adverse
environmental impacts that may occur as a result of the
emergency directive. The Committee emphasizes that section
202(c) provides DOE authority to address serious emergency
threats to electricity reliability. The Committee does not
intend for this amendment to section 202(c) to allow for long-
term or indefinite noncompliance with environmental
requirements.
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\15\2005 DOE Order 8-9. See also id. at 5 (``In response to the
environmental concerns raised, this order seeks to minimize, to the
extent reasonable, any adverse environmental impacts. Should EPA issue
a compliance order directed to operation of the Plant, DOE will
consider whether and how this order should [be] conformed to such
order.'').
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Previous consideration of the legislation
Identical legislation--H.R. 4273--was introduced in the
House of Representatives during the 112th Congress. The
Subcommittee on Energy and Power held a legislative hearing on
H.R. 4273, and the Subcommittee met in open markup session and
favorably reported, by voice vote, H.R. 4273 to the full
Committee. The full Committee ordered H.R. 4273 favorably
reported, by voice vote, to the House of Representatives. On
August 1, 2012, under suspension of the rules, H.R. 4273 was
agreed to by voice vote by the House of Representatives.
Supporters of the legislation
Supporters of the legislation include the American Public
Power Association, the Edison Electric Institute, the Electric
Power Supply Association, the Electric Reliability Coordinating
Council, the Industrial Energy Consumers of America, the Large
Public Power Council, the Midwest Power Coalition, the National
Association of Regulatory Utility Commissioners, the U.S.
Chamber of Commerce, and West Associates.
Hearings
The Committee on Energy and Commerce has not held hearings
on the legislation in the 113th Congress.
Committee Consideration
On May 15, 2013, the Committee on Energy and Commerce met
in open markup session. No amendments were offered during the
markup and the Committee ordered H.R. 271 favorably reported,
by unanimous consent, to the House of Representatives.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
H.R. 271 reported. A motion by Mr. Upton to order H.R. 271
reported to the House, without amendment, was agreed to by a
voice vote.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.
Statement of General Performance Goals and Objectives
H.R. 271 clarifies that compliance with an emergency order
under section 202(c) of the Federal Power Act may not be
considered a violation of any Federal, State, or local
environmental law or regulation.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
271, the ``Resolving Environmental and Grid Reliability
Conflicts Act of 2013,'' would result in no new or increased
budget authority, entitlement authority, or tax expenditures or
revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 271, the ``Resolving Environmental and Grid
Reliability Conflicts Act of 2013,'' contains no earmarks,
limited tax benefits, or limited tariff benefits.
Committee Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
May 17, 2013.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 271, the Resolving
Environmental and Grid Reliability Conflicts Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 271--Resolving Environmental and Grid Reliability Conflicts Act of
2013
CBO estimates that H.R. 271 would have no significant
impact on the federal budget. The bill would amend existing law
regarding actions taken by electric utilities when the
Department of Energy (DOE) determines that the electric power
system is experiencing emergency conditions. Under current law,
during a designated emergency, DOE can require firms to produce
or supply electricity to avoid or resolve blackouts or other
risks to the electric power system. If those actions violate
other regulatory requirements, such as air pollution limits,
the affected firms may be liable for penalties under those
laws. H.R. 271 would revise this framework by establishing new
procedures for ensuring compliance with environmental standards
during designated emergencies. The bill also would exempt firms
from certain civil and criminal liability if the actions taken
to comply with DOE's emergency orders violate environmental or
other regulatory standards.
Pay-as-you go procedures apply to this legislation because
it could affect revenues and direct spending. CBO estimates,
however, that the impact on the federal budget would be
insignificant over the 2013-2023 period. According to DOE, it
has issued emergency orders to electric utilities six times
since 1978, and none of those transactions resulted in the
payment of penalties. Based on that historical experience, CBO
estimates that revenues from such penalties would not be
significant over the next 10 years under current law; as a
result, CBO estimates that reducing firms' liability for such
penalties would not result in any significant loss of federal
revenues.
Similarly, CBO estimates that enacting H.R. 271 would have
no significant net effect on direct spending by the federal
power agencies (such as the Tennessee Valley Authority) that
could be liable for such penalties. Finally, we estimate that
implementing the bill would have no significant effect on
spending subject to appropriation.
The bill would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) by
preempting state and local environmental and liability laws.
Energy facilities would be exempt from complying with such laws
if those laws conflict with an emergency order issued by the
Federal Energy Regulatory Commission (FERC) to provide
temporary connections of public facilities for electrical
transmission.
While the preemption would limit the application of state
law, CBO estimates that it would impose no duty on state,
local, or tribal governments that would result in additional
spending. (As a result, the threshold established by UMRA for
costs of intergovernmental mandates would not be exceeded.)
The bill would impose a private-sector mandate to the
extent that it eliminates an existing right to seek
compensation for damages under environmental laws from
utilities operating in compliance with a federal emergency
order issued by DOE. The cost of the mandate would be the
forgone value of awards and settlements in such claims. Because
DOE has issued emergency orders infrequently, CBO expects that
claims would be uncommon in the future. Consequently, CBO
expects that the cost of the mandates would fall below the
annual threshold for private-sector mandates ($150 million in
2013, adjusted annually for inflation).
The CBO staff contacts for this estimate are Kathleen Gramp
(for federal costs), J'nell L. Blanco (for the impact on state
and local governments), and Amy Petz (for the impact on the
private sector). The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 271 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 271 does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1: Short title
Section 1 provides the short title of ``Resolving
Environmental and Grid Reliability Conflicts Act of 2013.''
Section 2: Amendments to the Federal Power Act
Section 2(a) amends section 202(c) of the Federal Power Act
(16 U.S.C. 824a(c)) to direct the Department of Energy (DOE),
in issuing an order pursuant to section 202(c) that may result
in a conflict with a requirement of any Federal, State, or
local environmental law or regulation, to ensure that the order
limits the generation, delivery, or transmission of electricity
to only those hours necessary to meet the emergency and serve
the public interest. DOE also must ensure the order, to the
maximum extent practicable, is consistent with any applicable
Federal, State, or local laws or regulations and minimizes any
adverse environmental impacts that may result from such order.
The Committee intends the term ``adverse environmental
impacts'' to include any adverse public health impacts
resulting from noncompliance with an environmental requirement
that may result from such order. The Committee expects that
DOE, to the extent practicable in light of the emergency, will
continue its practice of consulting with Federal, and where
appropriate, other governmental, environmental regulators prior
to the issuance of a section 202(c) order that may result in
any adverse environmental impacts or a conflict with any
Federal, State, or local environmental law or regulation.
Section 2(a) further amends section 202(c) to provide that
if a party takes an action that is necessary to comply with a
section 202(c) order and such action results in noncompliance
with any Federal, State, or local environmental law or
regulation, then such action shall not be considered a
violation of such environmental law. Nor would the action
subject the party to any requirement, civil or criminal
liability, or a citizen suit under such environmental law.
Thus, a party operating pursuant to a section 202(c) emergency
directive will not be considered in violation of an
environmental law or regulation if an action taken necessary to
comply with the order conflicts with such environmental law or
regulation. With respect to parties that may not be legally
required to comply with a section 202(c) order directed to such
party but that voluntarily choose to comply with such order,
this provision also would apply to any actions taken by such
parties that are necessary to comply with such order. In
section 2(a), the term ``environmental law or regulation'' is
not intended to be read broadly to include statutes such as the
Atomic Energy Act or the Occupational Health and Safety Act.
Section 2(a) further amends section 202(c) to require that
an order issued pursuant to section 202(c) that may result in a
conflict with an environmental law or regulation shall expire
not later than 90 days after issuance. DOE may renew or reissue
such an order for subsequent periods, not to exceed 90 days, as
DOE determines necessary to meet the emergency and serve the
public interest. In renewing or reissuing the order, DOE must
consult with the primary Federal agency with expertise in the
environmental interest protected by a potentially conflicting
environmental law. DOE must include in the renewed or reissued
order conditions determined by such primary Federal agency to
be necessary to minimize any adverse environmental impacts that
may result from such renewed or reissued order to the maximum
extent practicable. The Committee encourages such primary
Federal agency to submit such conditions to DOE in a timely
manner. The conditions formally submitted to DOE by such
primary Federal agency shall be made available to the public.
DOE has discretion to exclude such a condition from the renewed
or reissued order if it determines the condition would prevent
the order from adequately addressing the emergency. DOE must
provide an explanation of any determination to exclude a
condition and make it publicly available.
Section 2(b) amends section 202(d) of the Federal Power Act
(16 U.S.C. 824a(d)) to clarify that section 202(d) is
applicable to municipalities, and not solely to ``persons'' as
defined under section 3 of the Federal Power Act (16 U.S.C.
796).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
FEDERAL POWER ACT
* * * * * * *
PART II--REGULATION OF ELECTRIC UTILITY COMPANIES ENGAGED IN INTERSTATE
COMMERCE
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INTERCONNECTION AND COORDINATION OF FACILITIES; EMERGENCIES;
TRANSMISSION TO FOREIGN COUNTRIES
Sec. 202. (a) * * *
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(c)(1) During the continuance of any war in which the United
States is engaged, or whenever the Commission determines that
an emergency exists by reason of a sudden increase in the
demand for electric energy, or a shortage of electric energy or
of facilities for the generation or transmission of electric
energy, or of fuel or water for generating facilities, or other
causes, the Commission shall have authority, either upon its
own motion or upon complaint, with or without notice, hearing,
or report, to require by order such temporary connections of
facilities and such generation, delivery, interchange, or
transmission of electric energy as in its judgment will best
meet the emergency and serve the public interest. If the
parties affected by such order fail to agree upon the terms of
any arrangement between them in carrying out such order, the
Commission, after hearing held either before or after such
order takes effect, may prescribe by supplemental order such
terms as it finds to be just and reasonable, including the
compensation or reimbursement which should be paid to or by any
such party.
(2) With respect to an order issued under this subsection
that may result in a conflict with a requirement of any
Federal, State, or local environmental law or regulation, the
Commission shall ensure that such order requires generation,
delivery, interchange, or transmission of electric energy only
during hours necessary to meet the emergency and serve the
public interest, and, to the maximum extent practicable, is
consistent with any applicable Federal, State, or local
environmental law or regulation and minimizes any adverse
environmental impacts.
(3) To the extent any omission or action taken by a party,
that is necessary to comply with an order issued under this
subsection, including any omission or action taken to
voluntarily comply with such order, results in noncompliance
with, or causes such party to not comply with, any Federal,
State, or local environmental law or regulation, such omission
or action shall not be considered a violation of such
environmental law or regulation, or subject such party to any
requirement, civil or criminal liability, or a citizen suit
under such environmental law or regulation.
(4)(A) An order issued under this subsection that may result
in a conflict with a requirement of any Federal, State, or
local environmental law or regulation shall expire not later
than 90 days after it is issued. The Commission may renew or
reissue such order pursuant to paragraphs (1) and (2) for
subsequent periods, not to exceed 90 days for each period, as
the Commission determines necessary to meet the emergency and
serve the public interest.
(B) In renewing or reissuing an order under subparagraph (A),
the Commission shall consult with the primary Federal agency
with expertise in the environmental interest protected by such
law or regulation, and shall include in any such renewed or
reissued order such conditions as such Federal agency
determines necessary to minimize any adverse environmental
impacts to the maximum extent practicable. The conditions, if
any, submitted by such Federal agency shall be made available
to the public. The Commission may exclude such a condition from
the renewed or reissued order if it determines that such
condition would prevent the order from adequately addressing
the emergency necessitating such order and provides in the
order, or otherwise makes publicly available, an explanation of
such determination.
(d) During the continuance of any emergency requiring
immediate action, any person or municipality engaged in the
transmission or sale of electric energy and not otherwise
subject to the jurisdiction of the Commission may make such
temporary connections with any public utility subject to the
jurisdiction of the Commission or may construct such temporary
facilities for the transmission of electric energy in
interstate commerce as may be necessary or appropriate to meet
such emergency, and shall not become subject to the
jurisdiction of the Commission by reason of such temporary
connection or temporary construction: Provided, That such
temporary connection shall be discontinued or such temporary
construction removed or otherwise disposed of upon the
termination of such emergency: Provided further, That upon
approval of the Commission permanent connections for emergency
use only may be made hereunder.
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