HR-3843-119
Referred to the House Committee on Energy and Commerce.
Sponsored by Julie Fedorchak (R-ND)
What it does
This bill would amend the Federal Power Act to prohibit owners and operators of dispatchable power plants (25 megawatts or larger, not powered by intermittent renewables) from retiring or converting those plants in regions that the North American Electric Reliability Corporation (NERC) has rated as at "elevated" or "high" risk of electricity supply shortfalls. Owners could petition the Federal Energy Regulatory Commission (FERC) for an exemption based on financial losses, safety concerns, or a showing that retirement would not harm grid reliability. If FERC finds a financially struggling plant is critical to reliability, it would refer the case to the Department of Energy, which could issue grants or loans — drawn from existing Infrastructure Investment and Jobs Act or Inflation Reduction Act funds — to keep the plant operating. The bill would also bar FERC from considering a plant's greenhouse gas emissions when deciding exemption petitions, and would shield compliant plant operators from penalties under federal, state, or local environmental laws.
Who benefits
Owners and operators of coal, natural gas, oil, and nuclear power plants in at-risk regions who would gain financial support and legal protection against forced closure. Electricity consumers in high-risk regions who may benefit from reduced risk of blackouts or supply shortfalls. Grid operators (RTOs/ISOs) seeking to maintain reserve capacity. Workers at plants that would otherwise be retired. Communities economically dependent on baseload power plant employment and tax revenue. Nuclear plant operators specifically, who could receive uprating and lifespan-extension loans.
Who is hurt
Renewable energy developers who would face a slower transition as fossil fuel and nuclear plants are kept online, reducing market demand for replacement capacity. Environmental and public health advocates who argue continued operation of fossil fuel plants causes ongoing air and water pollution. State and local governments whose environmental regulations could be preempted or rendered unenforceable against covered plants. Taxpayers who would bear the cost of DOE grants and loans if existing unobligated funds are redirected. Electricity ratepayers who may indirectly bear costs if subsidized plants are less efficient than market alternatives. Competing power generators who are not eligible for the same financial support.
Supporters argue
Supporters argue that NERC's own reliability assessments have flagged an accelerating risk of electricity supply shortfalls across major U.S. grid regions, driven in part by the rapid retirement of dispatchable baseload plants before sufficient replacement capacity is online. They contend that grid reliability is a national security issue — blackouts impose severe economic and public health costs — and that FERC currently lacks clear statutory authority to prevent premature retirements. The bill's exemption process, they argue, preserves market flexibility while ensuring that no plant critical to reliability is forced offline, and the DOE loan and grant mechanism provides a targeted financial backstop rather than a blanket subsidy.
Opponents argue
Opponents argue that the bill would effectively override competitive electricity markets and state energy policies by compelling private companies to operate unprofitable plants, potentially at taxpayer expense, with no sunset provision. They contend that the prohibition on FERC considering greenhouse gas emissions is a policy thumb on the scale that could lock in decades of additional fossil fuel combustion in regions already struggling with air quality. Critics also argue that the bill's financial support mechanism — redirecting funds from the Infrastructure Investment and Jobs Act and the Inflation Reduction Act — diverts money Congress already appropriated for other purposes, and that market-based capacity mechanisms managed by RTOs and ISOs are better suited to address reliability gaps without mandating specific plant operations.
Constitutional context
The bill rests on Congress's Commerce Clause authority (Art. I, §8, cl. 3) to regulate interstate electricity transmission, which is the established basis for the Federal Power Act. However, the provision shielding plant operators from state and local environmental law compliance raises Tenth Amendment and preemption questions. Post-Loper Bright (2024), FERC's interpretation of its own expanded authority under this bill would receive no automatic judicial deference, meaning courts would independently assess whether the statutory language clearly authorizes each regulatory action FERC takes under it.
Checks and balances
Congress would gain authority over plant retirement decisions by embedding prohibitions directly in the Federal Power Act; FERC administers the exemption process and is checked by judicial review in the D.C. Circuit or relevant circuit courts of appeals, while the DOE Secretary retains discretion over grant and loan terms.
Historical precedent
Section 202(c) of the existing Federal Power Act already allows the Department of Energy to order power plants to keep operating during emergencies, but no prior statute has imposed a prospective, standing prohibition on retirements tied to NERC risk classifications.