S-3034-119
Committee on Energy and Natural Resources Subcommittee on Energy. Hearings held.
Sponsored by Tom Cotton (R-AR)
What it does
This bill would amend the Federal Power Act to require the Federal Energy Regulatory Commission (FERC) to review and comment on proposed federal regulations that could affect electricity generation resources when the grid is determined to be at risk of supply shortfalls. It would also require the Electric Reliability Organization (ERO) to conduct annual long-term assessments of the bulk-power system's ability to meet electricity demand under normal and extreme weather conditions. If the ERO finds the grid at risk of inadequate generation, federal agencies — including the EPA and Department of Energy — would be required to submit relevant pending regulations to FERC for review, and could not finalize those regulations until FERC determines they would not significantly harm grid reliability.
Who benefits
Electricity consumers who could benefit from reduced risk of blackouts or supply shortfalls. Fossil fuel and nuclear power plant operators whose facilities might otherwise be retired or constrained by EPA or other federal regulations. Grid operators and utilities seeking greater coordination between reliability and environmental rulemaking. Rural and low-income communities that are disproportionately harmed by power outages. Industrial users (manufacturers, hospitals, data centers) that depend on uninterrupted electricity supply. States with aging generation fleets that face near-term reliability concerns.
Who is hurt
Federal agencies — particularly the EPA — whose rulemaking timelines and authority could be delayed or constrained by FERC's review and approval process. Environmental and public health advocates whose preferred regulations could be slowed or modified. Renewable energy developers who may face a regulatory environment that slows the retirement of competing fossil fuel plants. Future generations and communities near power plants who could experience delayed reductions in air or water pollution. Agencies with Cabinet-level heads that would bear new procedural compliance costs.
Supporters argue
Supporters argue that federal environmental regulations — particularly EPA rules targeting power plant emissions — have accelerated the retirement of dispatchable generation faster than replacement capacity can be built, creating measurable reliability risks documented by FERC, NERC, and regional grid operators in recent reliability assessments. They contend that requiring FERC to formally review and comment on regulations affecting generation resources before they are finalized is a common-sense coordination mechanism that does not block any regulation, but ensures reliability consequences are fully weighed and publicly disclosed before rules take effect.
Opponents argue
Opponents argue that giving FERC effective veto power over EPA rulemakings — by prohibiting finalization until FERC certifies no significant reliability impact — subordinates congressionally mandated environmental and public health protections to a reliability standard that can be defined broadly enough to delay or block almost any emissions rule. They contend that existing interagency review processes already require coordination, and that this bill creates a structural mechanism to slow or stall regulations protecting air quality and climate, with compliance timelines that could stretch years beyond statutory deadlines set by the Clean Air Act and other laws.
Constitutional context
The bill implicates the separation of powers and the major questions doctrine established in West Virginia v. EPA (2022), which held that agencies must have clear congressional authorization for rules of vast economic and political significance. By requiring FERC — an independent regulatory commission — to effectively approve or block rules by Cabinet-level executive agencies, the bill raises questions about whether Congress can structure inter-agency authority this way, and whether FERC's reliability determinations could be challenged as exceeding its own statutory mandate under the Federal Power Act. Post-Loper Bright (2024), courts would independently assess whether FERC's expanded role is clearly authorized.
Checks and balances
FERC, an independent commission, would gain authority to delay or block Cabinet-level executive agency regulations; the check on this power is that FERC's determinations are subject to judicial review, agencies retain the right to respond in writing and explain their choices, and Congress retains oversight authority over both FERC and the rulemaking agencies.
Historical precedent
No directly analogous statute has previously granted an independent regulatory commission formal pre-finalization review authority over Cabinet-level executive agency rulemakings; however, Executive Order 12866 (1993) established a similar interagency review process through the Office of Management and Budget's Office of Information and Regulatory Affairs.