S-4337-119
Read twice and referred to the Committee on Energy and Natural Resources.
Sponsored by Edward Markey (D-MA)
What it does
This bill would amend Section 202(c) of the Federal Power Act to restrict the Federal Energy Regulatory Commission's (FERC) ability to issue emergency orders that keep fossil fuel power plants operating or delay their retirement. It would require FERC to hold public hearings, consider environmentally friendlier alternatives, estimate ratepayer cost impacts, and publish detailed reports before issuing or renewing such orders. It would also require electric utilities to notify customers in writing within 60 days when an emergency order affects their rates.
Who benefits
Electricity ratepayers who would gain transparency about cost impacts of emergency orders on their bills. Environmental advocacy groups and communities near fossil fuel plants that would benefit from mandatory consideration of cleaner alternatives. Renewable energy companies that compete with fossil fuel plants kept online by emergency orders. State and local regulators who would gain a formal consultation role. Future ratepayers if cleaner alternatives are selected over costlier fossil fuel operations.
Who is hurt
Fossil fuel power plant owners and operators whose facilities could be retired without the option of emergency extensions, except in narrow circumstances. Electric utilities that rely on aging fossil fuel plants as backup capacity and may face reliability challenges. Grid operators (Transmission Organizations) who would lose flexibility in managing supply emergencies. Electricity customers in regions with limited generation alternatives who could face reliability risks if emergency orders are restricted. Workers at fossil fuel plants that might close sooner than they otherwise would.
Supporters argue
Supporters argue that FERC has repeatedly used its Section 202(c) emergency authority to keep aging, polluting fossil fuel plants online — sometimes for years — without adequate public scrutiny or ratepayer cost accounting, effectively subsidizing the fossil fuel industry through higher electricity bills. They contend that mandatory consideration of cleaner alternatives, public hearings, and transparent cost reporting would ensure emergency authority is used only as a genuine last resort, protecting both consumers and the environment from unnecessary and costly extensions of fossil fuel operations.
Opponents argue
Opponents argue that adding procedural requirements — public hearings, multi-agency consultations, and mandatory alternative analyses — to an emergency authority designed for rapid response could dangerously slow FERC's ability to prevent blackouts during grid crises, when hours or days matter. They contend that restricting the retirement-delay authority to cases where no other option exists sets an impractically high bar, potentially leaving grid operators without the flexibility needed to maintain reliability during extreme weather events or unexpected plant outages, ultimately harming the very ratepayers the bill aims to protect.
Constitutional context
FERC's authority under the Federal Power Act rests on the Commerce Clause (Art. I, §8, cl. 3), which grants Congress broad power to regulate interstate electricity markets. Post-Loper Bright (2024), courts will independently review whether FERC's interpretation of its own emergency authority — and any new procedural constraints Congress imposes — is consistent with the statute, without deferring to the agency's reading.
Checks and balances
Congress would narrow FERC's emergency authority; FERC retains discretion within the new procedural limits; courts would independently review FERC orders under post-Loper Bright standards; state and local agencies gain a formal consultative check on federal emergency orders.
Historical precedent
FERC has issued multiple Section 202(c) orders in recent years — including during the 2021 Texas winter storm and subsequent grid stress events — to keep fossil fuel plants online, drawing criticism from environmental groups and ratepayer advocates over cost and transparency.