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Coalition for Competitive Electricity, Dynegy Inc. v. Zibelman

United States District Court, S.D. New York

July 25, 2017

COALITION FOR COMPETITIVE ELECTRICITY, DYNEGY INC., EASTERN GENERATION, LLC, ELECTRIC POWER SUPPLY ASSOCIATION, NRG ENERGY, INC., ROSETON GENERATING LLC, and SELKIRK COGEN PARTNERS, L.P., Plaintiffs,
v.
AUDREY ZIBELMAN, in her official capacity as Chair of the New York Public Service Commission, PATRICIA L. ACAMPORA, GREGG C. SAYRE, and DIANE X. BURMAN, in their official capacities as Commissioners of the New York Public Service Commission, Defendants, and CONSTELLATION ENERGY NUCLEAR GROUP, LLC, EXELON CORPORATION, R.E. GINNA NUCLEAR POWER PLANT LLC, and NINE MILE POINT NUCLEAR STATION LLC, Intervenors.

          MEMORANDUM OPINION & ORDER

          VALERIE CAPRONI, United States District Judge

         Some say that human-caused global warming is a “hoax, ”[1] while others accept the overwhelming scientific conclusion that human activities, and particularly carbon dioxide discharges into the atmosphere, are causing the planet to warm. Although no individual State can reverse the trend all by itself, New York and many other States have decided that they will do their part to reduce the emissions that contribute to global warming. The issue in this case is whether the method New York has chosen to facilitate its doing so is constitutional. For the reasons that follow, the Court concludes that the New York program is constitutional.

         Plaintiffs are various electrical generators and trade groups of electrical generators. They challenge one aspect of the Clean Energy Standard (“CES”) Order, adopted by the New York Public Service Commission (“PSC”), that awards credits to certain nuclear generators for their zero-emissions electricity production. Plaintiffs claim that this program is preempted under the Federal Power Act (“FPA”) and that it violates the dormant Commerce Clause.

         Defendants, who are PSC members, move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that there is no private right of action for Plaintiffs' preemption claims and that, even if there were, Plaintiffs' claims would fail as a matter of law. Notice of Defendants' Motion to Dismiss, Dkt. 54. Intervenors, who are the nuclear generators receiving the zero-emissions credits and their owners, also move to dismiss pursuant to Rule 12(b)(6). Notice of Motion, Dkt. 76. For the following reasons, the Court GRANTS both motions to dismiss.

         BACKGROUND[2]

          The Electricity Market

         In New York, wholesale electricity is bought and sold through market-based auctions administered by the New York Independent System Operator (“NYISO”). Compl. ¶ 28. The NYISO, which is regulated by the Federal Energy Regulatory Commission (“FERC”), conducts two types of auctions: energy and capacity. Compl. ¶¶ 28-29. Energy auctions are for the purchase and sale of electricity itself, whereas capacity auctions are for the purchase and sale of options to purchase electricity. Compl. ¶ 36. Retail electricity suppliers, also called load-serving entities (“LSEs”), purchase electricity at wholesale from generators in these auctions. Compl. ¶ 35. Although some of the buyers are located outside New York, most of the buyers are in-state utilities that resell energy at retail to New York customers and businesses. Compl. ¶ 28. The energy suppliers in the wholesale auction include generators located inside and outside of New York. Compl. ¶ 28.

         The NYISO auctions determine electricity prices in the New York wholesale market. Compl. ¶ 27. The auction operates by “stacking” bids from generators for the sale of energy or capacity, beginning with the lowest bid and moving up until demand is satisfied. Compl. ¶¶ 32-33. The price of the highest-stacked bid that satisfies demand is known as the “market clearing price.” Compl. ¶ 33. Any generator that bids at or below the market-clearing price “clears” the auction and is paid the market-clearing price, regardless of the price the generator actually bid.[3]Compl. ¶¶ 33, 39. This pricing mechanism incentivizes generators to be efficient and cost-effective: “it creates price signals for new capacity to enter the market if [the generator] can supply capacity at prices below the clearing price. At the same time, the market provides price signals for existing suppliers to exit the market if they are unable to beat the clearing price.” Compl. ¶ 40 (citation and internal quotation marks omitted).

         Nuclear generators, such as Intervenors, bid as so-called “price-takers” in the NYISO auctions, meaning that they sell their entire output at the market-clearing price. Compl. ¶ 34. Unlike other types of electricity generators that can adjust their output to produce more or less energy depending on price, nuclear generators run continuously at maximum output. Compl. ¶ 34. Nuclear generators thus sell their entire electricity output into the auctions regardless of the price-even if the price is below their cost of production. Compl. ¶ 34.

         Plaintiffs allege that the nuclear generators' price-taking behavior depresses market-clearing prices because the nuclear generators increase the energy supply available at auction. Compl. ¶ 34. Plaintiffs further allege that all electricity produced by these nuclear generators must be sold in the NYISO energy auctions because they have no alternative way to sell their output. Compl. ¶¶ 34, 64.

         New York's ZEC Program

         In order to promote the development of clean energy as part of New York's effort to stanch global warning, the PSC issued the CES Order. CES Order, Dkt. 76-1. The CES Order created two programs: Renewable Energy Credits (“RECs”) and Zero-Emission Credits (“ZECs”). CES Order at 13-14. The CES Order was adopted in furtherance of New York's goal to generate fifty percent of its electricity using renewable sources by 2030, which supports New York's broader mission to reduce greenhouse gas emissions statewide by forty percent by 2030. CES Order at 2, 12.

         Tier 1 of the CES Order, which implements the REC program, requires all New York LSEs “to serve their retail customers by procuring new renewable resources.” CES Order at 14; see also Compl. ¶ 49. Generators that produce energy from renewable sources, like wind or solar, are awarded a credit (a REC) for each megawatt-hour (“MWh”) of renewable-generated electricity produced from renewable resources. Compl. ¶ 49; CES Order at 106. The New York State Energy Research and Development Authority (“NYSERDA”) purchases RECs from generators, thereby subsidizing their cost of production, and, in turn, sells those RECs to LSEs. CES Order at 16, 107-08. Each LSE is required to purchase RECs in an amount based on a percentage of the total load served by that LSE or make an alternative compliance payment. Compl. ¶ 49; CES Order at 14-16. The cost of the RECs is passed on to commodity customers. CES Order at 17.

         Tier 3 of the CES Order establishes New York's ZEC program, the program challenged in this case. CES Order at 19. A ZEC is a “credit for the zero-emissions attributes of one megawatt-hour of electricity production by” an eligible nuclear facility. CES Order, App'x E, at 1. Through the ZEC program, New York aims to “encourage the preservation of the environmental values or attributes of zero-emissions nuclear-powered electric generating facilities for the benefit of the electric system, its customers and environment.” CES Order, App'x E, at 1. In particular, the ZEC program ensures that New York's nuclear generators- which comprise thirty-one percent of New York's electric generation mix and collectively avoid the emission of over fifteen million tons of carbon dioxide per year-continue to contribute to New York's electric generation mix pending the development of new renewable energy resources between now and 2030. CES Order at 19. According to the CES Order, losing the nuclear energy contributed by the generators before new renewable resources are developed “would undoubtedly result in significantly increased air emissions” and a “dangerously higher reliance on natural gas”; without the carbon-free attributes of the nuclear generators, New York would have to rely more heavily on existing fossil-fueled energy plants or the construction of new natural gas plants for its electricity, all of which would significantly increase carbon emissions.[4] CES Order at 19. The CES Order cites Germany as a case in point: when Germany abruptly closed its nuclear plants following the Fukushima nuclear disaster, the electricity that had formerly been produced by nuclear generation was replaced by electricity generated by coal, causing carbon emissions to rise despite a simultaneous and “aggressive” increase in solar generation. CES Order at 19.

         A nuclear generator is eligible for ZECs if it makes a showing of “public necessity, ” i.e., the facility's revenues “are at a level that is insufficient to provide adequate compensation to preserve the zero-emission environmental values or attributes historically provided by the facility.” Compl. ¶ 67 (quoting CES Order at 124). Any nuclear generator, regardless of its location, is eligible for ZECs, so long as the generator has historically contributed to the resource mix of clean energy consumed by New York retail consumers.[5] Compl. ¶ 68 (citing CES Order at 124). Pursuant to the CES Order, the nuclear generators sell their ZECs to NYSERDA at a price administratively determined by the PSC. Compl. ¶ 69. LSEs are required to purchase ZECs from NYSERDA in an amount proportional to their customers' share of the total energy consumed in New York.[6] CES Order at 20, 151; Compl. ¶ 73. The LSEs pass the costs of their ZEC purchases to their customers, the retail ratepayers. CES Order at 20; Compl. ¶ 73.

         ZEC prices are calculated by the PSC using the federal estimate of the social cost of carbon and a forecast of wholesale electricity prices.[7] Compl. ¶ 71 (citing CES Order at 131). Specifically, for a two-year period, the price of each ZEC is the social cost of carbon less the generator's putative value of avoided greenhouse gas emissions less the amount of the forecast energy price. Compl. ¶¶ 70-71 (citing CES Order at 131). Put differently, if the forecast wholesale price of electricity increases, the price of a ZEC decreases. Compl. ¶ 71. For the first two years of the ZEC program, from April 1, 2017, through March 31, 2019, the PSC has set the ZEC price at $17.48 per MWh. Compl. ¶ 70. Thus, “each qualifying nuclear generator will get an additional $17.48 for each MWh of electricity it generates (subject to a possible cap), in addition to the price the facility receives for the sale of the electricity and capacity in the [NYSIO] market.” Compl. ¶ 70.

         Plaintiffs allege that under the ZEC program, the nuclear generators eligible for ZECs effectively receive a higher price for their energy than they would have without the ZEC program and that the ZEC subsidies distort the market-clearing price in the NYISO auctions. Compl. ¶¶ 43-45. Plaintiffs allege that because the ZEC program allows the eligible nuclear generators to participate in the NYISO auctions when they otherwise would have gone out of business, New York “is using the ZEC subsidy to exert a large depressive effect on energy and capacity prices, which one group of experts estimated at $15 billion over 12 years.” Compl. ¶ 47. According to Plaintiffs, this depressive effect will cause generators, including Plaintiffs, to receive a lower price than they otherwise would have received and will cause their bids to fail to clear the auctions when they otherwise would have cleared. Compl. ¶¶ 74, 81, 87.

         Plaintiffs claim that the ZEC program is preempted under the FPA and that it violates the dormant Commerce Clause. Defendants and Intervenors move to dismiss, arguing that: Plaintiffs lack a private right of action to pursue their preemption claims in federal court; the ZEC program is not preempted; and the ZEC program does not violate the dormant Commerce Clause. For the following reasons, the Court holds that Plaintiffs may not raise their preemption claims pursuant to the Court's equity jurisdiction; that the ZEC program is neither field nor conflict preempted; and that the ZEC program does not violate the dormant Commerce Clause.

         DISCUSSION[8]

          In reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all of the non-movant's factual allegations as true and draws all reasonable inferences in the non-movant's favor. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although all factual allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Twombly, 550 U.S. at 555. To survive a Rule 12(b)(6) motion to dismiss, the complaint must “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         I. EQUITY JURISDICTION

         The Supremacy Clause does not create a cause of action for preemption claims, Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1383 (2015), and Plaintiffs do not argue that the FPA itself creates a private right of action. Accordingly, Plaintiffs' preemption claims are dependent on this Court having equity jurisdiction over the claims.

         Since Ex parte Young, 209 U.S. 123 (1908), “the Supreme Court has consistently recognized federal [equity] jurisdiction over declaratory-and injunctive-relief actions to prohibit the enforcement of state or municipal orders alleged to violate federal law.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 144 (2d Cir. 2016) (collecting cases). Nevertheless, federal courts' “equity [jurisdiction] to enjoin unlawful executive action is subject to express and implied statutory limitations.” Armstrong, 135 S.Ct. at 1385. The FPA does not expressly preclude actions in equity, but the parties contest whether Congress implicitly intended to foreclose equitable relief under the FPA.

         In Armstrong, the Supreme Court held that Congress implicitly foreclosed equitable relief under Section 30(A) of the Medicaid Act, which healthcare providers sought to enforce by enjoining state officials from reimbursing medical service providers at rates lower than the federal statute required. 135 S.Ct. at 1382, 1385. The Armstrong Court reasoned that Congress intended to foreclose equitable relief because (1) pursuant to the Medicaid Act, “the sole remedy” for a State's failure to comply with the Medicaid Act's requirements was the withholding of Medicaid funds by the Secretary of Health and Human Services, and (2) Section 30(A), which mandates that States provide for payments that are “consistent with efficiency, economy, and quality of care” while “safeguard[ing] against unnecessary utilization of . . . care and services, ” was judicially unadministrable. Id. at 1385 (alteration in Armstrong). According to the Supreme Court, the combination of those two features means that Congress intended to preclude private enforcement in equity of Section 30(A). Id. (“Explicitly conferring enforcement of this judgment-laden standard upon the Secretary alone establishes . . . that Congress ‘wanted to make the agency remedy that it provided exclusive, '. . . .” (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 292 (2002) (Breyer, J., concurring))).

         In Friends of the East Hampton Airport, the Second Circuit applied Armstrong's two criteria to the Airport Noise and Capacity Act (“ANCA”) in considering whether Congress intended to foreclose equitable relief; the Second Circuit held that Congress did not so intend. 841 F.3d at 145-47. Under ANCA, there is no “sole remedy” because ANCA not only provides for the loss of federal funding as a penalty for violating ANCA but also grants the Secretary of Transportation authority to pursue appropriate legal remedies, including injunctive relief. Id. at 145-46 (citing 49 U.S.C. §§ 47526, 47533). The Second Circuit reasoned that “[t]he fact that Congress conferred such broad enforcement authority on the [Federal Aviation Administration], and not on private parties, does not imply its intent to bar such parties from invoking federal jurisdiction where, as here, they do so not to enforce the federal law themselves, but to preclude a municipal entity from subjecting them to local laws enacted in violation of federal requirements.”[9] Id. at 146. The Second Circuit also held that ANCA was judicially administrable because it set forth a simple rule-namely, that airports seeking to impose noise restrictions on certain types of aircraft must obtain the consent of aircraft operators or the approval of the Federal Aviation Administration. Id. at 146-47 (citing 49 U.S.C. § 47524(c)).

         The FPA tacitly forecloses private parties from invoking equity jurisdiction to challenge state laws enacted in alleged violation of the FPA because Congress implicitly provided a “sole remedy” in the FPA-specifically, enforcement by FERC. Similar to ANCA, the FPA grants FERC broad enforcement authority. For example, the FPA grants FERC discretion to bring an action in federal district court to enjoin any person violating the FPA or to enforce compliance. 16 U.S.C. § 825m(a). The FPA also requires every public utility to file with FERC rates for all sales subject to FERC's jurisdiction and empowers FERC to hold hearings to examine new or changed rates, to suspend rates, and to determine rates. 16 U.S.C. §§ 824d(c)-(e), 824e(a). Finally, the FPA authorizes any person to file a complaint with FERC to challenge, inter alia, anything done by a regulated entity in contravention of the FPA. 16 U.S.C. §§ 824e(a), 825e. But, unlike ANCA, Congress provided for a narrow private cause of action under the FPA in the Public Utility Regulatory Policies Act (“PURPA”), which authorizes private parties to challenge state rules governing small power production facilities, after first exhausting their administrative remedies. 16 U.S.C. § 824a-3(h)(2)(B). Congress's decision to create a limited private cause of action suggests that “the omission of a general private right of action in the [FPA] should . . . be understood as intentional.” Vill. of Old Mill Creek v. Star, No. 17 CV 1163, 2017 WL 3008289, at *9 (N.D. Ill. July 14, 2017); see Alexander v. Sandoval, 532 U.S. 275, 290 (2001) (“The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”); Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985) ((“[W]here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” (citation and internal quotation marks omitted omitted)). Thus, the FPA precludes private enforcement except as provided for by PURPA, and private parties such as Plaintiffs “cannot, by invoking [the Court's] equitable powers, circumvent Congress's exclusion of private enforcement.” Armstrong, 135 S.Ct. at 1385.

         The second indicator of congressional intent to preclude equitable relief to a private litigant, according to Armstrong, is the presence of a judicially unadministrable standard. The FPA's requirement that wholesale electricity rates be just and reasonable, 16 U.S.C. § 824d(a), is not judicially unadministrable.[10] The fact that courts must “afford great deference” to FERC in its determination of just and reasonable rates, Morgan Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cty., Wash., 554 U.S. 527, 532 (2008), does not mean that the determination of just and reasonable rates is judicially unadministrable-courts may defer to FERC's determination, but they do not abstain from all judgment regarding what constitutes a just and reasonable rate, see, e.g., id. at 545-46 (the Supreme Court in Fed. Power Comm'n v. Sierra Pac. Power Co., 350 U.S. 348 (1956), “provided a definition of what it means for a rate to satisfy the just-and-reasonable standard in the contract context”); Cent. Hudson Gas & Elec. Corp. v. FERC, 783 F.3d 92, 109-11 (2d Cir. 2015) (holding that FERC's determination of just and reasonable rates was adequately supported and not unreasonable); Mont. Consumer Counsel v. FERC, 659 F.3d 910, 918 (9th Cir. 2011) (“The Supreme Court has long held that the statutory command that rates be ‘just and reasonable' means that courts must balance ‘the investor and the consumer interests, ' and ‘[i]f the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry . . . is at an end.'” (quoting Fed. Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 602-03 (1944))). Indeed, by allowing FERC to file federal lawsuits, 16 U.S.C. § 825m(a), Congress necessarily anticipated that courts might have to oversee the enforcement of the just and reasonable rate standard, albeit with deference to FERC.[11]

         In sum, the Court finds that the first but not the second of Armstrong's factors indicates that Congress intended to preclude equitable relief to private parties. There is no indication in Armstrong that both factors must be satisfied in order to conclude that Congress intended to foreclose equitable relief to private parties. To the contrary, the Supreme Court in Armstrong considered the second factor-judicial administrability-in the event the provision authorizing the Secretary of Health and Human Services to enforce the statute by withholding funds “might not, by itself, preclude the availability of equitable relief.” 135 S.Ct. at 1385. The limited private right of action provided by PURPA is by itself sufficient to establish that Congress intended to foreclose equitable relief. Between a statute that establishes a narrow private cause of action allowing private lawsuits in some but not most cases and a statute that establishes a specific administrative remedy, the former indicates more clearly than the latter that Congress chose to eliminate general equitable relief for private parties. The issue of creating a private cause of action was squarely before Congress when it drafted and enacted the former provision, whereas Congress did not necessarily consider the possibility of a private right of action in drafting and enacting the latter provision. This Court can, therefore, more confidently infer that Congress intended to foreclose a private right of action in equity in the former scenario than in the latter. Accordingly, this Court does not have equity jurisdiction over Plaintiffs' FPA preemption claims. Nevertheless, even if the Plaintiffs could invoke the Court's equity jurisdiction, for the reasons provided below, Plaintiffs' preemption claims would fail.

         II. PREEMPTION

         The Supremacy Clause provides that the laws of the United States “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. In other words, “federal law preempts contrary state law.” Hughes, 136 S.Ct. at 1297.

         In considering a federal law's preemptive effect, “the ultimate touchstone” is Congress's purpose in enacting the law. Id. at 1297 (quoting Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008)). Relatedly, in determining whether a state law is preempted, the Court must “consider[] the target at which the state law aims.” Oneok, Inc. v. Learjet, Inc., 135 S.Ct. 1591, 1599 (2015) (emphases in original).

         State laws may be either “field” or “conflict” preempted. Field preemption exists where “Congress has forbidden the State to take action in the field that the federal statute pre-empts.” Oneok, 135 S.Ct. at 1595. In such circumstances, “Congress may have intended to foreclose any state regulation in the area, irrespective of whether state law is consistent or inconsistent with federal standards.” Id. (citation and internal quotation marks omitted). Conflict preemption, by contrast, “exists where compliance with both state and federal law is impossible, or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (citation and internal quotation marks omitted).

         Plaintiffs allege that the CES Order is both field and conflict preempted by the FPA. For the reasons set forth below, the Court concludes that it is neither.[12]

         A. Field Preemption

         The FPA is a paragon of cooperative federalism; it divides responsibility for the regulation of energy between state and federal regulators. See Hughes, 136 S.Ct. at 1292. For statutes such as the FPA, “where ‘coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal pre-emption becomes a less persuasive one.'” Id. at 1300 (Sotomayor, J., concurring) (quoting New York State Dept. of Social Servs. v. Dublino, 413 U.S. 405, 421 (1973)).

         FERC, on behalf of the federal government, has exclusive authority “to regulate ‘the transmission of electric energy in interstate commerce' and ‘the sale of electric energy at wholesale in interstate commerce.'” FERC v. Elec. Power Supply Ass'n (hereafter, “EPSA”), 136 S.Ct. 760, 767 (2016) (quoting 16 U.S.C. § 824(b)(1)).[13] Particularly relevant here, FERC also has the authority “to ensure that rules or practices ‘affecting' wholesale rates are just and reasonable.” Id. at 774 (discussing 16 U.S.C. § 824e(a)); see also 16 U.S.C. § 824d(a). This “affecting” jurisdiction is limited to rules or practices that “directly affect the wholesale rate.” EPSA, 136 S.Ct. at 774 (internal marks and citation omitted). “Indirect or tangential impacts on wholesale electricity rates” do not suffice; otherwise, the FPA's grant of jurisdiction to FERC would “assum[e] near-infinite breadth.” Id.

         Although FERC has substantial authority over interstate wholesale energy sales, the regulation of retail rates for sales of electricity belongs to the States. Hughes, 136 S.Ct. at 1292. Within the zone of exclusive state jurisdiction are “within-state wholesale sales” and “retail sales of electricity (i.e., sales directly to users).” EPSA, 136 S.Ct. at 768. States also retain jurisdiction “over facilities used for the generation of electric energy.” 16 U.S.C. § 824(b)(1). As discussed supra, to determine whether a State is regulating retail or wholesale rates, the Court must consider the target of the state law. Oneok, 135 S.Ct. at 1599.[14]

         1. Unconstitutional “Tethering” Under Hughes

         The Supreme Court recently grappled with the issue of preemption under the FPA in Hughes v. Talen Energy Marketing, LLC, 136 S.Ct. 1288 (2016). In Hughes, the Court concluded that a Maryland energy program was preempted because it impermissibly “set[] an interstate wholesale rate, contravening the FPA's division of authority between state and federal regulators.” 136 S.Ct. at 1297. The Maryland program, which obliged Maryland LSEs to enter into a contract-for-differences with a favored generator, required the favored generator to participate in the wholesale capacity auction, but guaranteed that generator the more favorable contract price (rather than the market-clearing price) for its energy. Id. at 1294-95, 1297. Importantly, the generator's receipt of the subsidy was explicitly contingent on the generator's sale of capacity into the wholesale auction: if the generator's capacity cleared the auction, and the market-clearing price was below the price stipulated in the contract-for differences, the LSEs paid the generator the difference between the contract price and the clearing price. Id. at 1295. The generator did not receive the subsidy if its capacity failed to clear the auction. Id. Because the Maryland program conditioned the generator's receipt of the subsidy on the generator's participation in the auction, but guaranteed the generator a rate distinct from the market-clearing price, Hughes concluded that the Maryland program “adjust[ed] an interstate wholesale rate” and was accordingly preempted. Id. at 1297.

         Hughes, however, left open the possibility for States to “encourag[e] production of new or clean generation through measures ‘untethered to a generator's wholesale market participation.'” Id. at 1299 (citation omitted). In doing so, the Supreme Court declined to address the permissibility of other State measures to incentivize clean energy, such as “tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector.” Id. Hughes emphasized: “So long as a State does not condition payment of funds on capacity clearing the auction, the State's program would not suffer from the fatal defect that renders Maryland's program unacceptable.” Id.

         Plaintiffs argue that the ZEC program is preempted under Hughes because, like the challenged Maryland program, the ZEC program is “tethered” to the wholesale auction. Plaintiffs argue that there is an impermissible tether because: (1) a nuclear generator is eligible for a ZEC only if the NYISO auction rates are insufficient for the generator to stay in business; (2) ZEC prices are calculated using forecast wholesale rates; and (3) the nuclear generators receiving the ZECs sell all of their power directly into the auction markets. Opp. 19-22; Oral Arg. Tr. (hereafter, “Tr.”) 22:2-23:22, 32:16-34:14, Dkt. 141 (Mar. 29, 2017). Unsurprisingly, Defendants and Intervenors dispute all of these arguments. The Court agrees with Defendants and Intervenors.

         The Court is not convinced by Plaintiffs' first argument. A whole host of measures that States might employ to encourage clean energy development-such as tax incentives or direct subsidies-involve propping up the operation of a generator that might otherwise be unprofitable. Hughes did not prohibit such state assistance, see Hughes, ...


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