Back in January, four of TVA’s local power company (LPC) customers filed a complaint at the Federal Energy Regulatory Commission (FERC) for the ability to pay TVA to use its transmission lines to access power from suppliers other than TVA. SACE has intervened and submitted comments, with support from Earthjustice and additional counsel. Here is a timeline of the filings and a high-level view of the issues in this ongoing case.
- January 11: Four LPCs (“Petitioners”) file complaint at FERC, FERC opens Docket EL21-40 for the case
- February 22: TVA files its initial response to Petioners, and nearly 50 organizations (including SACE) either intervene in the case, file comments on the Petition, or both
- March 9: TVA and a coalition of pro-TVA LPCs file similar responses to Environmental Comments
- March 15: SACE files a response to TVA’s initial response and later response to Environmental Comments
- March 16: Petitioners file response to TVA’s initial response
February 22: Summary of Comments Filed
Find a summary of the initial filing by SACE, Earthjustice, and counsel in our press release, and read the entire comments here. At a high level, we argue that FERC has the authority under federal law to require that TVA provide LPCs with access to its transmission system; that providing that access would not harm any customers that remain with TVA; and that opening TVA up to even this minute level of competition could spur the federal utility to reverse course from blocking clean energy toward being a clean energy and environmental justice champion.
The Center for Biological Diversity submitted comments on the case where they make several arguments, including that TVA, by maintaining its fossil fuel portfolio and thwarting renewable energy development, is ignoring the climate crisis and harming the very people Congress charged it to serve. The Center’s comments also point out that LPCs that have signed TVA’s long-term contracts are “unreliable litigants” because they would not be able to take advantage of TVA’s transmission access even if FERC were to grant it to the Petitioners. These long-term contracts have 20-year termination clauses, so LPCs that have signed these contracts have committed to purchase power from TVA for at least the next 20 years. Comments filed on behalf of Appalachian Voices, Energy Alabama, and Protect our Aquifer represented by the Southern Environmental Law Center (SELC) included a similar point, which builds on the case SELC has brought for the same clients in its lawsuit against TVA for these very long-term contracts.
Comments submitted by the Southern Renewable Energy Association describe how TVA’s anti-access stance is just the latest attempt by a Southeast utility to insulate itself from competition, and call on FERC to include this issue in a technical conference on broader market reforms across the Southeast. This technical conference could be merged with one requested by several intervenors in the FERC case about the Southeast Energy Exchange Market, or SEEM, (of which TVA is a member, and where both TVA and SACE are intervenors). Additional briefs in support of the Petitioners’ request were filed by customers of the Petitioners, other LPCs, and organizations in support of other LPCs seeking alternatives to TVA.
A number of LPCs and TVA-related organizations filed comments asking FERC not to grant the Petitioners transmission access. Based on our review, all of the LPCs that filed in support of TVA have signed TVA’s long-term contracts, and thus have a 20-year timeframe between when they could give TVA notice that they are leaving and when they could actually leave. The comments in support of TVA and TVA’s response were all variations on a few themes:
- FERC doesn’t have the authority to force TVA to provide transmission service to the Petitioners, and
- Even if FERC did have the authority, it shouldn’t use that authority because it would cause irreparable harm to TVA’s remaining customers.
March 9: TVA Responds only to Environmental Comments
On March 9, TVA and its proxy through a coalition of LPC customers filed separate but similar responses to a number of comments filed by environmental or clean energy organizations. In these filings, TVA is appearing to lump a variety of legal and public interest arguments into one strawman and attempt to delegitimize them all at once. We don’t think FERC Commissioners will fall victim to this obvious ploy.
March 15: SACE responds to TVA’s two filings
In order to respond to TVA’s original filing on Feb. 22 and its response to SACE and others on March 9, we filed our own response on March 15. In it, we argue that TVA’s claims that granting transmission access would cause harm to TVA’s remaining customers are overblown; that granting transmission access will allow TVA customers to meet environmental goals; and that granting this access is not in conflict with the TVA Act.
March 16: Original LPC Petitioners respond to TVA
The four LPC Petitioners that filed the original complaint with FERC asking for transmission service from TVA filed a response to TVA on March 16. In it, they refute TVA’s assertion that FERC does not have authority to require TVA to provide them transmission service with some pretty direct language calling out TVA’s claims it is above FERC jurisdiction. Some quotes in this regard include that, “Despite TVA’s contentions, the TVA Board is not empowered to pick and choose which Federal statutes or standards it will follow;” and that, “TVA claims that Congress, in enacting the TVA Act nearly a century ago, unwittingly created a fourth branch of the United States government.” Despite the cheeky language from the LPCs in this filing, we think this issue deserves serious consideration.
The Petitioners’ response also uses arguments introduced by SACE to push back against TVA’s claims that granting the Petitioners access to its transmission will be the start of a death spiral for TVA. One point that brings these claims into question is the fact that in late 2019, TVA’s own leadership claimed that TVA could lose 10-12% of its load without financial ramifications. Petitioners, which constitute approximately 3.6% of TVA’s load, attached the transcript that the TVA Board meeting where those claims were made. You can watch that conversation where TVA Board Member, Frazier asks how much load TVA could stand to lose before seeing significant financial impacts below starting at 2:00-2:04.
Source: TVA Board Meetings Archive, August 19, 2019
The Petitioners’ response also includes arguments made by several other commenters stating that TVA’s rhetoric was “designed to enlist the other LPCs to its cause” and cited a blog by yours truly on the fact that TVA offered to pay legal expenses for any LPC that would intervene or comment in support of its position.
We are in somewhat uncharted waters in this case. There is no defined schedule or deadline for a decision from FERC for this kind of complaint. Each time the Petitioners, TVA, or an intervenor files another response it must file a “Motion for Leave to Answer” and present new information in the case. We expect TVA will likely file one more time in order to respond to the Petitioners and also have the proverbial last word. At that point, back-and-forth filings could continue, or FERC could make a decision about how to proceed or settle the case. We will continue to follow the case closely and provide updates on future filings/decisions.