Courts rule in favor of New York, Illinois zero-emission credit programs

Published on July 31, 2017 by Kevin Randolph

Federal district courts in New York and Illinois dismissed cases challenging the state’s zero-emission credit programs, drawing praise from the nuclear industry.

“These are big wins for state and local economies and the environment,” NEI Vice President, General Counsel and Secretary Ellen Ginsberg said. “We now have expansive opinions from two courts validating
the legality of state actions to retain nuclear generation as part of their efforts to save jobs and protect the environment.”

The programs, approved by the two states last year, are designed to recognize nuclear plants’ zero-emissions attributes and their contributions to meeting the states’ renewable energy targets.

The Electric Power Supply Association (EPSA), several merchant generators and other entities filed the lawsuits, saying that the Federal Power Act prohibits states from enacting such programs and that this authority lies with Federal Energy Regulatory Commission (FERC).

“Fatal to plaintiffs’ argument is their failure to offer any cogent explanation why ZECs are preempted but other state incentives to generate clean energy—such as tax exemptions, land grants, or direct financial subsidies—are not,” the New York court ruled.

The plaintiffs appealed the Illinois decision to the U.S. Court of Appeals for the 7th Circuit. An appeal of the New York decision to the U.S. Court of Appeals for the 2nd Circuit is expected.