[Congressional Record Volume 158, Number 116 (Wednesday, August 1, 2012)]
[House]
[Pages H5602-H5604]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RESOLVING ENVIRONMENTAL AND GRID RELIABILITY CONFLICTS ACT OF 2012
Mr. OLSON. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 4273) to clarify that compliance with an emergency order under
section 202(c) of the Federal Power Act may not be considered a
violation of any Federal, State, or local environmental law or
regulation, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4273
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Resolving Environmental and
Grid Reliability Conflicts Act of 2012''.
SEC. 2. AMENDMENTS TO THE FEDERAL POWER ACT.
(a) Compliance With or Violation of Environmental Laws
While Under Emergency Order.--Section 202(c) of the Federal
Power Act (16 U.S.C. 824a(c)) is amended--
(1) by inserting ``(1)'' after ``(c)''; and
(2) by adding at the end the following:
``(2) With respect to an order issued under this subsection
that may result in a conflict with a requirement of any
Federal, State, or local environmental law or regulation, the
Commission shall ensure that such order requires generation,
delivery, interchange, or transmission of electric energy
only during hours necessary to meet the emergency and serve
the public interest, and, to the maximum extent practicable,
is consistent with any applicable Federal, State, or local
environmental law or regulation and minimizes any adverse
environmental impacts.
``(3) To the extent any omission or action taken by a
party, that is necessary to comply with an order issued under
this subsection, including any omission or action taken to
voluntarily comply with such order, results in noncompliance
with, or causes such party to not comply with, any Federal,
State, or local environmental law or regulation, such
omission or action shall not be considered a violation of
such environmental law or regulation, or subject such party
to any requirement, civil or criminal liability, or a citizen
suit under such environmental law or regulation.
``(4)(A) An order issued under this subsection that may
result in a conflict with a requirement of any Federal,
State, or local environmental law or regulation shall expire
not later than 90 days after it is issued. The Commission may
renew or reissue such order pursuant to paragraphs (1) and
(2) for subsequent periods, not to exceed 90 days for each
period, as the Commission determines necessary to meet the
emergency and serve the public interest.
``(B) In renewing or reissuing an order under subparagraph
(A), the Commission shall consult with the primary Federal
agency with expertise in the environmental interest protected
by such law or regulation, and shall include in any such
[[Page H5603]]
renewed or reissued order such conditions as such Federal
agency determines necessary to minimize any adverse
environmental impacts to the maximum extent practicable. The
conditions, if any, submitted by such Federal agency shall be
made available to the public. The Commission may exclude such
a condition from the renewed or reissued order if it
determines that such condition would prevent the order from
adequately addressing the emergency necessitating such order
and provides in the order, or otherwise makes publicly
available, an explanation of such determination.''.
(b) Temporary Connection or Construction by
Municipalities.--Section 202(d) of the Federal Power Act (16
U.S.C. 824a(d)) is amended by inserting ``or municipality''
before ``engaged in the transmission or sale of electric
energy''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Texas (Mr. Olson) and the gentleman from Pennsylvania (Mr. Doyle) each
will control 20 minutes.
The Chair recognizes the gentleman from Texas.
General Leave
Mr. OLSON. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
insert extraneous materials in the Record on H.R. 4273.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. OLSON. Mr. Speaker, I yield myself as much time as I may consume.
Mr. Speaker, I rise today in support of H.R. 4273, Resolving
Environmental and Grid Reliability Conflicts Act of 2012.
My colleagues and I carefully drafted this bill to resolve a conflict
between the Federal Power Act and environmental laws and regulations
that, if left unresolved, could create serious problems for the
reliability of our Nation's electric grid.
Every year, as the heat of summer settles in across our country and
demand surges for electricity, the potential for dangerous power
outages grows. Some States, such as California, and my home State of
Texas, are being warned by electricity regulators that reserve margins
could dip dangerously low.
Texas is expected to have a 2,500 megawatt shortfall in generating
capacity--equivalent to five large power plants--as early as 2014. This
shortfall could cause rolling blackouts across Texas that have the
potential to impact more than 25 million people.
{time} 1910
As we've seen happen before in our country, and as we are watching it
unfold in India this week, an unexpected loss of power can result in
significant harm to human health and the environment.
Prior experience shows that in rare and limited circumstances,
emergency actions are needed to ensure the reliable delivery of
electricity. In these circumstances, the Department of Energy has a
tool of last resort to address the emergency. That tool is an emergency
order issued under section 202(c) of the Federal Power Act. DOE can
order a power plant to generate electricity when outages occur due to
weather events, equipment failures, or when the electricity supply is
too low and could cause a blackout. As they should, DOE can force a
company to comply with a 202(c) order even if it means a technical
violation of environmental law. Unfortunately, under current law, a
company or individual can be held liable for this technical violation
even when they are acting under a Federal order to avoid a blackout.
In recent years, these conflicting Federal laws have resulted in
lawsuits and heavy fines for electricity providers who were complying
with DOE orders. A power generator in San Francisco had to pay a
significant sum as a settlement after they were ordered by DOE to
exceed their emissions limits to avoid a blackout. Unless Congress
passes legislation to resolve the potential conflict of laws, the
effectiveness of this tool is in jeopardy.
As testimony this year before the House Energy and Commerce Committee
confirms, the next time DOE invokes 202(c), the power generator may
choose to fight the order in court if it conflicts with an
environmental law. Conflicting Federal laws put a power generator in a
no-win situation--either sue DOE to comply with environmental laws or
be sued by third parties for compliance with DOE orders.
H.R. 4273 eliminates the legal conflict facing power generators and
their customers by providing a needed safety valve, which clarifies
that compliance with an emergency order under section 202(c) of the
Federal Power Act may not be considered a violation of any Federal,
State, or local environmental law or regulation.
Emergency orders are not issued lightly and only under extreme power
reliability scenarios. In the last 30 years, this authority has only
been used six times. But when the need arises, my legislation will
ensure that DOE works to minimize any adverse environmental impacts,
meaning they must balance environmental interests with reliability
needs.
While I believe DOE may need to use its emergency authority more
often in the future given the strain EPA's new power sector rules will
put on the electric grid, I still expect DOE emergency authority orders
to be the exception, not the rule.
In those rare instances when the authority is invoked, we should not
punish generators that are simply following orders from the Federal
Government. That's why we must amend the Federal Power Act so that
generators are not forced to choose between compliance with an
emergency order and environmental regulations.
This conflict is why I introduced this bipartisan legislation to
allow America's power companies to comply with Federal orders to
maintain grid reliability during a power emergency without facing
lawsuits or penalties.
I am extremely pleased with the bipartisan support this bill has
received. This is proof that we can find common ground when working to
address a critical glitch in Federal law and provide reliable energy
supply to all Americans.
I want to thank committee Chairman Fred Upton, Ranking Member Henry
Waxman, and Subcommittee Chairman Ed Whitfield and Ranking Member Bobby
Rush for their support and assistance in moving this bill forward. I
also want to thank my colleagues on the committee, Gene Green and Mike
Doyle, for working with me to fix this problem and to keep power
running for all Americans in an emergency.
Mr. Speaker, I urge my colleagues to support this commonsense,
bipartisan legislation that protects energy consumers, the environment,
and those who provide the power.
I reserve the balance of my time.
Mr. DOYLE. Mr. Speaker, I yield myself as much time as I may consume.
The bill before us today is the result of efforts from both sides of
the aisle to find a solution that really works for industry,
government, and our environment.
Currently, the Department of Energy has the authority to issue a
``must-run'' order to a power provider in emergency cases to protect
grid reliability. At the same time, environmental laws and regulations
could prohibit a company from complying with a DOE must-run order. So a
company is left in the position of choosing which law it violates--
environmental rules or an emergency order from the Department of
Energy.
In fact, Mr. Speaker, this has happened in the past. During the
California energy crisis, and as recently as 2005 in Virginia, a
company was issued emergency orders by the Department of Energy. To
comply with those orders, the company was temporarily in noncompliance
with environmental law. Therefore, after complying with an emergency
must-run order, the company was both fined and forced to settle a
citizen lawsuit. If it happens once, twice, or 50 times, it will never
be proper for the Federal Government to put a company in the position
of choosing which law to violate.
Reliability concerns for our electric grid are real, and power plant
retirements are being announced nearly every week. In June, the North
American Electric Reliability Corporation issued their summer
reliability assessment. They told us that reserves in Texas are coming
up short to meet peak demand and that the California reserve margin
will be extremely tight.
So this bill will fix a clear conflict in Federal laws with a narrow,
targeted approach. This bill will ensure that the Department of Energy
will have the ability to keep the lights on while still protecting the
environment.
[[Page H5604]]
The bill before us simply clarifies that if an emergency order issued
pursuant to section 202(c) of the Federal Power Act may result in such
a conflict with an environmental law or regulation, it shall expire not
later than 90 days after issuance. This is to ensure that DOE continues
to have the necessary authority to ``keep the lights on'' in true
emergencies.
It then gives DOE the opportunity to renew or reissue such an order
for an additional 90-day period after consulting with the appropriate
Federal agencies and including conditions submitted by such agencies to
mitigate adverse environmental impacts. DOE may exclude a recommended
condition from the order if it determines the condition would prevent
the order from adequately addressing the emergency.
Mr. Speaker, this bill is the result of many months of work with
members on both sides of the Energy and Commerce Committee. It is
supported by both the chairman and the ranking member of the committee.
And I ask my colleagues to support it also.
I want to thank the gentleman from Texas (Mr. Olson). It has been a
pleasure to work with him on this piece of legislation. It is my hope
that all our colleagues also support this legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. OLSON. I thank my colleague from Pennsylvania for his kind words.
Mr. Speaker, at this time, I see no colleagues on my side of the
aisle looking to speak, so I will reserve the balance of my time.
Mr. DOYLE. Mr. Speaker, it is a pleasure for me to now yield such
time as he may consume to the gentleman from Texas (Mr. Gene Green), a
valuable member of our Energy and Commerce Committee.
Mr. GENE GREEN of Texas. Mr. Speaker, I would like to thank both my
colleague from Pennsylvania and also my neighbor in Texas, Congressman
Olson, for making sure we get this bill to the floor today.
I rise in strong support of H.R. 4273, the Resolving Environmental
and Grid Reliability Conflicts Act of 2012. This bipartisan legislation
addresses a longstanding conflict in Federal law where a company or
individual can be held liable for violating environmental laws when
complying with a Federal order to generate power to avoid blackouts.
Section 202(c) of the Federal Power Act gives the Department of
Energy the authority to order an electric-generating facility to
operate to avoid a reliability emergency. At the same time,
environmental laws and regulations may restrict the operation of power
plants or transmission lines.
So if a company or publicly owned utility is ordered by the DOE to
operate under section 202(c) and at the same time is prohibited from
operating in accordance with the DOE order due to environmental
limitations, the operator must choose which legal mandate to follow.
These conflicting legal mandates should not complicate an electric
reliability crisis.
As a long-time member of the Energy and Commerce Committee and
someone who has worked on both reliability and environmental
legislation during that time, I can honestly say it was never our
intention to put electric-generating facilities in the position of
having to choose between compliance with one law over another.
And while there have only been a couple of instances to date where a
generator has been in this situation, the potential for conflict will
only grow as several coal-fired plants are scheduled to be taken
offline in the coming years.
And as my Pennsylvania colleague noted, we have potential reliability
issues in my and Mr. Olson's home State of Texas. Even though we are
under a separate grid--ERCOT--it's important that we have this
distinction corrected.
{time} 1920
That's why Congress needs to address this issue, right here, right
now or else we risk threatening our electrical reliability. H.R. 4273
clarifies that if an emergency order issued pursuant to section 202(c)
of the Federal Power Act may result in a conflict with an environmental
law or regulation, the order shall expire no later than 90 days after
issuance. This is to ensure that DOE continues to have the necessary
authority to ``keep the lights on'' in true emergencies.
However, it then gives DOE the opportunity to renew or reissue the
order for an additional 90-day period only after consulting with the
appropriate Federal agencies and including conditions submitted by
these agencies to mitigate the adverse environmental impacts.
This is not a messaging bill. This is not an anti-EPA bill or an anti
air toxic standards bill. Instead, it's a commonsense bill that would
address a very worrisome deficiency in current law that is only going
to become more prominent in the coming years.
This is one of a handful of bills that actually was supported by both
Democrats and Republicans in the Energy and Commerce Committee. It also
has support from the utility industry. That's why I encourage my
colleagues on both sides of the aisle to support the bill.
Mr. OLSON. Mr. Speaker, I reserve the balance of my time to close.
Mr. DOYLE. Mr. Speaker, we have no further speakers, and at this time
I yield back the balance of my time.
Mr. OLSON. Mr. Speaker, in closing, H.R. 4273 is a bipartisan,
commonsense piece of legislation that ensures that during a power
crisis, the lights will come on when it's dark, the heat will come on
when it's cold, and the air conditioning will come on when it's hot.
And lives will be saved.
I urge my colleagues to vote for H.R. 4273, and I yield back the
balance of my time.
Mr. WAXMAN. I would like to make a few comments on the committee
process for H.R. 4273.
As introduced, I had substantial concerns about H.R. 4273. The
introduced bill gave the Department of Energy unprecedented and
unchecked new authority to waive any federal, state or local
environmental law if DOE determines there is an emergency with respect
to electric power, and the only references to environmental safeguards
in the bill were hortatory. This approach was unacceptable. I also
believed that the bill was unnecessary, as federal agencies already
have the tools necessary to resolve any conflicts between environmental
requirements and emergency orders.
However, the bill's sponsors, the committee Chairman, and the
affected industry were willing to engage in serious, substantive
negotiations to improve the bill, which produced significant
improvements. The version of the bill reported from Committee is
narrower in scope and effect, and provides some environmental
safeguards.
I would like to extend my thanks to all of the participants in the
negotiations for a good-faith and productive process. In particular, I
would like to thank Mr. Doyle and Mr. Green for their leadership and
hard work on making improvements and producing a bill that can be
supported on a broad bipartisan basis. I also want to thank Chairman
Upton and Subcommittee Chairman Whitfield and Representative Olson for
working with us. The language of this bill represents a delicate
compromise that was very carefully negotiated, and changes to the bill
before us could well jeopardize that broad support.
H.R. 4273, as it is before us today, requires any emergency order
that may result in a conflict with environmental requirements to
require generation only during the hours necessary to meet the
emergency and to minimize any adverse environmental impacts to the
maximum extent practicable. The reported bill also limits the length of
such an order to 90 days, and requires any renewed order to include any
conditions identified by the relevant federal environmental agency as
necessary to minimize any environmental impacts.
In discussions and testimony on the bill, DOE officials informed the
Committee that in any situation where time permits, they always consult
with and rely on the relevant expert environmental agency with respect
to minimizing environmental impacts of an emergency order, and they
assured the Committee that they would continue this practice. This
assurance is important to my support for the bill.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Texas (Mr. Olson) that the House suspend the rules and
pass the bill, H.R. 4273, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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