[Congressional Record (Bound Edition), Volume 158 (2012), Part 9]
[House]
[Pages 13137-13139]
[From the U.S. 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 
     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

[[Page 13138]]

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.
  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

[[Page 13139]]

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.
  Mr. DINGELL. Mr. Speaker, I am proud that the Energy & Commerce 
Committee has been able to come up with another bipartisan piece of 
legislation that addresses a significant problem. I thank Chairman 
Upton, Ranking Member Waxman, as well as my good friends Mr. Green and 
Mr. Doyle. The work they and their staffs put into this bill is 
admirable.
  To quote Charles Dickens' Oliver Twist, ``the law is an ass.'' 
Current law makes no sense by forcing a utility to comply with one 
federal agency and then be fined by another for complying. The bill 
before us eliminates this contradiction and will provide certainty to 
utilities that might need to operate under an order in the future. I 
believe the compromise negotiated will allow environmental protections 
to stay in place while ensuring the Department of Energy has the tools 
it needs in order to respond quickly to true emergencies.
  Of the few emergency orders that have been issued under the Federal 
Power Act, most have been short term propositions. If an emergency 
order violates an environmental law, the negotiated compromise will 
allow the Department of Energy to react to an emergency situation and 
quickly issue a 90 day order which is longer than most of the orders 
that have been implemented. Should the emergency last longer than 90, 
the Department is required to consult with the appropriate Federal 
agency of the violated environmental law. The appropriate agency will 
submit its recommendations on how to tailor the extended order to 
minimize violations adverse environmental impacts. The Department of 
Energy may exclude recommendations it believes will interfere with 
implementation of the emergency order.
  I believe this is a good piece of compromise legislation that solves 
an unnecessary contradiction in current law. I urge all my colleagues 
to support the Olson 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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