Illinois District Court Rejects Federal Preemption Challenges to State Zero-Emissions Credit Program

By Molly Suda, Donald A. Kaplan, William M. Keyser, John L. Longstreth, and Elizabeth P. Trinkle

UPDATE: On July 25, 2017, the New York court issued its decision, which also upheld New York’s ZEC program. We will have more analysis of that decision in a later post.

On July 14, 2017, the U.S. District Court for the Northern District of Illinois issued an opinion dismissing challenges to the state of Illinois’ zero-emissions credit (“ZEC”) program. Illinois’ ZECs are tradable credits created by statute that, in the court’s words, put “money in the coffers of Exelon from the sale of ZECs that will give it a benefit when pricing its energy in the wholesale market relative to competing energy producers that do not receive ZEC payments.” The ZECs represent the zero-emissions attributes of nuclear power and would provide additional revenue for nuclear power plants, whose owners state they are unable to cover their costs in the current low-price wholesale energy and capacity markets.

In its decision in the companion cases Village of Old Mill Creek v. Star and Electric Power Supply Association v. Star upholding the ZEC program, the court rejected arguments that Illinois’ program is preempted by the Federal Power Act and further concluded that ZECs do not discriminate under the dormant commerce or equal protection clauses. If affirmed on appeal, the opinion could have important implications for the future of other states’ programs aimed at supporting at-risk nuclear power plants and may influence the Federal Energy Regulatory Commission’s (“FERC”) outlook on its role in integrating state programs and policies into wholesale energy markets.

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