Federal, State laws clash over in-state generation in Massachusetts

On June 9, 2010 the Massachusetts Department of Public Utilities (DPU) amended a previously adopted regulation relating to the Green Communities Act. This 2008 Act requires each electric distribution company (EDC) , twice in a five-year period to “solicit proposals from renewable energy developers and, provided reasonable proposals have been received, enter into cost-effective long-term contracts to facilitate the financing of renewable energy generation within the jurisdictional boundaries of the [C]ommonwealth, including state waters, or in adjacent federal waters.”  The emergency rules adopted on June 9 amended that language so that solicitations are no longer limited to the state, state waters, or adjacent federal waters.

This change comes as a result of a lawsuit that challenged the constitutionality of the geographic limitation.  In April 2010 TransCanada Power Marketing filed a civil suit against various state officials, including the commissioners of the DPU, which argued, among other things, that the long-term contract regulations discriminate against out-of-state generators in violation of the Commerce Clause of the United States Constitution.

Through the amendment to the regulations, the Department has removed the geographic limitation for renewable energy generation.  Additionally, the DPU suspended the applicability of a related requirement that, where feasible, additional employment be created “in the [C]ommonwealth.”

To provide opportunity for comment on this matter, the DPU will hold a public hearing on Thursday, July 15, 2010. Anyone interested in providing comments may appear at the public hearing or submit written comments to the DPU by Thursday, July 15, 2010.

Source: MA DPU order 10-58 , Notice of Public Hearing


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