On Friday, April 14, 2017, the U.S. Department of Energy (DOE) issued an Emergency Order under Section 202(c) of the Federal Power Act to the Grand River Dam Authority (GRDA), an agency of the state of Oklahoma, to operate Unit 1 at the Grand River Energy Center (GREC) as needed to provide dynamic reactive power support in the GRDA service area until replacement generation capacity at the GREC becomes available.  The Van Ness Feldman team of Janet Anderson, Britt Fleming, Van Smith, and David Yaffe led the effort with GRDA to secure the Section 202(c) emergency order.

GRDA had originally intended to retire Unit 1 and replace it with new, natural-gas fired generating capacity by April 16, 2016, which was the extended compliance deadline for the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standard (MATS).  However, because of delays in constructing the replacement generation, Van Ness Feldman assisted GRDA in obtaining a Clean Air Act Section 113 Administrative Order from EPA, which allowed Unit 1 to continue generating power for an additional year, until April 16, 2017.  During the intervening year, however, weather-related events further delayed construction of the replacement generation and damaged GRDA’s remaining generating unit at the GREC.  Because of the unexpected unavailability of these generation resources, a shutdown of Unit 1 on April 16, 2017 would have resulted in no available generation at the GREC and posed a risk to grid reliability, which gave rise to the need for emergency relief under section 202(c).  

Van Ness Feldman’s team of environment and energy attorneys and policy professionals worked closely with GRDA to ensure that it obtained workable and timely relief from DOE under Section 202(c). 

DOE has only issued emergency orders under Section 202(c) in six previous instances.  In 2015, FPA Section 202(c) was amended by the FAST Act to require that orders under that section minimize conflicts with environmental laws and to eliminate liability for violations of those environmental laws associated with running pursuant to a Section 202(c) emergency order.  The GRDA order was the first order issued under this revised Section 202(c) authority.