Illinois nuclear subsidies unlawful, EPSA, generators tell appellate court
The plaintiffs were rebuffed by the district court, which rejected all five of plaintiffs’ claims. After that decision, Abraham Silverman, in-house counsel at NRG Energy, one of the plaintiffs, took the rejection as a good sign, because it would enable NRG to address all of the claims on appeal.
NRG is one of the parties in the EPSA filing with the appeals court. The other parties in the brief are Dynegy, Calpine and Eastern Generation. Those entities all own coal and gas-fired generation that they say is disadvantaged by the ZEC program. Under the Future Energy Jobs Act, Exelon’s Clinton and Quad Cities will receive ZECs in compensation for their zero emission generation and in addition to the payments they will receive for capacity and energy from the PJM Interconnection.
In the EPSA brief, the plaintiffs seek to prove that the ZEC program intrudes upon the operation of a wholesale power market that is under the jurisdiction of the Federal Power Act, that the ZEC program discriminates in favor of in-state generation resources in violation of the dormant Commerce Clause, that the district court erred in denying plaintiffs a preliminary injunction, that plaintiffs have standing to bring the appeal, and that the Supreme Court’s Armstrong v. Exceptional Child Center decision does not preclude the right of a private party to seek enforcement of a federal law.
