One of the first priorities for new EPA chief Michael Regan will be rebuilding staff and morale at the agency, which was essentially gutted by four years of the Trump administration, said Christy Goldfuss, senior vice president at the Center for American Progress. Talking with people at the agency, she said, “it was pretty devastating to hear the loss of talent, the very clear brain drain.”

Goldfuss, who was managing director of the Council on Environmental Quality in the Obama White House, was speaking to the ACORE Policy Forum on Thursday about the opportunities for regulatory agencies — specifically, EPA and FERC — to take an active role in advancing President Biden’s clean energy policies. As a first step, she anticipates a “back to basics” approach at EPA.

“If you look at the last administration, there were 125 different regulatory environmental actions that were rolled back or thrown out. Enforcement efforts were down by 45% or so,” she said. “So, there is a real opportunity to come back and look at [reinstating] some of the very specific rules around sulfur dioxide, nitrous oxide, particulate matter, regional haze and the effluent guidelines for water quality.”

The role of regulation and regulatory authority have “not been getting as much airtime” in discussions of climate policy, said Todd Glass, who leads the energy and infrastructure practice at Wilson Sonsini Goodrich & Rosati. Kicking off a wide-ranging discussion with Goldfuss and former FERC Chair Norman Bay, Glass said regulation provides a tool that can be used “right now. We don’t have to wait for legislation to make this go.”

Both Bay and Goldfuss see multiple possibilities for EPA and FERC to experiment and push boundaries.

Bay, who is now head of the energy regulatory group at Willkie Farr & Gallagher, was optimistic about FERC taking a more progressive turn under Chair Richard Glick, reeling off a list of technical conferences on electricity market design, electrification and extreme weather events already scheduled for the coming months.

“One thing that I think cannot stand is the minimum offer price” (MOPR), Bay said, referring to FERC’s controversial 2019 ruling requiring PJM to set minimum prices for state-subsidized renewable energy resources bidding into its market. “You can’t have FERC policy in constant tension with state policies. These are policies that we should actually be supporting and not trying to impede.”

On Transmission and Infrastructure

Interconnection policy is another issue that needs a regulatory fix, Bay said. Grid operators’ queues currently “have many gigawatts of interconnection requests, and renewables developers can be stuck with these huge network upgrade costs,” he said. “To me, that is symptomatic of a failure of transmission policy, because if you had the transmission in place to take into account public policy needs, those costs would not be borne by the developer to begin with.”

Passed a decade ago, FERC Order 1000 was supposed to accelerate transmission planning and deployment, but, Bay said, “I think almost everyone would say that it has turned out to be a disappointment, particularly with respect to interregional planning and cost allocation. FERC promoted it but did not require it.

“Stakeholders actually seem to be in two camps: those who think that FERC should start over again, and those who think that FERC should fix Order 1000,” he said. Another option would be for the Department of Energy to transfer its ability to designate national transmission corridors to FERC, he said.

Bay also pointed to Section 1222 of the Energy Policy Act of 2005, which he said could “allow us to enter into these public-private partnerships with developers, where the transmission can be built if certain needs tests are met and where the transmission line goes through states served by [Southwest Power Administration] or [Western Area Power Administration], which actually covers a big chunk of the United States.”

With anticipation building around exactly what will be included in Biden’s infrastructure package, Goldfuss sees challenges ahead. “Even if we get all the money through Congress and everything is going well, we have not built big things in this country in a very long time,” she said. “The National Environmental Policy Act can be an impediment; it can be a facilitator. I’m hopeful we’ll see new, strong leadership that will drive a governing approach to our permitting process, that delivers on these large infrastructure projects.”

On Environmental Justice

At FERC, “Chairman Glick has already announced that he’s creating a special position on environmental justice,” Bay said. “That will be cross-cutting, working with all the program offices, to make sure that environmental justice considerations are fully considered in the commission’s decision-making process. I think the commission is going to give a lot of weight to those particular issues, because at the end of the day, for FERC to certificate gas projects, for example, it has to find that the project is in the public interest.”

Goldfuss said environmental justice proposals put out at the end of the Obama administration were rolled back by Trump. Moving forward now, she said, “we have to develop an approach the entire federal government can embrace, so that industry has some sort of continuity of expectations across agencies. I think that can be done working with industry to figure out what’s possible and what tools are available to do it quickly. Speed is going to matter here.”

As will enforcement, Goldfuss said. “There’s an opportunity here to staff up and make sure that we’re driving the regulations that are on the books now. This delivers on the promises that have been made to communities, where we say we’re reducing the pollution that you’re concerned about [and] the cumulative impacts in your communities by enforcing the laws that are on the books.”

‘Rifle Shot’ Reforms

Glass closed the session by asking Goldfuss and Bay for quick “rifle shot” reforms: small changes to existing or future law that could have a big regulatory impact.

Goldfuss wants “some words reaffirming the EPA has authority to regulate greenhouse gases. I think language like that, which just makes it clear, could have a huge impact and go a long way in providing the cover for a really ambitious regulatory agenda around climate.”

Bay proposed a law “to require all transmission owners to join an RTO or ISO. It would be very politically controversial,” he said. “But, certainly, it would promote competition, which would go a long way toward mitigating concerns about the accumulation of power in the electric industry.”

A national transmission authority that frames transmission expansion as integral to the nation’s economy ― an interstate highway moving electrons ― was another of Bay’s big-impact ideas. “We should all have a sense of urgency here, because as we all know, building out a big transmission line, a high-voltage line, is easily an eight- to 10-year process. And so, we really need to have this sense of urgency.”