By Rich Heidorn Jr.

Tony Clark’s term as FERC commissioner ended nine months ago, but he hasn’t stopped thinking about the issues that animated him during his four-year tenure.

Clark, a non-attorney who joined law firm Wilkinson Barker Knauer as senior adviser in January, had his coming out in a 16-page white paper titled “Regulation and Markets: Ideas for Solving the Identity Crisis.” It was released at the National Association of Regulatory Utility Commissioners’ summer meeting in San Diego, a fitting venue for Clark, a former North Dakota regulator who served as NARUC president before his FERC appointment.

Clark’s paper mostly addresses the eastern organized markets being buffeted by state policy initiatives, but he also discusses new technologies and trends. He offers his familiar wit, for example, linking the 1978 Public Utility Regulatory Policies Act (PURPA), which Clark has long criticized, to the era of bell bottoms and disco.

Nothing in his recommendations are particularly divisive, surprising or novel. His recommendations on performance-based ratemaking and changes to distribution rate structures, for example, are sensible but no surprise to anyone following New York’s Reforming the Energy Vision (REV).

Perhaps his most interesting observation is that moves by New York, Illinois and New England states to subsidize nuclear plants or require utilities to sign out-of-market contracts for renewables have exposed “how thin the veneer of pro-market fidelity” is. It’s an issue he first considered in the 1990s when he — then a state legislator — weighed whether North Dakota should abandon its traditional regulated utility model for retail choice.

Although his “philosophical conservative” side favored competitive choice, his “operational and practical conservative” side won out. “Like nearly all other states with much below-average-cost electricity, the value proposition for [competition in] North Dakota did not pencil out,” he decided.

Clark concludes that recent moves to increase state control over wholesale generation market “is consistent with the factors that have driven public policies in electricity for the last two decades, not a departure from it.”

“For many, a ‘freer market’ was never the end goal,” he said. “The market was a tool. Affordable power was the goal. The current markets are still procuring affordable power, but many state public policy makers no longer see that as the only goal.”

He also expressed doubts that the eastern RTOs will succeed in their efforts to accommodate state choices while maintaining capacity markets as the primary source of resource adequacy. “While I applaud their efforts to look at creative solutions, I am skeptical of whether further dissection of administrative auctions into state-sponsored resources and competitive resources can succeed,” he said. “The complexity of these administrative constructs is remarkable as it exists today. Layering even more auctions, set-asides and carve-outs onto to the current construct may ultimately tumble the house of cards.”

RTO Insider talked to Clark last week about his paper and his new role. This interview has been edited for length and clarity.

RTO Insider: OK, so I read through your white paper and I’m curious: Who was the audience for the white paper and what was your goal in writing it?

Clark: Yeah. Well, I suppose there’s two audiences. One is more general and then one is probably a little bit more specific. The general audience is just for the public policymakers and certain thought leaders within the electric industry. On a more specific level, the way the paper turned out, it tended to be pretty focused on states. What I would hope is, especially thought leaders in the states in regulatory commissions — but also in legislatures and governors’ offices — would take a look at it and say, “You know what? There’s some things we should be thinking about.” So that at least we’re purposeful as we’re moving through this time of transition in the electricity sphere. The concern is that it’s not purposeful and it’s sort of an ad hoc collection of moves like I talked about in the paper, which is one piece at a time, where we keep layering on all these different public policies that when you step back and look at, it may not make sense in the whole.

RTO Insider: Yes. I liked your reference to the Johnny Cash song [“One Piece at a Time,” which tells a story of an assembly line worker who sneaks Cadillac parts out of the factory, later building a car mismatched from models from 1949 through 1973.] That’s one of my favorite songs.

Clark: Yeah, that’s a great song.

RTO Insider: Now that you’re no longer a commissioner, were there things in this paper that you said that you would not have been able to say before?

Clark: That’s an interesting question and I hadn’t thought of it that way. I don’t think so. I mean, it’s not dissimilar to some things that I thought and said along the way at first. It’s probably the sort of biggest compendium of all these thoughts put together in one spot. I probably would have said similar things. It’s just when you’re in the commission, you usually don’t have the time, sometimes, to sit down and really think about these things a little bit more holistically. Your day-to-day grind of just moving through your cases kind of takes things over. … Now I have a little bit more time to, I guess, sit back and contemplate.

RTO Insider: I recall covering [Wilkinson Barker Knauer partner] Raymond Gifford at the [Independent Power Producers of New York] conference in New York back in May. The subject there was the carbon adder, and he had said, “It’ll never happen.” (See Carbon Adder to Test FERC’s Independence, IPPNY Panelists Say.) He agreed that “the most elegant solution is you price carbon into the market” but said “FERC is not going to sign off on a carbon imposition.” Do you agree with that?

Clark: Well, generally yes. I mean, some of it depends a little bit on how you frame the question. If the question is, “If the states, or a collection of states, or the federal government for that matter” — [chuckles] but I don’t see that going to happen any time soon — “put on some sort of carbon adder, would FERC recognize it and allow it to be bid into the markets?” I think the answer there is probably “yes.” The commission already does that in the case of [the Regional Greenhouse Gas Initiative] and California. Other governmental bodies through their own legitimate authority putting on a carbon adder — would the commission allow that to be bid in the market? I think so, because it would just be like any other governmentally imposed cost: It’s allowed to be offered into the market.

Now, do I think FERC on its own motion is going to go out and throw on a carbon adder? I don’t think so. I don’t think it would be a wise idea beyond that. I mean, one — just take the politics of what the commission is [facing] now and for the foreseeable future. I don’t think it’s going to happen. No. 2 … it wouldn’t be in the commission’s own interest to do it for a number of reasons. You’d get beat up on Capitol Hill like you can’t imagine. And it probably is a little bit, I think, legally suspect. … I think it’s a stretch under the Federal Power Act. … And then No. 3, which is as big as anything — if you’re a commissioner who is interested in seeing the potential benefits of a joint dispatch model [traditionally regulated states that have joined ISOs or RTOs, such as most of MISO] migrate to other areas of the country, the fastest way to stop that development would be for FERC to go in and start imposing carbon taxes.

And if you look at what’s starting to come together in the West, we’ve talked about not just the [Energy Imbalance Market] but potentially more of a joint dispatch market in certain regions. … If you want western commissioners to flee from that idea and never come back to FERC again, [never] talk about it, just throw on a carbon tax. I think it would be self-defeating itself in terms of development of markets. It would probably halt markets where they are, in their tracks. You might even have some states start seriously thinking about pulling out of markets that they’re already in. If you’re from the part of the country I’m from — big red states in the middle of the country that are part of an organized market — if FERC starts looking at levying quote-unquote “carbon taxes” on its own, theoretically, you could see a real backlash in state legislatures in terms of what they allow their utilities to do. And remember that … these markets, they’re voluntary.

RTO Insider: When I was reading through your recommendations, they all seemed very sensible, very much in accord with some of the things that have been discussed in other states. For example, [New York’s Reforming the Energy Vision initiative], with their attempt to de-couple usage from revenues and provide ways for performance-based ratemaking and ways for utilities to make money as system platforms. Am I missing anything in your paper? Was there anything that you felt where you were striking new ground, where you were carving out new proposals, or were you more surveying the landscape and saying, “This is a round-up of what I think makes the most sense,” based on the current state of play?

Clark: Yeah. I think it’s probably more the latter, and my hope was to put it in the conversational style, so that it was accessible to a wide variety of policymakers. Some of them maybe don’t every day play in the electricity space. As much as anything, it was probably a distillation of trends that are out there and potential ways to frame the issues as you think about it.

A lot of that deals with rate design, making sure that you’re getting the distribution side of things right because this grid is changing. If you keep the same old rate structures that you’ve always had, you’re going out come out with a lot of arbitrage opportunities for new entrants and things like that. You want utilities to be able to provide the platform that allows for other players to do what they’re going to do, but to do it on a level playing field in a fair manner that allows them to, and gives them incentives to, invest in that network.

RTO Insider: You’re not going to have a robust distribution side network if you don’t come up with a mechanism to allow those investments to be made. Anything I haven’t touched on that you think is important in the context of this paper?

Clark: The thing that struck me as interesting over the last few years is, I thought, if there’s one region of the country where you might actually get a strong consensus for some sort of carbon price, it was going to be New England because you’ve got, politically, a group of states that probably are seeing the issues [similarly] and they’ve already joined RGGI and are part of the organized market.

I would have thought there might be a coalition here that says “maybe you need to step back from some of the other public policies and instead really depend on carbon price to drive the market.” But it’s just never coalesced and I think it shows the difficulty — even where there’s relatively fertile ground for policymakers to rally around the very transparent carbon price. Because it really — it’s transparent, which is maybe why it’s so tough to get done even under favorable circumstances.

RTO Insider: Yeah, I think some of the smaller [New England] states are just not as willing to take on more renewables in the way that Connecticut and Massachusetts are. We heard that loud and clear in some of the sessions we’ve attended from the likes of New Hampshire and Vermont and Maine, that the size of the carbon price, to make a difference, would be kind of a non-starter for them.

Clark: Yeah. That’s just it. RGGI, as I mention in the paper, has never really been used to strike dispatch or drive resource selection. It’s really been just a funding source for energy efficiency programs and things like that. It funds programs at the state level, but it doesn’t really drive resource selection in any meaningful way if the prices are just set too low.

RTO Insider: Right, right. Well, great. Well, thank you very much for your time this morning. I appreciate it.

Clark: Not a problem.