Backers of the West-Wide Governance Pathways Initiative will move quickly on a proposal to alter the governance of CAISO’s Western Energy Imbalance Market (WEIM) and Extended Day-Ahead Market (EDAM) after voting to approve the plan May 31.
The initiative’s Launch Committee unanimously endorsed step 1 of the “stepwise” proposal the group issued in April. The proposal calls for CAISO to revise the WEIM charter to elevate the oversight position of the market’s Governing Body over WEIM/EDAM matters to “primary” authority, rather than the “joint” authority it currently shares with the ISO’s Board of Governors. (See Western RTO Group Floats Independence Plan for EDAM, WEIM.)
“We’re thrilled to be able to move forward with step 1 and start to engage with … CAISO in a different way,” committee Co-Chair Kathleen Staks, executive director of Western Freedom, said after the vote.
The Launch Committee now will submit step 1 of the proposal to CAISO Board Chair Jan Schori and WEIM Governing Body Chair Andrew Campbell to kick off a stakeholder process at the ISO this month.
Pathways backers anticipate CAISO will hold an initial public stakeholder call — with the Launch Committee presenting — in mid-June. That would be followed by a three-week comment period, a committee response period and a public meeting for a joint decision by the board and Governing Body in late July or early August.
“Let me start by really thanking the Launch Committee for taking up the concept that the regulators had put forward last summer, fleshing it out and producing such an astonishing work product,” Oregon Public Utility Commissioner Letha Tawney said.
Tawney was among the group of Western state energy officials who launched the Pathways Initiative last July to increase the potential for creating a single day-ahead electricity market for the region that expressly includes California and leans on the technical capabilities of CAISO.
Arizona Corporation Commissioner Kevin Thompson, another initial supporter, commended the Launch Committee’s progress despite conflicts that arose at a previous private meeting of the committee in Phoenix.
“There was some tension there in the room a little bit here and there,” Thompson said, “but to see where the stakeholders have moved the conversation to get us toward independent governance, and giving prior primary authority to the EIM as the governing board, is a step in the right direction that gets us away from the joint authority and starts moving us really closer towards independent governance.”
The Pathways Initiative’s final proposal included a handful of changes from the original version, including expanding the responsibility of the Governing Body to respect both state and “local” policies in its decisions and highlighting the existing right of the body to institute a governance review process with the ISO board in the event of a mass withdrawal of EDAM entities from the market.
The proposal also clarified the workings of the dual filing — or “jump ball” — process that would occur in the event the CAISO board disagrees with a tariff filing approved by the Governing Body and decides to submit a parallel filing with FERC.
Next Steps and Phases
The Launch Committee also voted to continue developing step 2 of the proposal, which will seek to transfer governance of the WEIM — and its associated future EDAM — to an independent “regional organization” (RO) that the Pathways group expects to establish next year.
Step 2 poses greater challenges than the first step because it requires convincing the California legislature to pass a bill authorizing CAISO to transfer its authority over a large part of its market to the RO. While the Launch Committee itself will not be participating in those efforts, many of its members will be in their capacities as individual organizations with interests in the change.
Launch Committee member Spencer Gray, executive director of the Northwest & Intermountain Power Producers Coalition, said step 2 also must address the “core tension” between the two options being considered for the structure of the RO, which relates to “the degree of institutional independence of the regional organization and the financial liability and responsibility that comes along with institutional independence.”
Gray pointed to the series of “work streams” the Launch Committee has identified for its Phase II work plan, which focuses largely on issues embedded in step 2. The committee has appointed two leads to deal with each stream, which include:
exploring the stakeholder process for the RO, including examining sector-based approaches and how to frame policies;
dealing with CAISO-related issues;
analyzing the existing CAISO tariff, which could entail identifying the functions of a balancing authority under a new market arrangement;
addressing public interest issues, including considering the evolution of the WEIM’s Body of State Regulators; and
addressing RO formation and governance, which would range from incorporation to board nomination to securing funding sources.
Committee member Lisa Tormoen Hickey, a senior regulatory attorney with Interwest Energy Alliance, told meeting participants the Pathways Initiative will need to secure about $450,000 in funding for its Phase II activities through the end of the year. Those activities will include additional legal review for RO options, proposing an RO stakeholder process, making a final step 2 recommendation, and gathering and publishing stakeholder feedback on the recommendation.
She said the committee estimates an additional $636,000 will be needed to complete Phase III activities, which will include establishing an RO “formation” committee, developing tariff amendments and bylaws, retaining a placement firm for selecting a board and management team, and monitoring California legislative and CAISO actions.
The SERC Reliability region is positioned to meet peak demand under normal conditions this summer, although extreme heat and a busy hurricane season could cause concerns for grid operators, the organization said in its 2024 Summer Reliability Assessment released May 30.
SERC produces its summer assessment each year as a complement to NERC’s annual SRA, which the ERO released last month. (See NERC Summer Assessment Sees Some Risk in Extreme Heat Waves.) The report focuses on four key areas relevant to SERC and its subregions — demand, capacity resource adequacy, reserve margins and transmission adequacy — but “does not predict events or weather conditions” during the summer months.
In addition, SERC’s report “focuses on normal summer conditions,” or conditions with a 50% likelihood of coming to pass, while NERC’s assessment also considers an extreme “90/10” scenario (indicating a situation the ERO expects has only a 10% chance of happening). SERC’s assessment does include its summer transmission reliability study, which examines both 50/50 and 90/10 load projections.
In its assessment, the regional entity observed that its “footprint is susceptible to extreme heat, droughts, floods, tornadoes and hurricanes during the summer months.” The region has experienced an average of six heat waves per year over the past decade, compared to two per year in the 1960s. According to the National Oceanic and Atmospheric Administration’s weather forecast for June through August, the 16 states covered by SERC have a 43 to 50% chance of experiencing above-normal temperatures this summer.
NOAA also has predicted an above-normal 2024 Atlantic hurricane season, with 17 to 25 total named storms with winds of at least 39 mph, including up to 13 hurricanes (with winds of at least 74 mph). By comparison, 20 named storms occurred in the 2023 hurricane season, including seven hurricanes. In an average hurricane season, 14 named storms develop, and seven of these become hurricanes. SERC’s report noted the “risk of physical damage and disruption” to power facilities from hurricanes and other extreme weather events.
Along with these risks, the report also highlighted above-normal precipitation predicted across much of SERC’s footprint this summer. The RE warned that heavy rainfall can result in rapid vegetation growth, potentially interfering with transmission lines.
Despite these challenges, SERC emphasized that all its subregions have reported sufficient reserves to meet demand under normal circumstances.
Across the region, total internal peak demand — defined as the projected sum of metered generator outputs and metered line flows into the system, minus metered line flows out of the system — is projected at 262 GW. Total net internal demand — the total internal demand less controllable and dispatchable demand response — is predicted to be 252 GW. By contrast, last year’s actual system peak was 262 GW, against a forecast of 249 GW.
To meet this demand, SERC’s regionwide anticipated resources, including power transfers, stand at 328 GW, with all seven subregions also reporting sufficient internal resources to meet their expected loads. The smallest margin between resources and demand is found in MISO-Central — comprising parts of Illinois, Iowa, Kentucky and Missouri — where 20 GW of resources are available to meet 17 GW of net internal demand.
The region’s generation mix is varied, but SERC expects natural gas to account for just under 50% of generation capacity this summer with 161.4 GW. Coal is next with 64.2 GW at 19.9% of capacity, followed by nuclear energy — including the recently completed third and fourth units at Plant Vogtle in Georgia — at 42.7 GW and 13.2%. (See Southern Credits Strong Southeast Economy for Earnings Growth.)
The RE said fuel availability for gas and coal plants within the region constitutes a potential reliability risk for utilities in the region. SERC also noted severe weather poses a moderate risk of transmission impacts, though it also said its transmission reliability study projected only “localized thermal overloads and no voltage constraints in the SERC region” for both the 50/50 and 90/10 forecasts.
The Independent Market Monitor filed a complaint May 31 asking FERC to reject all energy efficiency (EE) offers into PJM’s capacity market, alleging that none of them meet the Base Residual Auction (BRA) participation requirements (EL24-113).
The complaint argues that EE programs that seek to help consumers buy more efficient appliances by entering into agreements with distributors and retailers — known as mid- and upstream programs — are not obtaining consumer-level data or entering into contracts with individual end users. It took aim at the measurement and verification reports of a dozen EE providers, stating they had not included information to demonstrate that installations of more efficient products occurred in a manner that would allow PJM and the Monitor to conduct audits.
“The reports fail to provide adequate evidence to demonstrate that the included EE measures meet the requirements to be approved and to receive payment. It is unjust and unreasonable to require PJM customers to pay a total of $128 million in the BRA alone for EE MW that have not been demonstrated to meet the requirements to be paid,” the Monitor wrote.
The complaint asks the commission to either bar the EE providers from receiving capacity market revenues in the 2024/25 delivery year or order PJM and the Monitor to open an investigation to determine eligibility.
Following the filing, PJM emailed EE market participants that it plans to delay signing off on all post-installation measurement and verification (PIMV) reports supporting EE offers until after the complaint is resolved, which also holds up capacity market payments to EE resources.
“Delay of PJM action on the PIMV reports provides FERC the opportunity to consider the merits of the IMM complaint,” the email said. “As a result, no payments, deficiency charges and nonperformance charges associated with energy efficiency resources for the 24/25 delivery year will be invoiced to energy efficiency providers until FERC has ruled on the merits of the IMM complaint and PJM approves or rejects the PIMV reports. All replacement transactions associated with energy efficiency providers will be terminated and may be reentered depending on the outcome of this matter at FERC.”
PJM spokesperson Jeff Shields said the delay affects all EE offers, including components not related to midstream and upstream programs.
A representative of one of the entities named in the Monitor’s complaint, who spoke on the condition of anonymity, said it’s alarming that PJM opted to withhold capacity market revenues with less than a day’s notice before the start of the delivery year because of a complaint still pending before the commission.
“From our vantage point, it is hard to see this as anything other than the IMM unilaterally suspending energy efficiency and, for reasons kind of unknown, PJM going along with that and supporting that,” they said.
They said it fits squarely in the Monitor’s role to scrutinize a particular market participant; however, the complaint appears to target an entire class of resources and enact a policy change through a FERC complaint. They noted that there’s an ongoing stakeholder process focused on the rules around EE measurement and verification that the complaint seeks to sidestep. (See “Stakeholders Regroup on Energy Efficiency Rules After MRC Rejection of Proposals,” PJM MIC Briefs: May 1, 2024.)
“It’s entirely reasonable and within the IMM’s discretion to take as close a look as he wants at any capacity resources … but to approach it in this fashion, especially in the midst of an ongoing stakeholder dialogue on how to make the rules better — it seems entirely inappropriate,” they said.
Monitor Joseph Bowring told RTO Insider the complaint addresses a longstanding issue with EE participation in PJM’s capacity market and is meant to ensure consumers are not overpaying for EE under the current rules. He said the complaint is unrelated to stakeholder discussions looking at how the capacity contribution of EE resources is measured and verified. On the approach PJM and stakeholders should take in that forum, Bowring said he believes the tariff does not support the resource class being a part of the capacity market.
“EE does not belong in the capacity construct at all,” he said.
Many of the Monitor’s arguments in the complaint echoed those made by PJM as it drafted a proposal to tighten the measurement and verification requirements for EE. During the May 1 Market Implementation Committee meeting, PJM’s Pete Langbein argued it has not been demonstrated that capacity market revenues flowing to EE participants is incentivizing consumers to buy more efficient devices they otherwise would not have.
“They shouldn’t be able to claim things that are naturally going to occur. … If I’m making a decision to purchase a high-efficiency air conditioner, an EE provider shouldn’t be able to claim that unless they can prove” they incentivized the purchasing of that unit over a less efficient product,” Langbein said in May.
Stakeholders representing EE providers pushed back, stating that the resource class efficiently provides a guaranteed reduction in consumption over PJM’s load forecast.
The complaint argues that the party seeking to enter energy savings into the capacity market either must directly control the load reduction or hold a contract with the consumer granting rights to the capacity associated with the energy savings. Without contracts between EE providers and the consumers buying efficient devices, the Monitor also raised the possibility that multiple EE market participants could attempt to include the same load reduction in their capacity offers.
“There is no evidence that Indicated Energy Efficiency Sellers through midstream and upstream programs provided legally required consideration to any end users for the rights to their projects or products. The Indicated Energy Efficiency Sellers therefore are not the owners of the requisite contractual rights required by the PJM tariff to be eligible to receive revenues from the PJM capacity market,” the Monitor said.
The Monitor also argued that EE programs that contract with retailers and distributors may not lead to lower costs for consumers buying more efficient devices and that no change in consumer behavior has been demonstrated.
The initiative is part of the Biden administration’s Energy Earthshot program. The departments of Commerce, Energy, Interior and Transportation are collaborating in the hopes of reducing the cost of floating turbines by 70% and installing 15 GW of total floating wind capacity by 2035.
Floating wind turbine technology is more expensive and complex than the widely used fixed-bottom turbine designs. Also, the first large-scale floating wind projects are in planning stages in other countries. There is no operational history at scale in U.S. waters, nor is there the specialized infrastructure to build it.
Most of the 50-plus milestones listed in the report are research and/or funding initiatives intended to change this.
With large swaths of U.S. coastal waters too deep to affix turbine foundations to the seabed, the Floating Offshore Wind Shot is designed to allow fuller use of this emissions-free power source. DOE reports that more than $950 million has been devoted to the initiative in the past 20 months.
Near-term priorities summarized in the report include:
cost reduction — by researching resource assessment, design, modeling, manufacturing, operations and maintenance;
supply chain development — by identifying gaps and solutions to inform decision-making, and mobilizing investment through federal programs and lease bidding credits;
expanding just and sustainable development — by increasing the involvement of tribal leaders, fishers and communities while increasing workforce development;
transmission development — with in-depth offshore wind transmission studies, improved planning tools and advancing critical components; and
developing co-generation opportunities — with analyses of hydrogen generation and energy storage options, and effective designs and demonstrations.
Featured accomplishments include:
DOE announced $38 million for six projects to develop floating offshore wind designs through the Aerodynamic Turbines Higher and Afloat with Nautical Technologies and Integrated Servo-control (ATLANTIS) Program.
DOE launched the $6.9 million Floating Offshore Wind ReadINess (FLOWIN) prize to develop the domestic supply chain.
DOE provided more than $18 million to support research and development of HVDC voltage source converter systems and standards, controls and curricula.
DOT awarded $427 million to establish the first West Coast offshore wind terminal, through the Humboldt Bay Offshore Wind Project.
DOE funded research to model and analyze the levelized cost of hydrogen for de-centralized offshore-wind-to-hydrogen systems.
DOI held the first floating offshore wind lease auction off the coast of California in 2022 and designated wind energy area lease auctions off the Maine and Oregon coasts in 2024.
DOI and DOC expanded the Sea Grant Offshore Wind Liaison Program to the West Coast to ensure continued engagement with the communities there.
DOE completed a study on the impacts of developing a floating offshore port network on the West Coast that will inform future collaboration efforts.
DOE convened local stakeholders to discuss key transmission needs on the West Coast.
DOE-funded projects along the Pacific Coast began collecting data to support monitoring the presence of birds, bats and marine mammals in areas where wind turbines may be sited, and to develop autonomous monitoring for marine organisms and the seabed.
DOE concluded its report by saying much more is needed if floating wind goals are to be met and said continued collaboration by stakeholders is important. It said regular summits are planned, along with periodic updates as needed to the summary report.
ISO-NE expects to have adequate resources to meet its projected 24,553-MW peak load this summer, the RTO announced as part of its summer outlook, released June 3.
The ultimate outcome will be highly dependent on weather, ISO-NE said, estimating there is a 10% chance the peak load exceeds 26,383 MW. The RTO anticipates having about 30,000 MW of capacity available.
“While the ISO expects the region to have adequate supplies of electricity this summer, abnormal conditions could force system operators to take action to maintain system reliability,” ISO-NE wrote in a press release. “Climate change has caused weather to become more volatile and less predictable, increasing the potential for system operators to resort to these actions.”
Weather is the region’s “largest driver of energy use,” ISO-NE noted, adding that hot and humid conditions coupled with unexpected generator outages would be especially difficult to manage.
ISO-NE’s demand forecasts are based on weather data from the prior 30 years, but they do not consider climate forecasts or more granular climate trends.
Data from the National Oceanic and Atmospheric Administration indicate average and maximum summer temperatures have been trending up in the Northeast over the past 30 years. Average temperatures for summer months have increased by about 0.4 degrees per decade since 1993, while maximum temperatures have increased by about 0.3 degrees per decade.
Average summer temperatures in the Northeast, 1993-2023 | NOAA
“Just a 1-degree change in temperature can impact the load and demand in New England significantly — by half a gigawatt or more,” Mike Fontaine, supervisor of operations forecasting for ISO-NE, said in a video released in May.
The RTO also highlighted the role behind-the-meter (BTM) solar has played in reducing peak demand, noting that it is responsible for approximately a 1,000-MW reduction in the summer peak. The roughly 7,000 MW of BTM solar capacity in the region has pushed the timing of the peak from midafternoon to early evening, ISO-NE added.
The forecast also includes just over 2,000 MW of energy efficiency, ISO-NE said, while dispatchable active demand response is counted as a supply-side capacity resource.
This summer will be the first following the retirement of the Mystic Generating Station, which was once New England’s largest fossil power plant. ISO-NE said it is “not projecting any capacity issues during the summer based on this retirement.”
The 24,553-MW peak projection would be an increase over the 2023 peak load of 24,043 MW, which occurred Sept. 7.
FERC on May 31 accepted SPP tariff revisions that will allow certain transmission facilities’ costs to be entirely allocated on a regional postage-stamp and cost-by-cost basis, effective June 1, 2024 (ER24-1583).
The commission found SPP’s capacity, flow and benefit analyses of the Sunflower Electric Power transmission facilities at the center of the proceeding provided benefits to the region as a whole. It said the grid operator demonstrated that its proposal will allocate the facilities’ costs in a manner “at least roughly commensurate with estimated benefits, consistent with the cost-causation principle.”
SPP’s analysis demonstrated that Sunflower’s “wind-rich” transmission zone had generation capacity that greatly exceeded its load. Flow analyses demonstrate that more than 70% of the power flows over the utility’s byway facilities are from generation unaffiliated with the zone’s load.
“We find that SPP’s capacity and flow analyses demonstrate that electricity generated from resources inside the Sunflower zone is being used by load outside of the Sunflower zone and that the Sunflower byway facilities are being used to deliver this electricity,” FERC said.
“The entire SPP region benefits economically,” from Sunflower’s facilities, the commission said. “We find that the proposed 100% regional, postage-stamp cost allocation will allocate the remaining costs of the transmission facilities in a manner that is at least roughly commensurate with benefits received and, therefore, is just and reasonable.”
SPP allocates one-third of the cost of byway projects — on lines rated at 100 to 300 kV — to the RTO’s full footprint, with customers in the transmission pricing zone where the project is built being allocated the rest. “Highway” projects — those larger than 300 kV — are allocated RTO-wide.
FERC rejected protests that the proposed allocation for the byway facilities’ remaining costs is inappropriate because those facilities were built to address zonal reliability issues or forecast load growth that never was realized, rather than regional needs. It said other arguments were that SPP’s analysis was “insufficiently granular” to determine whether the entire region would receive benefits at least roughly commensurate with costs.
“We emphasize that cost-allocation precedent does not require such ‘exacting precision’ in the commission’s cost-allocation decisions,” FERC said. “We find that a granular zone-by-zone benefits analysis is not necessary to find that SPP’s proposal to allocate the remaining costs of the Sunflower byway facilities on a 100% regional, postage-stamp basis is just and reasonable.”
The commission rejected SPP’s initial 2021 proposal to establish a process allowing entities to petition the RTO’s Board of Directors for exceptions from the highway-byway cost-allocation methodology. FERC accepted a revised proposal in 2022 in a 3-2 decision, only to reverse course in 2023 after several rehearing requests. (See FERC Reverse Course on SPP Byway Cost Plan.)
Sunflower has advocated for relief from the highway/byway process since 2017. Transmission owners largely have opposed the proposal as it wound its way through the stakeholder process, saying it would shift byway cost responsibility from wind-rich areas to others.
DALLAS — Attendees at a recent NERC and EPRI workshop on a draft standard addressing extreme weather’s effects on transmission planning now have a more personal understanding of those impacts.
Violent thunderstorms ravaged North Texas on May 28, the day before the workshop began, knocking out power to about 1 million Texans and leaving destruction in its wake. Several speakers and attendees were unable to fly into the Dallas area’s two airports after numerous flights were canceled. Those who did arrive found restaurants and entertainment options closed, thanks to the outages.
It didn’t get any better as the workshop adjourned May 30: Another line of storms rolled through the DFW Metroplex, forcing the cancellation or delay of flights out of the airports.
“It’s very ominous to begin a workshop focused on extreme weather with extreme weather,” Eknath Vittal, a senior principal technical leader in EPRI’s transmission operations and planning department and the workshop’s moderator, said May 29 in opening the workshop.
Vittal guided the diverse group of climate experts from national labs, research and development organizations, and other entities through a discussion of extreme weather and its implications for FERC Order 896 and NERC’s upcoming TPL-008 draft standard regarding extreme weather’s effect on transmission planning.
The commission’s 2023 order directed NERC to update TPL-001-5.1 (transmission system planning performance requirements) or draft a new standard by December 2024 that addresses a lack of long-term planning requirement for extreme weather events. (See FERC Approves More Extreme Weather Rules.)
developing benchmark planning cases based on major prior extreme weather events and/or meteorological projections.
planning for extreme weather events using steady state and transient stability analyses expanded to cover a range of extreme weather scenarios, including the expected resource mix’s availability during extreme conditions.
using corrective action plans that mitigate any instances where performance requirements are not met.
The NERC drafting team’s initial work product “failed miserably,” as PJM team member Michael Herman said, on its first ballot. The team is reviewing the comments it received before determining next steps, he said.
“We’ve been reading the comments that everyone has submitted about this,” Herman told his audience. “We’re taking that information and we’re working internally to process that information, and to determine what changes we need to make to the standard in order to address the concerns that all of you brought up.”
Herman says the drafting team will work to improve the standard’s language to better consider wide-area — entire reliability coordinator areas and critical flow and status information from adjacent RC areas — impacts and setting study area boundaries based on the benchmark events’ planning coordinator or planning coordinator requirements.
“In general, we see a lot of need here to bring online nuances to these studies, not just with respect to the defining the benchmark events, but actually the assumptions that go into the analysis itself,” he said.
A second draft is expected to be released for a second ballot in July. The drafting team will consider the need to define wide-area studies, bounding coordination requirements within a single interconnection and whether additional details are needed to specify addressing impacts on/from adjacent systems.
Vittal said the TPL-008 process won’t take as long as the original standard, which took five years to approve.
“Well, there’s the FERC directive behind it, so that kind of dictates the timeline in a way that might not apply to other standard-development processes,” he said. “That’s driving things at a little more pace.”
“This conference raises a lot of questions about how much data and how much analysis should be put into [the standard] because there’s a lot of assumptions and a lot of uncertainties that still require a lot of engineering and regulatory judgment,” said SPP’s Charles Yeung, executive director of interregional affairs.
He said the standard still will need a lot of work but that the workshop laid out a set of questions that will be tackled in the development process.
“I think it’s very valuable to do that upfront, rather than having to go through this iteration of postings and Q&A,” Yeung said. “This is definitely helpful because this is clearly something that’s not done in the planning horizon. So how do you translate all that analysis into a planning horizon? That’s going to be the challenge because the conditions and risks are very different going out far in the future than they are a week in the future.”
Creating the benchmark planning cases will require exchanging information on who develops the case, the weather variables that will affect inputs and assumptions, and how planning coordinators will coordinate case development with other PCs.
The standard drafting team envisions coordination among adjacent affected PCs to include sharing all applicable modeling and contingency data and understanding the benchmark event being studied by adjacent impacted PCs.
“Every time I talk to anyone in industry about what we’re trying to do … they’re so impressed because we’re trying to take on something that has not been done before,” said Soo Jin Kim, NERC’s vice president of engineering and standards. “When NERC first came into existence … it was in whether or not we had enough capacity on the system. That’s no longer the case anymore. Now with our changing resources, with almost all of the generation projects coming into the interconnection queues being renewable resources, we have to run our system very differently.”
Kim said other planning projects are on the horizon once TPL-008 is completed. She acknowledged the industry is “a little tired” of all the standards projects in play and asked for patience as NERC works to address severe weather effects.
“We do think it’s important that we continue to grow, and we continue to make sure that the momentum moves forward,” she said. “We’re now at a point where we have to keep up. I think it’s very important that we get ahead of the issue, and then we’re not playing catch-up for the next two years.”
RTO Insider co-founder and Chief Operating Officer Meredith (“Merry”) Eisner-Heidorn, whose passion for children, public education and Philadelphia sports left a mark on all who knew her, died in Baltimore on May 28, just two months after learning she had lung cancer. She was 66.
Among Merry’s survivors are her husband and RTO Insider co-founder Rich Heidorn Jr., her twin sons, Zach and Ben, 25, and her beloved dog, Daisy.
Rich and Merry got married in their living room in February 2013, a month after Rich got laid off from Bloomberg Government. Merry had been laid off from a job months before. “We figured we’d get the ‘for poorer’ part taken care of upfront,” Rich said.
Merry, who had a background in marketing and database design, and Rich, a former FERC staffer and journalist, published the first issue of what was originally called PJM Insider in March 2013. The pair grew the company without any outside funding, expanding from PJM to the six other RTOs and ISOs in the U.S. and adding two new publications, ERO Insider in 2019 and NetZero Insider in 2021.
Merry never considered herself a salesperson, but she filled that role for the first three years of the company. “I always said that without her, I’d have only two subscribers — and one of them would be my mother!” Rich said.
Merry “raised two amazing sons, helped create and grow a successful business, and shared a special union with her husband, Rich Heidorn,” said Merry’s younger brother, Randy. “Merry was tenacious and passionate, and her passing leaves a giant void for all those whose lives she touched.”
Early Years
Meredith Baer Goldner was born in Philadelphia on Sept. 9, 1957, learning to walk in Rittenhouse Square. Her father was an architect, and her mother was a homemaker.
Merry had a rebellious streak, the product of a tumultuous home life after her parents divorced.
In 1969, not yet 12, she and a friend conspired to travel from Philadelphia to the Woodstock Music and Art Fair, each telling their mother that she was staying the weekend at the other’s house. She recalled dodging photographers to avoid leaving any evidence of her presence.
She loved live music and spent many evenings at the famed Main Point in Bryn Mawr, Pa., a small coffeehouse venue where she saw numerous acts who later went on to great fame. One night, she said, singer Jackson Browne tried to pick her up on her way to the restroom.
Merry graduated from the University of Pennsylvania in 1980 with a degree in nonprofit marketing and moved to Chicago, where she worked with the famed Steppenwolf Theater Co.
Later, she joined the media department of the large Chicago advertising firm now known as D’Arcy Masius Benton & Bowles. She moved later to a small, boutique ad firm in Baltimore, and then on to New York City, where she conducted marketing and media research for outdoor media at TDI Winston.
She devoted the next stage of her career to evangelizing about the most efficient and effective ways to reach customers, developing metrics used to purchase and validate media audiences and advertising.
In 1990, she became senior vice president in the MicroMarket Strategies Division of advertising agency Earle Palmer Brown Co., based in Bethesda, Md. In that role she launched the frequent traveler program for USAir.
From 1992 to 2000, she was a co-owner of Strategic Insights Inc., a marketing consulting company that built relationship marketing programs. Its clients included Carnation, Heinz, Mobil Oil and Western Union.
Education Advocacy
After giving birth to Zach and Ben in 1998, Merry was a stay-at-home mom, active in the parent-teacher association at her sons’ school in Potomac, Md.
She served as vice president of legislation for the Maryland PTA in 2009-2010, and in 2012 as policy chair of the Montgomery County chapter of Start School Later Inc., an organization dedicated to increasing public awareness about the relationship between sleep and school hours. She also was a member of steering groups dealing with math education in Montgomery County schools.
She provided story tips to Washington Post education reporter Donna St. George, who remembered her as “so spirited and funny and caring.”
Politics
As her sons grew, she went to work in the Maryland legislature, serving as legislative director to Del. Saqib Ali and later Del. Sam Arora, from 2008 to 2011. She also managed Del. Al Carr’s 2012 campaign.
In 2014, she ran unsuccessfully for the Montgomery County Board of Education on a campaign to increase the district’s transparency and teachers’ planning time.
“She was a force of nature and someone who left an indelible mark on the lives of everyone who was lucky enough to be in her orbit,” said Arora.
Former Wall Street Journal personal technology columnist Walt Mossberg, Merry’s neighbor in Potomac, called her “an extraordinary person — smart, focused, but never too busy to be kind and friendly.” He lamented her death, saying, “Who will I call now to know how to vote in down-ballot races?”
Marriages
In 1983, at age 25, she had what she would later term a “starter” marriage to Hugh M. Jones. She said she knew within a month of the wedding that it was a mistake. They divorced in 1985.
Her marriage to Oren D. Eisner, the father of her sons, also ended in divorce.
She met Rich in Maryland in the fall of 2009, the two bonding as parents of twins and as Philadelphia sports fans commiserating over the Phillies’ loss to the Yankees in the World Series. Merry treated Rich’s three children as her own, creating the “blended family” she promised at their wedding. She loved introducing herself and her husband with a mnemonic device: “We’re Rich and Merry!”
Merry’s love for her sons was apparent to all who worked at RTO Insider, and she was delighted by her employees’ children. With workers scattered around the U.S., RTO Insider staffers meet regularly on video calls, bringing employees into each other’s’ homes, where their pets and children often appear in the background.
Deputy Editor Robert Mullin recalled that when Rich and Merry visited his home in Portland, Ore., in 2017, Merry asked if Robert’s 5-year-old son, Henry, would sit in her lap for a moment “so she could remember what it was like to hold a little boy.” Her own sons had graduated high school the previous year, and Merry was feeling some empty-nest pangs.
Robert’s wife, Christina, asked Merry for thoughts on raising Henry.
“I remember Merry offering a few pieces of advice, then pausing and saying, ‘Just enjoy him,’” Robert recalled. “Henry’s now an adolescent, and as parents we’ve been navigating the sometimes-tumultuous transition into the middle school period alongside him. During some of the more difficult moments, when I feel myself ready to dig in on my position, I’ve found myself thinking about what Merry said, letting go a little and approaching a situation with a sense of lightness and humor. It has really helped me — and Henry — through some challenges. I know I will always carry that part of her with me.”
Merry was always eager to see the drawings that NERC correspondent Holden Mann’s son, Robin, displayed at RTO Insider’s weekly staff meetings.
“My wife loved the sound of Merry’s voice in our meetings, and I know Robin will remember her kindness and interest in him,” Holden said.
Nicole Hopson, a recent addition to the RTO Insider marketing team, said her job interview with Merry was what made her say, “I want to work here.” They talked for 45 minutes about having sons, “and you could tell that her life is her kids. She’s so relatable, and I’ve never felt more understood by someone I just met for the first time.”
Merry was both den mother and disciplinarian at RTO Insider, telling staffers she expected strict adherence to deadlines.
Merry “was one of the main reasons I decided to join the company,” said CAISO correspondent Ayla Burnett. “I remember when her and I first spoke, I was struck by how strong, direct and badass she was, and I felt safe.”
“It seems so cliche to say this environment is like our extended family, but in this case, I truly feel like it couldn’t be more appropriate,” said Creative Director Mitchell Parizer. “But because of it, it’s making it that much harder to digest this news” of her death.
“She has taught me much, and has easily been one of the most influential people in my life, as well as put food on my young family’s table. All this without ever meeting in person,” said Dan Ingold, director of sales and customer engagement. “Someone like Merry can’t help but leave a mark far and wide in this world.”
“I’ll also never forget the Yiddish word she taught me the first time we spoke [on video]: ‘bashert,’” he added. “She was describing our meeting and the prospect of my hiring, but the thing that sparked it was my dog, Louie, in the background yapping and sounding just like Daisy. I took it as her way of saying the relationship appears meant to be.”
Jobs for Journalists
In a time of widespread layoffs in the media industry, trade publications like RTO Insider have provided jobs that helped journalists preserve their careers. At the beginning, Rich and Merry were the only employees of the company, which would grow to a staff of 26. Even though Rich oversaw the reporters and editors, Merry insisted she interview and approve every hire.
Merry was “hands down the kindest, most generous, best boss I’ve ever had,” said MISO correspondent Amanda Durish Cook. “She is the primary reason I believed a writing career was still in the cards for me. She put all her faith in me from the first day, and I can’t put a price on that. It is an honor, and she is my role model. I can’t overstate this: She is a jewel, and I’ve never, never had a boss like her.”
Michael Brooks, now deputy editor, was one of the first staffers Rich and Merry hired. A University of Maryland College Park journalism graduate, he was then working as a waiter at Dave & Buster’s in North Bethesda, Md. — ironically, the spot where Rich and Merry had their third date to watch an Eagles game.
Michael took over the layout of the weekly newsletter for Merry, working from Rich and Merry’s home.
“Merry not only paid me for my work but also fed me lovely dinners, gave me a place to sleep during snowstorms and let me take Daisy for walks. I will never forget that,” Michael said.
Shawn McFarland — a production editor who also writes the sometimes snarky, sometimes heartwarming stories that top the daily RTO Insider email — was hired in late 2018. He had left a sports writing job in Pennsylvania after eight years to be with his eventual wife in Maryland.
After working for two weekly papers that closed, he was sweeping the floors of a beer distributor at 11 p.m. “It was a pretty low moment in my life,” he said. “Luck finally fell on my side when I got the job. It felt like [it] saved my pride, my sanity — maybe my marriage and family if I’d have continued to struggle financially.”
“I will always be grateful to Merry for giving me my first job,” said Tri Bui, sales coordinator. “Her infectious energy never failed to put a smile on my face.”
“Merry’s indomitable spirit has been the heart and soul of the company and her family. She has been a terrific friend and colleague to everyone,” said Ken Sands, senior vice president for editorial. “Her spirit will live on with all of us.”
“As she helped recruit and onboard me, Merry told me what to expect — basically, ‘You will do your best work to maintain the standards this company is known for, and I will give whatever tools you need to make that happen,” said John Cropley, NetZero Insider’s New York/New England bureau chief. “I think it was her sheer competence, determination and confidence as much as her irrepressible good nature that made us all like, love, respect and appreciate her.”
As news of Merry’s passing spread, tributes rolled in from the industry. “Those of us who follow ISO/RTO goings-on subscribe to RTO Insider for Rich and his team’s invaluable insights — but also got to interact with the lovely Merry Eisner-Heidorn, who brought sunshine and light to every chat, no matter how brief,” said attorney Ruta Kalvaitis Skučas, a partner at Crowell & Moring.
A Move, then Illness
Last September, Merry and Rich moved from the Potomac home where she raised her sons to a waterfront townhouse in the Canton section of Baltimore, a walkable neighborhood with a wealth of restaurants. Merry reveled in totaling 10,000 steps daily with her dog.
She began doing strength training at a gym across the street from her house. Expecting to live into her 90s, like her mother and grandmothers, she reasoned she needed to build her core strength, and her tough workouts began to produce evidence of biceps.
Rich and Merry’s real estate search was recounted in The New York Times’ “The Hunt” column.
But in early March, Merry sought medical treatment for a persistent cough and shortness of breath. When the problems continued despite various treatments, she had a chest X-ray on March 26 that identified a nodule in her lung. That was followed by a CT scan that suggested cancer and a PET scan that confirmed the diagnosis. Testing also found that the cancer had spread to her liver, several lymph nodes and at least nine small spots in her brain.
On April 25, she cut her hair short, in preparation for treatment she expected would cause her to lose it all.
Three days later, she was rushed by ambulance to the emergency room of Mercy Medical Center in Baltimore with a blood clot in her lung. Based on what they heard from the ambulance, the ER personnel thought they would have to intubate Merry. But she was stabilized on the ride and came into the hospital on a stretcher cracking jokes with the EMTs.
She would need to be connected to oxygen 24/7 for the rest of her life. But during her 10-day hospitalization, she remained upbeat, querying the nurses about what led to their career choices and collecting restaurant recommendations in her new city.
Almost a week later, she met with her oncologist, who said she had stage IV lung cancer. They agreed on a 12-week treatment plan including chemotherapy, immunotherapy and radiation.
She remained upbeat, continuing to promise her sons she would dance at their weddings and her husband that — even if 2024 sucked — 2025 would be better.
On May 23, however, two days after her first chemo and immunotherapy treatment, she was admitted to Mercy again with severe nausea and increased difficulty breathing. Tests showed that her cancer had spread. Weary from the pain and nausea, she said she no longer wanted to fight. She met with her oncologist the next day and agreed to transition to hospice.
Although she would sleep for most of the following two days, she was able to say goodbye to her children and other family members. The day before her death, she smiled in recognition as her older brother, Harold, told a story from their childhood. Then, she spontaneously began singing the Herman’s Hermits’ hit 1965 version of “I’m Henry the VIII, I Am.”
She was also cheered when her children brought Daisy onto her hospital bed, where she would remain until Merry’s death. After not eating for days, Merry devoured two Krispy Kreme donuts.
She awakened for the last time about 11 p.m. on May 27 to tell her sons, “Love you guys.”
She stopped breathing and was pronounced dead shortly before 6 p.m. on May 28. Her corneas were later harvested for transplant.
Reaction
News of Merry’s death prompted an outpouring of tributes from those whose lives she crossed.
“With her boundless energy and a larger-than-life personality, it’s difficult to imagine her passing,” said Ed Tatum, now retired, who represented Old Dominion Electric Cooperative and American Municipal Power at PJM.
“Merry was an amazing force of positivity, incredible kindness and genuine warmth,” said former New York Public Service Commissioner Diane Burman, now assistant counsel in the state comptroller’s office. “She was someone I always looked for when I went to a conference that RTO Insider was at.”
“She is such a force of nature, and such a special person, that it is almost impossible to understand” her steep decline, said Piers Bearne, founder of Collingwood Group, a U.K.-based publishing consultant that has worked with RTO Insider to increase its sales.
“She was a gem to work with, and we will miss her kind and friendly disposition,” said PJM spokesman Jeff Shields.
“I don’t really have any words that measure up to the moment,” wrote CAISO CEO Elliot Mainzer. “But I just wanted you to know that you are in our hearts, and I really appreciate your contribution to our industry.”
Journalist Tony Gnoffo, who worked with Rich at The Philadelphia Inquirer before moving to the D.C. area, remembered her “generosity.”
“Your advice on pursuing romance in the capital of the free world, and your bribery with homemade baked goods of the nurses at Sibley Memorial Hospital when I broke my hip, went far beyond any reasonable expectation,” he said. “We will always be in awe of what you and Rich built together. It’s really hard to blend two families, but you did it. It’s really hard to build a successful business, but you hit that out of the park. It’s really hard to find and make perfect your dream house, and you did it so well that The New York Times had to tell the world about it.”
Survivors
Merry’s father, Steven M. Goldner, died in 2017.
In addition to her husband, she is succeeded by her mother, Roberta (Bobbi) Schimmel, of Haverford; brothers Harold (Shelly) Goldner, Esq., of Bala Cynwyd, Pa., Randy (Wendy) Goldner, of Portland, Ore., and Dr. Dan Goldner, of Philadelphia; sisters Meg Goldner Rabinowitz, of D.C., and Dr. Elizabeth (Eric) Godfrey, of Bala Cynwyd; sons Zachary, of Baltimore, and Benjamin, of Seattle; and step-children Benjamin (Rachel) Heidorn, of Phoenixville, Pa.; Dr. Elise Heidorn, of Reading, Pa., and Molly Heidorn, Esq., of Easton, Pa.
A memorial service will be held in Baltimore on June 29.
Tribute
Before becoming ill, Merry had agreed to be a speaker in early June at the 2024 summit of Renewd, an organization of niche business-to-business and business-to-consumer publications.
Summit Chair David Foster said last week that the gathering will be dedicated to Merry’s memory.
The burgeoning power demand from data centers and artificial intelligence can be met by other means than new natural gas-fired power plants that could hinder state and local emission-reduction goals, according to a new report from the Electric Power Research Institute (EPRI).
The centers’ insatiable appetite for electricity could more than double by 2030, the report says; so, tech developers and utilities should work together to turn the passive demand of these megawatt-guzzling facilities into grid assets, by using their backup generators to provide system reliability and flexibility.
“The data centers all have 100% backup generation on site” — usually diesel generators — “to prevent catastrophic failures,” said David Porter, EPRI’s vice president for electrification and sustainable energy strategy. “The backup generation has the ability to function as a grid resource in times of need; it doesn’t have to be long term.”
But creating these “shared energy” systems first will mean gaining data center willingness to set them up by addressing industry fears about how any use of their backup power might affect the reliability of their own operations, Porter said. In addition, utilities also will have to offer “the right incentives financially to the data centers to make it worth their while to participate in a program like that,” he said.
EPRI’s other options for keeping data center demand growth at lower levels include improved energy efficiency and better forecasting for new centers and the power they will need.
“Forecasts need to make better projections describing new point load locations, magnitudes and timing alongside better techniques for making decisions ― to build or not build long-lead-time infrastructure ― while facing the economic, regulatory and political uncertainty associated with siting these large [centers],” the report says.
EPRI’s research and recommendations stand in contrast to those recommending pushing back the closure of some fossil fuel-fired plants and adding new gas generation to deal with the load.
The prime example is Virginia, which boasts of having the largest concentration of data centers in the world in its northern, D.C.-area suburbs — the so-called “Data Center Alley” in Loudoun County. Local concerns center on the environmental impacts of the thousands of diesel backup generators already located at the centers and a new 500-kV transmission line being planned by PJM, as well as likely increases on residential utility bills.
The 2020 Virginia Clean Economy Act requires Dominion Energy, its largest investor-owned utility, to deliver 100% of its power from renewable sources by 2045.
The utility’s most recent long-term integrated resource plan sees most new generation between now and that deadline coming from solar and storage. But among the options considered in the IRP, Dominion’s preferred plan keeps some coal-fired generation online through 2030, converts a 415-MW coal plant to natural gas and builds at least three new natural gas plants with a combined capacity of 1,708 MW, with the final, 523-MW facility coming online in 2049.
The EPRI report counters with a focus on “scalable clean energy supply,” primarily solar, wind and storage. Tech giants like Amazon, Apple, Google, Meta and Microsoft — known in the industry as “hyperscalers” — are procuring thousands of megawatts of new clean energy to cover their operational power demands, the report says.
Top data center developers ― including Iron Mountain, Digital Realty Trust, QTS Realty Trust and Switch ― similarly have increased their procurement of clean energy, according to a 2023 report by S&P Global. Google, Microsoft and Iron Mountain have led industry efforts to match their power demand with carbon-free generation hour for hour 24/7.
In the long term, many in the industry are looking toward small modular reactors as an option for the kind of clean, dispatchable power that data centers need, but Porter does not expect the technology ― now in the early stages of demonstration and deployment ― to reach broad, commercial scale until the 2030s.
The coming clash between data center and AI load growth and the clean energy transition “is not going to be easy,” he said. “Even solar and wind resources that can really help with zero-carbon electrons … are not coming online as fast as might be needed to support this and other growth.”
To keep electricity abundant, reliable and affordable, Porter said, “optionality is still our best opportunity for that, so, I think a collection of different types of resources.” Data centers might replace their backup diesel generators with a mix of renewables and energy storage, biofuels or green hydrogen.
Just How Much?
The EPRI report also provides a detailed picture of the power demand of data centers, their uneven geographic distribution and the dramatic impact AI is having on growth trends.
While a regular Google search eats up about 0.3 Wh of power, a similar search via AI takes close to 10 times as much electricity: 2.9 Wh. The appetite of generative AI, which can produce images, video or text, multiplied by millions of worldwide users, could “lead to a step change in power requirements,” the report says.
Hyperscale data centers require 100 MW or more of power ― the equivalent demand of 80,000 homes ― and can be built and brought online within two years.
Virginia’s data centers currently represent 25% of the state’s electricity consumption. But given ongoing high growth, EPRI estimates data center power demand in the state could almost double by 2030, to 46%. According to the Virginia Economic Development Partnership, the state already has 150, or 35%, of the world’s hyperscale data centers.
On a national level, data centers accounted for 4% of electricity consumption across the U.S. in 2023. EPRI’s report models low-, moderate-, high- and higher-growth scenarios, with data center demand either edging up to 4.6% of total consumption by 2030 (low growth) or more than doubling to 9.1% (higher growth).
The EPRI study anticipates the power demand of data centers could edge up by 4.6% or more than double to 9.1% by 2030. | EPRI
Virginia and 14 other states spread across the U.S. make up 80% of that demand, the report says. Consequently, forecasts of demand growth should be looked at regionally, Porter said. Decisions about where data centers are located may depend on “several key things … like what’s the communications infrastructure, what’s the price of electricity, what’s the price of land and is there still workforce available in the area?” he said.
“Power availability is also part of that, and depending on where you are, in some parts of the country, it’s easier to get large blocks of power than others,” he said.
While not specifically mentioned in the report, grid expansion must be part of the bigger picture on meeting data center power demand, Porter said. Hyperscale centers are “not going to be distribution-served facilities; [their power] will come from transmission,” he said. “That’s part of why there’s a need for better communications, particularly with the near-, mid- and longer-term [planning] from the data centers to the utilities,” given the yearslong process for planning and permitting new transmission lines.
Grid-enhancing technologies ― such as upgrading existing lines with advanced conductors ― should be looked at as both interim and longer-term solutions for expanding transmission capacity, he said.
Energy Efficiency
Historically, data centers have been able to offset their increasing power demand through efficiency, but with the U.S. economy and data centers growing at unfamiliar and accelerated speeds, whether efficiency can keep up remains uncertain.
EPRI’s research has included “interesting conversations with hyperscalers,” Porter said. “They still firmly believe that as their capabilities to architect what happens inside data centers, coupled with continued improvements in chips … the [electricity] demand for data centers will not grow in huge leaps and bounds.”
Major efficiency gains may be made in facility cooling ― typically air conditioning ― which traditionally has accounted for 35% of data center power demand, the report says. Newer cooling technologies that use liquids to absorb and dissipate heat can cut demand by up to 50%.
Using system redundancy at data centers is another option, Porter said. Centers may have backup or redundant servers “that are running at 50% of their capability,” Porter said. “The challenge with this is that a server running at 50% of capacity uses as much energy as it would if it were running at 100% capacity.”
Other approaches include “pruning”: cutting unnecessary elements in neural networks, which reduces computational complexity — and energy demand — while “maintaining robust performance,” the report says. Power capping reduces energy use but may slightly decrease speed by 3 to 4%, Porter said.
A recent webinar sponsored by Canary Media also looked at the role of wholesale markets in responding to the increasing power demands of data centers and the potential inefficiency of non-RTO markets such as the Southeast.
“If we had an RTO that covered the whole region, you wouldn’t be building three or four gas plants for the same load,” said Maggie Shober, research director at the Southern Alliance for Clean Energy. “The flip side of that is we don’t have reserve margin sharing here in the Southeast,” so individual utilities may be predicting a need for larger reserves.
Shober and other speakers at the webinar zeroed in on the Georgia Public Service Commission’s recent approval of an updated IRP for Georgia Power after the utility predicted 17-fold growth in demand by 2030, largely from data centers. The new plan includes a power purchase agreement that would help keep a coal-fired plant in Mississippi online through at least 2028, along with three new, company-owned gas-fired plants with a total capacity of 1,400 MW.
The Clean Energy Buyers Association (CEBA) was able to push Georgia Power to a last-minute addendum to the IRP, committing the utility to develop a new program that allows large-demand customers, like data centers, to bring their own clean power into the utility’s system, said Priya Barua, CEBA’s senior director for market and policy innovation.
The utility has agreed to work with CEBA and other customers to design the program, which will be included in its 2025 IRP, Barua said. “I think it’s an important first step for opening a new path for Georgia to have kind of expanded options for meeting load growth” in the absence of an organized market.
Shober sees the Georgia Power and Dominion IRPs as a “trial run because we know this kind of load is coming. … My worry is that this sort of panic reaction and kneejerk reactions by a number of utilities means that we don’t have the right processes in place and the right level of transparency to meet that kind of load” with proactive planning and a diverse set of options.
Simon Mahan, executive director of the Southern Renewable Energy Association, said such changes should include a hard look at the value different resources bring to the grid. “Historically, natural gas, coal [and] nuclear resources … would get 100% accreditation. The utilities would just assume, ‘Oh yes, they’re always going to be around because we can turn them on and off.’
“The reality is showing that’s not the case. So, we need to appropriately accredit those resources as we’re also properly accrediting wind, solar [and] batteries.”
Barua agreed that new, more holistic thinking is needed — and maybe taking some risks. “We’ve reached the stage where we’re going to need to be uncomfortable to come up with the right kinds of solutions for the challenge that the system is facing right now.”
An appeals court has toppled Wisconsin’s longstanding ban on aggregators of demand response participating in wholesale markets.
The District IV Court of Appeals for Wisconsin agreed with the Midwest Renewable Energy Association (MREA) that the Wisconsin Public Service Commission’s circa-2009, temporary order prohibiting customers and aggregators from selling demand response in MISO was procedurally improper (2021CV41).
The court said in a May 31 ruling that the original order in fact meets the definition of a rule according to Wisconsin law and the Wisconsin PSC should have proposed and adopted it using different procedures. Judges called the order “invalid and unenforceable” and reversed a circuit court’s decision to dismiss a challenge to it.
“There is no dispute that, in issuing the order, the commission did not comply with the pertinent rulemaking procedures set forth” in Wisconsin statute, the appeals court said.
The 15-year-old order — which bars retail customers of Wisconsin’s largest utilities, as well as third-party aggregators, from selling load reductions in wholesale markets — was considered temporary when commissioners approved it. It was to remain in effect until regulators rescinded it through another order, which to date hasn’t happened.
At the time, commissioners reasoned they needed time to analyze the financial implications of demand response aggregations on ratepayers and investigate how such aggregations would affect utility-sponsored demand response programs and resource planning.
MREA first challenged the order with the Portage County Circuit Court in 2021.
The Wisconsin PSC asked the appeals court to sustain the dismissal. It said MREA failed to challenge the order within 30 days of issuance and didn’t exhaust all administrative remedies first because it didn’t ask regulators to reopen the docket to rescind or alter the order. The commission also argued it has main jurisdiction over the issue.
But the court said the order isn’t an administrative decision according to Wisconsin law and isn’t subject to the 30-day limit. It noted Wisconsin law allows plaintiffs to petition courts “for declaratory relief without first asking the agency to rule” on claims and dismissed the commission’s contention that the PSC was exclusively equipped to handle the matter.
“[MREA’s} argument that the order is an invalid, unpromulgated rule involves only issues of law that fall squarely within the circuit court’s expertise,” the court said. It remanded the case to the circuit court with instructions for the court to deem the temporary order invalid.
The court similarly wasn’t persuaded by the Wisconsin PSC’s argument that the order didn’t amount to the “general application” of a rule. Wisconsin considers rules generally applicable when the class of constituents is “described in general terms and new members can be added to the class.”
The court agreed with MREA that since the order applied to all existing and future retail customers of Wisconsin’s four largest utilities and all existing and future third-party aggregators, it met the definition of a rule.
