USA Law and Practice Contributed by: David P. Flynn, Lindsey E. Haubenreich, Thomas F. Puchner, Dennis W. Elsenbeck and Zachary R. Hirschfeld, Phillips Lytle LLP
either the power sector or economy-wide, each with distinct timelines, definitions and structures. Federal Level At the federal level, things are now much different. There have been several decisions, orders and regula- tions that have impacted the power industry, and there is an aggressive agenda to roll back some of these. More recently, in July 2020, the DC Circuit reaffirmed FERC’s authority under the FPA to regulate the partici- pation of distribution-level energy storage resources in wholesale markets without intruding on state author- ity over local distribution systems ( National Associa- tion of Regulatory Utility Commissioners v FERC , No 19–1142, slip op (DC Cir 10 July 2020)). Building on that authority, FERC adopted Order 2222 in Septem- ber 2020, which removes barriers to the participa- tion of distributed energy resources (DERs) in energy, capacity and ancillary markets managed by RSOs. Order 2222 sets the foundation for enabling groups of diverse, distribution-level and/or behind-the-meter resources (eg, electric vehicles, storage, efficiency, demand response) to be aggregated as a cohesive resource that would compete with conventional gen- eration. In November 2020, FERC issued Order 872-A, which clarified certain components of its landmark Order 872, first issued in July 2020, which updates rules that govern QFs under PURPA. Among other things, Order 872-A: • clarified the use of tiered avoided cost rates to promote renewable energy development; • relaxed certain recertification requirements for QFs; and • established rules for determining whether facilities are presumed to be at the same site for purposes of establishing whether they exceed the 80 MW cap for QFs. In July 2023, FERC issued Order 2023, which reformed the pro forma generator interconnection procedures. Among other things, Order 2023 eliminated the one- by-one interconnection study, replacing it instead with a first-ready, first-served “cluster” study process. A cluster study process allows for the study of a group of interconnection requests by multiple generating
facilities at the same time, rather than sequentially. Order 2023 also implemented enhanced financial commitments and withdrawal penalties, and estab- lished firm study deadlines to address the unjust and unreasonable rates resulting from interconnection queue delays. In March 2024, FERC further issued Order 2023-A to continuously streamline the genera- tor interconnection process. Order 2023-A maintained the findings of Order 2023, clarified transmission pro- vider obligations and extended the compliance filing deadline. 1.7 Announcements Regarding New Policies After the Inflation Reduction Act of 2022 (IRA) pro- vided a number of incentives to encourage renew- able energy production and decarbonisation of the US economy, the Republican-controlled Congress and the Trump administration have significantly curtailed those efforts and have, among other efforts, opted to promote fossil fuel and nuclear energy generation. In 2025, Congress passed the One Big Beautiful Bill Act (OBBBA), which rolled back key tax credits for renew- able energy projects and eliminated taxpayer funding for many DOE programmes that aimed to encourage development of renewable energy and related indus- tries. The Trump administration has also acted to halt per- mitting of renewable energy projects through a series of executive orders, which have spurred litigation. In January 2025, the first significant executive order directed all agencies to suspend issuing permits and leases to develop wind energy projects. Then through- out 2025, President Trump issued directives to: • require the US Department of the Interior (DOI) agency actions related to wind and solar energy to undergo a multi-stage internal review process cul- minating in approval by the Secretory of the Interior before any action can proceed; • exclude wind and solar projects from using a criti- cal online tool to comply with Endangered Species Act requirements; • direct the DOI to approve only energy projects with the highest capacity density, a standard that in effect would disqualify wind and solar projects in favour of nuclear, gas, and coal energy generation;
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