Pillsbury’s Stephen Humes Weighs in on DOE’s Fossil Fuel “Stay-Open” Orders

In an interview with Utility Dive, Pillsbury partner Stephen Humes said the DOE’s orders appear to follow a consistent pattern of preventing fossil fuel plant retirements in states with strict environmental or clean energy policies.

“The common theme is fossil generators being encouraged by certain states to close [to make way for] renewables,” he said.

Humes added that although state officials and environmental advocates are pushing to retire aging fossil fuel facilities, courts are likely—for now—to defer to the DOE’s emergency declarations, even if the justification is questionable.

“There is a presumption that a declared emergency is an emergency,” he said.

On the question of federal overreach, Humes said U.S. energy law has generally been “fairly well-understood” to divide authority by granting the federal government oversight of wholesale power markets and interstate transmission, while leaving control over generation and retail sales to the states. However, he warned that courts can overturn even “well-understood” precedent, adding that the Trump administration appears inclined to expand federal influence over the power sector, pointing to proposals like accelerating large-load interconnections.

If legal challenges to the DOE’s orders reach the U.S. Supreme Court, Humes said, “there is a chance that [the court] could further extend federal jurisdiction over the power industry and encroach on what has traditionally been understood to be state jurisdiction.”

“That’s one of the primary issues that will play out in these cases: the distinction between federalism and state sovereignty,” he said.

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