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NY Nuke Plant Subsidies Will Likely Face Legal Battle

Publisher: Law360
August 2, 2016

Joe Fagan was quoted in an article, "NY Nuke Plant Subsidies Will Likely Face Legal Battle," in Law360. The article is about the challenges that nuclear plant subsidies offered by New York state in its newly announced clean energy standard will likely face due to a U.S. Supreme Court's recent decision. The ruling found that plant subsidies offered by Maryland usurped federal authority over wholesale electricity markets. The standard calls for the state to have half its electricity come from renewable sources by 2030, and also requires all six New York investor-owned utilities and other electricity suppliers to buy zero-emission credits starting in April 2017 that will be used to prop up two nuclear plants in central New York. Fagan notes that opponents of the New York initiative will likely argue that the state’s subsidies infringe upon FERC's wholesale authority, and in so doing, can expand the scope of the Hughes decision beyond the narrow parameters set by the Supreme Court. "If you were to take the views of the opponents to their logical extreme, you could argue that any subsidy for nuclear generation is, by definition, preempted by the [Constitution's] supremacy clause and violates the Federal Power Act," he said.


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